Sworn law enforcement officers (LEOs) are granted authority to arrest and use force … powers that in an instant can dramatically and irrevocably impact the right of every person to life, liberty and the pursuit of happiness. The available statistics (which are incomplete and imperfect) and exhaustive press coverage of individual cases, warrant a mixed judgment about how these powers are exercised. In most places, most of the time, LEOs use these powers appropriately (and often valiantly) to “serve and protect” the innocent from harm. However, in some places, too often, they misuse them or do not use them at all when objectively necessary to do so. Sadly, a scholarly, nonpartisan analysis of the available data in 2018 concluded:
On non-lethal uses of force, blacks and Hispanics are more than fifty percent more likely to experience some form of force in interactions with police. Adding controls that account for important context and civilian behavior reduces, but cannot fully explain, these disparities.
Roland G. Freyer, “An Empirical Analysis of Racial Differences in Police Use of Force,” (National Bureau of Economic Research, Working Paper 22399, as revised July 2018, nber.org). Such analysis reinforces the extensive anecdotal reporting in social media by professionals and other persons of color regarding their own experiences, perhaps best summarized by “the talk” they feel compelled to have with their own children about how to avoid, if possible, and safely navigate, if necessary, interactions with law enforcement. Although analysis does not establish statistically significant evidence of racial discrimination in the use of lethal force (see Freyer’s work on this point), the tragic, individual cases that have been reported so extensively in the media satisfy me beyond any doubt that it occurs.
LEO misconduct -- directly or through dereliction of duty -- violates the rights of individuals, and undermines the commitments to equal justice and the rule of law that bind us together as a people. Like other high-consequence professions … think, for example, of airline pilots, or neuro- or cardiac surgeons -- the consequences of misconduct or culpably poor performance by an LEO should be unacceptable.
When we think of a job in this way, we usually provide competitive compensation to attract and retain the requisite talent, and require a high level of education, training and certification to perform it. We make ongoing performance subject to close and continuous oversight by organizational management, governmental authorities, and the legal system, through civil and even criminal litigation. We recognize these professionals are human, and imperfect in their ability to be right ~100% of the time without standards and oversight to channel the exercise of their discretion.
There are currently more than 800,000 LEOs serving in about 18,000 police agencies across the country - municipal police departments, county sherrif's offices, state police/highway patrols, and federal law enforcement organizations. In our small state of Connecticut alone, we have 92 municipal police departments employing some 6,628 police officers, in addition to our State Police. In such a large, decentralized system, it would be shocking if there were not significant gaps from place to place in the policies, processes, leadership and organizational culture required to assure the daily exercise of police powers aligns with American values.
So, how might we find and address any gaps proactively, before a tragedy rather than in reaction? There is no one-size-fits-all set of national or even state-level answers. Reflecting on my professional experience in government and corporate compliance, here are some thoughts and questions that occur to me as I read about individual matters in the press and review studies on issues of police use of force:
1. Civilian Control Must Be Real and Ingrained in the LEO Culture. The principles and culture of civilian control are time-honored and firmly established in the U.S. military, but not so much always and everywhere with respect to civilian law enforcement. Put simply, it is just as important to the health of our constitutional, republican form of government that law enforcement powers be fully subject to civilian direction and control as for our military establishment; just as you wouldn’t let the Sales Department of an international business affect policy and enforcement of rules against bribing customers to win business, the control and transparency necessary for effective civilian control of police power cannot be compromised through policy or collective bargaining. So, at the local level, the first question to ask about policing is “who has the real authority and ability to control the police?”
2. The Risk of LEO Misconduct Must Be Specifically Assessed and Addressed. In engineering a product or a control process in business, it is common to conduct a Failure Mode and Effects (FMEA) analysis, to identify the ways in which things can go wrong, the potential consequences if they do, and the compensating policy, process or other control necessary to mitigate that risk of failure. The nature and level of risks with respect to LEO misconduct are in the first instance a reflection of the law enforcement environment, which may vary widely across jurisdictions, from small, homogeneous, low-crime places to large metropolitan centers that have the full range of challenges we see on the news and the ubiquitous crime shows. Additionally, LEOs anywhere may be first-responders to what prove to be mental health or alcohol/drug abuse crises, or behaviors stemming from autism spectrum or other disorders … things that are not what we normally think of as intentional, criminally culpable behaviors. A proactive FMEA-type process should produce results that are clearly visible in policies, staffing, training, organization and supervision, and record-keeping. The robustness of such a proactive process, and a similar after-action process to derive lessons learned from experience, is a key indicator of a healthy, “learning” organizational culture. In using these processes to control the risk of misconduct, it is just as important to identify and assess “near-misses” as well as actual instances of misconduct.
3. Use of Force. Beyond the use of deadly force, I’ve been surprised both to see and read about knee-on-neck immobilization, chokeholds, use of hoods to blind and supposedly calm (?) persons under apprehension, repeated use of tasers and aggressive use of batons in situations that seem questionable at best ... at least when you look at the videotape. Questions for a local jurisdiction would include: (1) what are the relevant national or state standards we are required to follow regarding use of force? (2) to what other organizations do we/might we look for best practices? (3) how do our local policies measure up? (4) how often and how thoroughly do we train LEOs in the application of those standards? (5) what reporting do we require when force is used; do LEOs comply with reporting obligations; how are such reports reviewed and in how many instances has a report generated further investigation or corrective action? (6) how many complaints of excessive force are received; how are these investigated and in how many instances has a complaint been deemed substantiated and corrective action taken?
4. Hiring. It has surprised me to read reports of LEOs fired from one jurisdiction being readily hired by another, without any special due diligence. Questions for local officials would include: (1) What are our education, training and experience requirements for new hires? (2) How do you assess an applicant’s perspective on policing and attitudes? (3) When an applicant claims prior experience in another department, what due diligence do you perform to ascertain his/her prior performance? (4) Are you able to obtain all relevant information and records before you make a decision? (5) If you do hire an officer with prior performance issues, what probationary or supervisory arrangements do you put in place to assure no recurrence?
5. Training. What police academy or similar initial training is required for LEOs prior to entry upon duty? What are the continuing education and training requirements? (See the discussion of FMEA and after-action/lessons learned, above.)
6. Supervision. How closely are sworn officers observed and supervised on a daily basis? How are they evaluated? How closely are compensation and promotion decisions tied to evaluations? Does the organization have a policy, process and evaluation tools in place to limit "grade inflation"? (The Army found this necessary 40 years ago.) How many officers have been disciplined, and for what issues? How are complaints received, investigated and adjudicated? How are records maintained?
7. Community Policing. How well do frontline LEOs know the communities in which they serve, and how well do those communities know them. Does your LEO agency have a clear commitment to community policing; if so, is it reflected in full, grassroots engagement that actually produces trust, or is it really an outreach program conducted by a designated part of the agency, separately from the frontline LEOs? What processes are in place to sustain positive engagement with neighborhood/community leaders and act on their inputs?
Nobody wants a police state. Everybody wants to be safe in their homes and possessions, and free to enjoy life, liberty and the pursuit of happiness with the assurance of equal justice under the law. These are not partisan desires. If we would make progress toward those ideals, we need truly to treat law enforcement as the high-risk, high-consequence profession it is, everywhere and all the time. There is nothing valiant about an arrest or use of force that is not necessary or proportionate to an otherwise legitimate law enforcement objective.
