NRPLUS MEMBER ARTICLE T he recent killing of George Floyd by Minneapolis police officer Derek Chauvin and subsequent protests throughout the U.S. have once again brought issues of race, justice, and police accountability to the center of our national debate. The tragedy of Mr. Floyd’s death is compounded by the deaths of many other unarmed Americans at the hands of those entrusted to serve and protect our communities: Eric Garner, Michael Brown, Alton Sterling, Tony Timpa, and others. As a result of these tragedies, the public’s confidence in the police has decreased. Many have reasonably come to wonder: How can a police officer kill an unarmed citizen and so often escape criminal prosecution and conviction? While current legislative efforts at police reform are mostly aimed at ending qualified immunity, such legislation, if ultimately passed, would only make it easier for victims to obtain monetary damages in a lawsuit against a police officer. It would do nothing to hold police officers criminally accountable for abusive conduct.
In order to remedy this shortcoming, Congress should adopt a Uniform Code of Police Justice (UCPJ) modeled after the Uniform Code of Military Justice (UCMJ), which currently applies to U.S. military personnel. Such a code would recognize the unique role that police officers play in our society by holding them criminally accountable for misconduct in the same way that military personnel can be held criminally accountable. Broadly speaking, a UCPJ would achieve this in two ways: (1) by adopting laws from the UCMJ, such as those covering conduct unbecoming an officer and dereliction of duty, that would place heightened legal obligations on officers in the performance of their duties; and (2) by more clearly defining what constitutes a justifiable use of force in the same way that the military’s rules of engagement are clearly defined. Indeed, violations of the military’s rules of engagement are criminally actionable under the UCMJ.
Imposing Heightened Legal Obligations on Police Officers
Current criminal law treats police officers differently from regular citizens, but in a partial and inconsistent manner. For example, in recognition of the function police serve in maintaining the peace of our communities, they are entitled to special legal defenses against a civil suit or criminal prosecution that arises out of their use of force (i.e., they are entitled to argue that the use of force was reasonable or justifiable under the circumstances).
The law does not, however, impose any corresponding affirmative duties or obligations to regulate the use of this unique authority. This approach differs sharply from the military context, where the UCMJ imposes such duties and obligations in the form of unique criminal provisions, such as dereliction of duty, failure to obey orders, and conduct unbecoming an officer. The failure to impose such affirmative duties creates a mismatch between the unique powers that society grants police officers and the regulations necessary to ensure the responsible exercise of those powers. The adoption of a UCPJ based on the UCMJ would remedy this.
Understanding the need for a UCPJ requires first understanding the reasoning behind the UCMJ. Soldiers are tasked to defend this country, which may require assaulting and killing individuals as part of accomplishing their mission. For the sake of good order and discipline in the execution of this mission, soldiers’ conduct and behavior must be effectively regulated. Soldiers are thus subject to a set of substantive criminal laws separate from those that apply to civilians. The UCMJ contains two such laws that should be used in the policing context: (1) dereliction of duty (failure to obey an order) and (2) conduct unbecoming an officer.
Dereliction of duty involves a soldier who fails to perform his or her required duties. Under the UCMJ, soldiers can be criminally prosecuted for dereliction of duty in cases of simple negligence. This differs sharply from the civilian system, in which civilians can be criminally prosecuted only for gross negligence. For example, in United States v. Lawson, a first lieutenant in the Marine Corps was criminally prosecuted for dereliction of duty for failing to post individuals with reflective vests (often referred to as road guards) at designated checkpoints in order to facilitate the safe movement of vehicles at night. In the civilian system, this kind of negligence would likely subject the individual only to potential tort liability — not criminal sanction as was the case in Lawson. Military courts have criminally prosecuted soldiers for a wide range of behavior under this law, including violation of the rules of engagement and failure to report drug use by subordinates.
Accordingly, a UCPJ could pattern its culpability requirements on the military’s dereliction-of-duty cases. For example, a knowing violation of a statute governing use of force would result in the highest penalty. Presumably, police officers, like soldiers, would be instructed on these rules as part of their training. But even if a police officer were not aware of the rule, he or she could still be prosecuted under a straightforward negligence theory, in the same way soldiers are currently held responsible.
Conduct unbecoming an officer is another provision in the UCMJ that contains no civilian analogue. It is more general in nature and applies only to officers who are expected to inspire the trust and respect of their subordinates. The relevant provision prohibits any
action or behavior in an official capacity which, in dishonoring or disgracing the person as an officer, seriously compromises the officer’s character as a gentleman, or action or behavior in an unofficial . . . capacity which, in dishonoring or disgracing the officer personally, seriously compromises the person’s standing as an officer.
The lack of specificity in the provision allows it to serve as a catchall for conduct that might not otherwise fall under other provisions of the UCMJ. Examples of such conduct include acts of “dishonesty, unfair dealing, . . . lawlessness, injustice or cruelty.” A UCPJ should include a provision for conduct unbecoming a police officer. Treating such conduct as a crime would address concerns over police professionalism and ethics. Numerous police departments already promulgate policies that fall under this category by regulating, for example, the improper use of a firearm, failure to report a fellow officer for abuse, and engaging in public drunkenness. In such cases, what might currently result in dismissal or termination could instead lead to criminal liability if an officer fails to perform at a sufficiently high professional or ethical level.
Given the similarities between police and military tasks — both may be required to assault and kill in accomplishing their mission — it would be sensible to apply laws covering military conduct to the policing context. Police officers should not get the benefit of special legal defenses (discussed in more detail below) that are unavailable to nonofficers without also having to shoulder the commensurate burden of additional criminal liability. Such asymmetry does not exist in the military system, which has adopted the UCMJ to regulate both crimes and defenses against criminal charges.
Defining Justified and Reasonable Use of Force
Whereas certain laws apply to military personnel but not to civilians, police officers are subject to the same criminal laws (covering assault, homicide, etc.) that apply to regular citizens. However, state criminal codes carve out special exceptions for police officers by granting them defenses that are not available to regular citizens. For example, in the case of assault, officers are authorized to use justified physical force in effecting an arrest or capturing a suspect. In the case of homicide, officers are also treated differently in that they do not have a duty to retreat and, in some states, can kill even in cases where there is no imminent threat of deadly harm. (Most states typically require an imminent threat of great bodily harm before allowing a citizen to use deadly force against an aggressor.)
While these defenses make some sense (after all, part of a police officer’s duty is to make arrests and keep peace, which can require the use of force), it is less clear why these defenses are crafted in such an open-ended manner. Indeed, the law fails to clarify exactly what is meant by “justified force” by enumerating specific acts that may or may not be prohibited in the use of it. This vagueness and lack of specificity gives prosecutors significant discretion in deciding whether to bring charges against police officers and, when they do, gives juries significant latitude in deciding whether to convict.
One way to remedy this under a UCPJ would be to hold police officers criminally liable for violating police-department policies in the same way that soldiers are held criminally liable for violating military policies or regulations. For example, while New York state lawmakers are currently working on a bill that would make chokeholds criminally actionable in the event of injury or death, New York City’s internal police rules already contain a blanket prohibition on such conduct. However, a violation of New York City’s internal police rules currently leads only to remedial training, demotion, suspension, or termination of an officer. A UCPJ modeled after the UCMJ would instead outlaw the use of chokeholds, except in life-or-death circumstances, and subject an officer to a charge of criminal assault for engaging in such conduct in any other circumstances, regardless of whether it results in injury or death.
In addition, many states do not require that an officer face imminent threat of great bodily harm before resorting to the use of deadly force. Such states have instead opted for a lower standard whereby an officer is authorized to use deadly force so long as the officer thinks it is necessary. New York City’s internal police policies have raised this standard by prohibiting the use of force unless officers have “probable cause to believe that they must protect themselves or another person from imminent death or serious physical injury.” A UCPJ could incorporate this language and subject an officer to criminal charges for failing to uphold it. Such an approach is analogous to rules of engagement in the military, which lay out in some detail when force — particularly deadly force — is appropriate along with punishments for the violation of such rules.
A UCPJ Would Benefit Police and the People They Serve
While full implementation of a UCPJ would require states to act on an individual basis, Congress can act now by passing a UCPJ to govern the conduct of federal law-enforcement agencies, such as the FBI, ATF, and DEA. This code would serve as a model for states and constitute a necessary first step toward applying the principles of the UCMJ to the policing context. In fact, this is what states have already done by promulgating their own military codes patterned after the UCMJ that apply to soldiers in their National Guard units.
It’s important to note that implementation of a UCPJ would not require the creation of a unique criminal-justice system as in the military context. The reason for this is that police officers carry out their duties within communities, whereas soldiers carry out their work apart from civilians, often while deployed overseas. This same logic applies to National Guard soldiers deployed in their local communities, who are also subject to the civilian court system. Accordingly, the current criminal procedural system should remain intact, and police officers should be prosecuted and tried by the same people who reside in the communities they serve.
While certain interest groups — most notably police officers and their unions — might be opposed to such changes, in the end such a proposal would benefit police officers as much as citizens by providing officers with a clearer sense of what is expected of them. This would help foster an atmosphere of compliance, which would go a long way toward fostering a higher degree of goodwill between police and the people they’re tasked with protecting.
The views expressed in this article are the writers’ own. They do not reflect the official policy or position of any employer of the writers or the Tennessee Army National Guard.
Editor’s Note: This article has been emended to remove a reference to a supposed incident at Camp Pendleton. The incident did not happen in fact and originated from a satirical publication.