NRPLUS MEMBER ARTICLE G eorge Floyd was killed on May 25. The very next day saw the release of Evaluating Police Uses of Force, a book from the law professor Seth W. Stoughton, the police consultant Jeffrey J. Noble, and the criminologist Geoffrey P. Alpert.
The book is incredibly topical, clearly written, and at 352 pages relatively brief. But it does not make for gripping reading. It catalogues, often tediously, countless statutes, policies, training practices, tactics, and court rulings from across the country. Cops’ use of force is subject to numerous standards at once — the federal Constitution as interpreted by the Supreme Court, state laws governing homicide and other crimes of violence, departmental policies on proper tactics, and even the community reactions to viral videos that shape the broader debate — and Stoughton et al. discuss the matter in depth from all of these angles. They even include an appendix with the texts of states’ use-of-force and justifiable-homicide laws.
Though the authors’ approach may be granular and dry, it also makes Evaluating Police Uses of Force an excellent reference for lawmakers and reformers, and allows them to highlight key deficiencies in the status quo. Here are a few major issues that stood out to me in reading the book, issues that we as a country should seek to address as we decide how to proceed in the wake of the Floyd killing and the resulting protests and riots.
The Laws Need Updating
In 1985, the Supreme Court ruled that when a police officer kills someone merely to prevent them from escaping, with no reason to believe there’s an imminent threat to life or limb, he violates the Constitution. When this happens, the officer can be sued under federal law. But in a few states — Alabama, Florida, Mississippi, and South Dakota — this antiquated practice is still officially sanctioned by state law, meaning it is a defense to criminal charges there.
This is just one specific issue related to how officers use force, but it demonstrates the broader problem that these statutes are not rethought and rewritten often enough. Some states, including Missouri and California, have overhauled their rules in recent years, and lawmakers elsewhere should inspect their statute books for problems. It’s better to think things through proactively than to discover your statute is a mess in the midst of a controversial case — as happened to Missouri, which still had the fleeing-felon rule on the books during the Ferguson uproar and offered the grand jury in that case confused instructions as to what standard it should apply.
We Need to Rethink How We Treat Cases where Bad Decisions Cause a Fatal Encounter
Debates about police shootings often focus, quite rightly, on what was happening at the exact moment the officer pulled the trigger: Did he, or did he not, have a legitimate reason to believe there was a serious threat and lethal force was called for? But there are also cases where officers unnecessarily put themselves in situations that predictably become dangerous, and the law doesn’t always have a good way of addressing such scenarios. In cases involving the constitutional standard, federal appeals courts disagree over whether the analysis of a shooting should include earlier decisions or should focus merely on the “final frame.”
Stoughton et al. provide a number of examples of “officer-created jeopardy” that show how different these cases can be. Take, for instance, a case where an officer (working off-duty as a security guard) stood in front of a car to stop a suspect from escaping, and then shot the suspect when he accelerated toward her: Cops should probably be trained not to stand in front of cars, but I find it hard to imagine prosecuting the cop for shooting the guy who stepped on the gas. Ditto for a cop who too readily approaches a suspect armed with a knife, is attacked, and uses lethal force in response.
On the other hand, when cops pull up too closely to someone they think is armed, jump out of the car, and wind up killing a twelve-year-old holding an Airsoft gun within two seconds, things look a lot different. I think it would be worth it for states to create a law tailored to situations like that, one that provides appropriate justice while recognizing that the biggest problem was a bad early decision that made the situation worse, not the split-second reaction at the end.
We Must Produce More Research on Police Tactics
As Stoughton et al. note, there are a lot of different opinions about how to teach officers to use force, and departments provide their officers all sorts of materials, such as diagrams like the one below, to guide their decisions on a general level. But there is little objective evidence as to what works best.
If we zoom in to the specifics, we see even more variation. Different departments allow different neck and choke holds in different situations, to pick a particularly relevant example, and two states have banned respiratory choke holds (which restrict air flow) except in situations where lethal force is appropriate. Departments also vary in terms of what uses of force need to be documented in a formal report.
And just as they’re trained and supervised differently, cops in different places use force at different rates. New Mexico has the highest rate of fatal police shootings in the country at nearly one per 100,000, New York the lowest at about one-tenth that. These differences are far too big and idiosyncratic to be driven purely by crime rates or the presence or absence of discriminated-against minority groups. (Alaska, Oklahoma, Arizona, and Colorado round out the top five behind New Mexico, while Connecticut, Massachusetts, Rhode Island, and New Jersey follow New York up from the bottom of the list.) We need to study what makes cops in some places resort to lethal violence so much more often than cops in other places.
None of this is easy, of course. But by pulling together so much important information in a single place, Stoughton and his coauthors have done the country a service at a very fraught time.