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Responding to police use of force: What the law says — and what are the alternatives?

Hennepin County Attorney Mike Freeman was correct in not indicting the officers who killed Thurman Blevins. He could never have secured a conviction because the law is on the side of the police.

Hennepin County Attorney Mike Freeman was correct in not indicting the officers who killed Thurman Blevins. The reason is simple — he could never have secured a conviction because the law is on the side of the police. This point has largely been missed in the debates regarding policy use of force. But having said that, also largely missing from the debate is a discussion on police alternatives to violence, how to de-escalate conflict, and where race fits into how law enforcement officials approach tense situations where personal or public-safety issues are present. If Freeman and others want to take a leadership position on this issue, they should explore these questions.

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Let’s start with the law. Police are legally empowered to use force, including deadly force, if they believe their own safety or the public’s safety is immediately and seriously threatened. Historically, police who use excessive force could be charged criminally or sued under state tort law. Neither option works well. Sovereign immunity bars many suits, prosecutors rarely charge officers, and juries are seldom sympathetic to victims, especially if they are criminals.

The basic legal framework for holding police responsible for excessive use of force was established in 1978 with Monell v. Department of Social Services. In Monell, the Supreme Court ruled that municipalities can be held responsible for police actions when and if plaintiffs (like victims of police brutality, for example) can show that those actions were the product of official police policy or part of a police department’s culture, customs and practices.

Three elements must be proved

schultz portrait
David Schultz

The problem is, this is very hard to do – and therefore it’s tough to hold police accountable for misconduct. To hold police civilly responsible for civil rights abuses three elements must be proved. First, the person filing a complaint must be a person protected under the statute. Second, the defendant (police officer) must be acting under the color of the law. Third, the alleged violation must seriously infringe on a constitutional right. Victims also have to show that police acted with deliberate indifference, which is a higher legal standard of proof than negligence. This is a very high bar.

And it gets worse. When it comes to use of force, police have significant latitude. Not all uses of force are illegal, nor are all injuries actionable (of course, this make sense; police sometimes do need to use force for good reasons).

The Supreme Court has issued two major decisions that explain when police use of force is excessive. In Tennessee v. Garner the Supreme Court ruled that the use of excessive deadly force is a Fourth Amendment violation, that is, a kind of illegal search and seizure. To determine police liability, one must balance the citizen’s interest versus the government’s. The citizen’s interest is substantial, of course: not to die. To overcome that interest, police must show that the officer believed that the suspect poses an immediate threat of serious physical harm to the officer or others.

In Graham v. Connor the Supreme Court created an even softer standard for the excessive use of non-deadly force, based on whether the use of force would be justified from the perspective of a reasonable officer with 20/20 hindsight.

Constitutional cover

Garner and Connor provide constitutional cover or an affirmative defense for police officers to use force. Charge law enforcement officials with use of force – criminally or civilly – and these cases along with state law provide protection to use such tactics to enforce the law.

Excessive use of force cases are hard to win for all the reasons criminal and state tort liability cases are. Moreover, public fears of crime complicate matters. So does racism, especially in situations with mostly white officers – and often mostly white prosecutors, judges and juries – and people of color as victims. But another reason these cases are hard to win is that the law determines excessive force from the perspective of the police officer, not the victim. Few juries are willing or able to second-guess a cop. Given the law, there was little chance Freeman could have secured a conviction. 

Think about it – if the officer who killed Philando Castile could not be convicted by a racially diverse jury, what chance was there to secure a conviction here in a trial involving police use of force against Blevins? Like it or not, this is the law. Perhaps it should be changed, regardless of the race of the victim, and that is a reasonable debate that should occur.

More debates should be taking place

But there is also another couple of debates that should take place. Policing is not simply anymore about the direct use of brute force. It is about conflict management and how to de-escalate tense situations. Policing now is supposed to be more about interpersonal relations than it is about ordering people about. This is was community-orientated policy and problem-orientated policing is about. Watching the Blevins video, one should be struck by how bad the police managed the situation. Yelling, swearing, and threatening someone is not the smartest route to de-escalating a tense situation and getting someone to surrender, especially at a time when people of color have a heightened fear in terms of their interaction with police.

Regardless of what the law empowers law enforcement officials to do, what training do they have in Minneapolis to encourage them to seek and pursue alternative de-escalation strategies? Moreover, and this is one place where race comes it, do the police use one set of strategies with Caucasians and another with people of color, or is one technique used in a racially arbitrary way? These are important questions that need to be studied and examined in Minneapolis.

In the end, protests are fine and politicians’ speeches make good headlines. But a more constructive role or step for Mike Freeman, elected officials, community activists, and even the police if they really want to address law enforcement use of force involves understanding the current law and asking whether it should be changed and what are the alternatives to current policing practices that are not racially arbitrary.

David Schultz is a Hamline University professor of political science. He blogs at Schultz’s Take, where this commentary first appeared. For nearly seven years Schultz taught criminal justice courses, including a course on civil and criminal liability. He also edited the Encyclopedia of American Law and Criminal Justice.

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