June 6, 2020
In Blog News
By Joshua Raposa
“To Protect and Serve”
The Motto of the Los Angeles Police Department
Many statements have been made regarding the murder of George Floyd and the subsequent protests engulfing the US.
However, very little has been stated about empirical context with respect to the most salient and important aspect of the recent developments in Minneapolis; in particular, police brutality and the use of excessive force by police departments nationally.
Without such a context, one is hopeless to formulate any cogent analysis of the situation. Certainly, if we seek to rectify or at least mitigate the effect of police brutality, we must have an understanding of its root cause.
To begin, we should provide the conditions under which the use of force is considered legal. Such a standard will allow us to properly assess the historical evidence presented. The U.N. General Assembly on December 14, 1990 accepted the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (hereafter, “Basic Principles”). As Amnesty International has observed:
“Today, the Basic Principles are an invaluable tool for guidance and assessment of police work and are widely accepted as an authoritative statement of the law. They are frequently used as a reference by international courts and other human rights bodies, international institutions and human rights organizations. Amnesty International regularly refers to the Basic Principles in its statements, reports and recommendations.”[1]
In short, the “Basic Principles” are “widely accepted as an authoritative statement of the law”[2] and, as such, they should be regarded as an appropriate legal standard in evaluating police conduct in the US.
The Basic Principles are relatively straightforward. There are two conditions that the use of force must meet in order to be considered legitimate. The conditions are as follows:
The first of these is widely referred to as the principle of necessity; the second, the principle of proportionality. Stated in simpler terms, the use of force is legitimate if and only if it meets two requirements: (a) all other “non-violent means” have been exhausted; and (b) it is proportional to “seriousness of the offence”.
With that standard having been established, let’s examine the evidence.
In 1998, Human Rights Watch conducted an investigation of fourteen large cities in the United States (“Atlanta, Boston, Chicago, Detroit, Indianapolis, Los Angeles, Minneapolis, New Orleans, New York, Philadelphia, Portland, Providence, San Francisco, and Washington, D.C.”). The research for the report was “conducted over two and a half years, from late 1995 through early 1998.”
The report concluded that: “police brutality[4] is persistent in all of these cities; that systems to deal with abuse have had similar failings in all the cities; and that, in each city examined, complainants face enormous barriers in seeking administrative punishment or criminal prosecution of officers who have committed human rights violations. Despite claims to the contrary from city officials where abuses have become scandals in the media, efforts to make meaningful reforms have fallen short.”
It would be misleading to suggest that these “abuses” are dispersed equally among the population, however. The report continued to observe that:
“Race continues to play a central role in police brutality in the United States. In the cities we have examined where such data are available, minorities have alleged human rights violations by police more frequently than white residents and far out of proportion to their representation in those cities. Police have subjected minorities to apparently discriminatory treatment and have physically abused minorities while using racial epithets. Mistreatment may be non-violent harassment and humiliation, such as allegations of racial profiling in which drivers are temporarily detained often for driving in certain areas or for driving certain types of cars.”
The report continued: “At worst, it includes the kinds of extreme violence we feature in this report. Each new incident involving police mistreatment of an African-American, Hispanic-American or other minority – and particularly those that receive media attention – reinforces a general belief that some residents are subjected to particularly harsh treatment and racial bias.”[5]
Similar conclusions emerged in the Los Angeles Police Department’s (LAPD) own internal investigation, the “Christopher Commission”: “The Commission has found … that there is a significant number of officers who repetitively misuse force and persistently ignore the written policies and guidelines of the Department regarding force.”[6]
“Of approximately 1800 against whom an allegation of excessive force or improper tactics was made from 1986 through 1990,” the Commission noted, “over 1,400 officers had only one or two allegations. But 183 officers had four or more allegations, 44 had six or more, 16 had eight or more, and one had 16 allegations.”[7]
Another internal investigation of the New York Police Department (NYPD) revealed the same tendencies towards police brutality. The Mollen Commission (1994) found that “the use of force sometimes exceeds the necessities of aggressive policing – and the Department’s response has been negligible … Police brutality seemed to occur, in varying degrees, where we uncovered [police] corruption, particularly in crime-ridden, drug-infested precincts, often with large minority populations.”[8]
Twenty years later, in the 2010s, the problem has only gotten worse, it would appear. The American Civil Liberties Union (ACLU) conducted a statistical analysis of more than “20 law enforcement agencies during the years 2011-2012.” It found that “[p]olicing—particularly through the use of paramilitary teams—in the United States today has become excessively militarized, mainly through federal programs that create incentives for state and local police to use unnecessarily aggressive weapons and tactics designed for the battlefield.” The report also observed (echoing the conclusions found above) that:
“the use of paramilitary weapons and tactics primarily impacted people of color; when paramilitary tactics were used in drug searches, the primary targets were people of color, whereas when paramilitary tactics were used in hostage or barricade scenarios, the primary targets were white. Overall, 42 percent of people impacted by a SWAT deployment to execute a search warrant were Black and 12 percent were Latino. This means that of the people impacted by deployments for warrants, at least 54 percent were minorities. Of the deployments in which all the people impacted were minorities, 68 percent were in drug cases, and 61 percent of all the people impacted by SWAT raids in drug cases were minorities. In addition, the incidents we studied revealed stark, often extreme, racial disparities in the use of SWAT locally, especially in cases involving search warrants.”[9]
For instance, we saw the use of such “paramilitary weapons and tactics” during the Ferguson protests of 2014. Amnesty International, reviewing police conduct in these protests, found that “the reaction by city, county and state law enforcement and executive officials has been to impose policies and procedures on the residents and protesters in Ferguson which collectively punish both groups.” Furthermore:
“The use of heavy-duty riot gear and military-grade weapons and equipment to police largely peaceful demonstrations intimidates protesters who are practicing their right to peaceful assembly and can actually lead to an escalation in violence. Equipping officers in a manner more appropriate for a battlefield may put them in the mindset that confrontation and conflict is inevitable rather than possible, escalating tensions between protesters and police. Any police presence at demonstrations needs to be proportionate to the situation. Police deployed in larger numbers than appear necessary or deployed wearing protective clothing or riot gear can be confrontational and intimidating. As seen in many countries, inappropriate or excessive police interventions can actually lead to violence and disorder rather than reducing tensions.”[10]
A year later, Amnesty International conducted a separate review regarding the use of “lethal force” in the United States. It specifically examined US state laws and assessed whether they comply with international law. Recalling the standard set forth in the Basic Principles, Amnesty International concluded that, “US state laws – where they exist – … all fail to comply with international law and standards. Many of them do not even meet the less stringent standard set by US constitutional law.”[11]
An internal investigation of the Chicago[12] PD reached similar conclusions.
In sum, virtually all of the evidence presented, both by credible human rights organizations and internal police investigations, reveals the quantitative and qualitative extent to which the police are engaged in systematic police brutality.
As regards the “systematic” nature of the brutality, Human Rights Watch in 1998 (see above) reported that “[p]olice or public officials greet each new report of brutality with denials or explain that the act was an aberration, while the administrative and criminal systems that should deter these abuses by holding officers accountable instead virtually guarantee them impunity.”
For instance, the LAPD also noted that the “problem of excessive force in the LAPD is fundamentally a problem of supervision, management, and leadership.” Jesse Brewer – “a retired 38-year LAPD veteran who served as Assistant Chief from 1987 until February 1991” – stated in the Christopher Commission that his police department “do[es] a very poor job of management and supervisory accountability … [H]igher command officers when learning of [incidents of excessive force] having occurred took no action or very indecisive action, very weak and slow approach to doing something. Let me tell you that none of those people [the higher command officers], with rare exceptions, have been disciplined. And, in fact, I’m not even sure they’ve been counseled in many of these incidents … And so, that’s an area that I believe we have failed miserably in, is holding people accountable for the actions of their people.”[13]
The Commission concluded that the “problem officers were well known in their divisions” and that the officers interviewed “felt that supervisors were not held accountable by their superiors for excessive use of force by their subordinates.”[14]
In the case of the LAPD[15], an examination of the Department’s Mobile Digital Terminal System (“MDT”) confirms this conclusion: the MDT system — which, is a “sophisticated communications network through which patrol cars are linked with headquarters and each other by computers terminals in each car” (p. 48) — was revealed to have contained the following communications between officers:
“Capture him, beat him and treat him like dirt…”; “I was out of vehicle, whippin on a couple of em, how r u?,” “Sgt. Brutality” (p. 49); “No problemmm … we R hungry … we got a little physical w/ a [name omitted] on Colombus … it was fun … we had to teach him a little respect … for the police … hahahahaha … we had fun … no stick time though” (p. 49); “My partner wants to know if you beat those guys…” “Yes….”; “We’re sitting on a C37 that was dropped off by two Mexicans … going to sit on it for a while,” “R U going to beat em up like U did the last one” (p. 51); “Did you really break his arm” “Along with other misc parts,” “We have his oriental buddy for 11364,” “Great … make sure u burn him if he’s on felony probation … by the way does he need any breaking” (p. 51); “Cease fire … we r being monitored.” (p. 52)
In short, given that the “patrol cars are linked with headquarters”, the “problem officers” behaviors were easily discernable by “leadership”.
Critically — for activists — however, HRW stated that “[e]fforts to improve police accountability are undermined by the actions of some police unions and organizations that legally challenge citizen review agencies. These groups publicly deny all allegations against police officers, even those they know are brutal…”; noting the electoral connection, HRW argued that public officials “often rely on the support and endorsement of politically powerful police unions for re-election and are loath to offend the unions’ members.”[16]
This passage is remarkable for what it does not say: it does not say that the “police unions and organizations” aren’t aware of what is transpiring. In fact, precisely the opposite is true (“These groups publicly deny all allegations against police officers, even those they know are brutal…”). Similarly, it’s not like the elected officials are ignorant (public officials “often rely on the support and endorsement of politically powerful police unions for re-election and are loath to offend the unions’ members”). Any recommendation needs to take into account these power dynamics.
Among the recommended measures put forth by the human rights organizations were the following:
As such, any type of change needs to be systematic: “Organizing” is required; “advocacy” and “mobilization” are likely to be fruitless endeavors.
As it relates to (1), we should not mince words: it is the “community” who ought to “control the police”. Not, as it were, the other way around. Regarding (2), if the problem is occurring at “all levels of government” then the issue is not of a “cultural” nature but, rather, a political one.
A failure to recognize the political nature and function of the police is to make an egregious error. Indeed, as the police themselves inform us, they exist principally to “To Protect and Serve”; it just so happens that the police are “protecting” an unjust social order and “serving” corporations along with their political counterparts.
As to whether we will be able to generate the necessary political leverage to create a just order – one founded upon basic democratic principles and freedoms – will, practically speaking, be determined by how much daily time and effort we are willing to devote to those communities we purport to stand in solidarity with.
[1] “Use of Force: Guidelines for Implementation of the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials,” Amnesty International. August 2015.
[2] The Basic Principles derive as a corollary to two widely accepted sources of international law, (which the United States is a signatory to): namely, The International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights. Regarding the former, we see this expressed in Articles 6 and 9 which state: “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life”; “Everyone has the right to liberty and security of person.” With respect to the latter, article 3 states: “Everyone has the right to life, liberty and security of person.”
[3] “Basic Principles on the Use of Force and Firearms by Law Enforcement Officials,” United Nations Human Rights Office of the High Commissioner. September 7, 1990.
[4] In footnote 1 of the report, “‘[e]xcessive force’ is used throughout … to refer to force that exceeds what is objectively reasonable and necessary in the circumstances confronting the officer to subdue a person, as in Article 3 of the U.N. Code of Conduct for Law Enforcement Officials (see appendix H), which provides that: ‘Law enforcement officials should use force only when strictly necessary and to the extent required for the performance of their duty.’”
[5] “Shielded from Justice: Police Brutality and Accountability in the United States,” Human Rights Watch. June 1998.
[6] “Report of the Independent Commission on the Los Angeles Police Department,” Independent Commission on the Los Angeles Police Department, p. 31. 1991.
[7] Ibid., p. 36.
[8] Mollen, Milton. “Commission to Investigate Allegations of Police Corruption and the Anti-Corruption Procedures if the Police Department Commission Report,” p. 44-45. July 7, 1994.
[9] “War Comes Home: The Excessive Militarization of American Policing,” p. 2, 5. ACLU Foundation. June 2014. The report summarized its findings as follows: “…of the SWAT deployments studied, (1) the overwhelming majority were for the purpose of searching people’s homes for drugs, (2) troubling racial disparities existed, and (3) the use of violent tactics and equipment often resulted in property damage and/or bodily harm” (p. 20).
[10] “On the Streets of America: Human Rights Abuses in Ferguson,” p. 11. Amnesty International. 2014. The internal investigation conducted by the US Department of Justice: Civil Rights Division came to the same conclusions that Amnesty did. See, “Investigation of the Ferguson Police Department,” United States Department of Justice: Civil Rights Division. March 4, 2015.
[11] “Deadly Force: Police Use of Lethal Force in the United States,” Amnesty International. 2015.
[12] “Recommendations for reform: restoring trust between the Chicago police and the communities they serve,” Police Accountability Task Force. April 2016.
[13] “Report of the Independent Commission on the Los Angeles Police Department,” p. 32. Independent Commission on the Los Angeles Police Department. 1991.
[14] Ibid., p. 34. The Commission also stated that “Despite repeated requests by the Commission and a diligent search by the LAPD for any such audit or review of the concentration of use of force reports among officers, none was found and provided to the Commission” (p. 38). Amnesty International, in its 2015 report, also observed that: “…accountability for police use of lethal force is severely lacking in the United States. The officer’s own police agency usually conducts the investigation before handing the case over to the local prosecutor for review, who, depending on the jurisdiction, either convenes a grand jury or decides directly whether to file charges against the officer. The fact that investigations are handled internally and that prosecutors have to maintain good working relationships with the police as well as fulfill their duty to investigate and prosecute police use of lethal force, has led to calls being made for independent investigations and prosecutors” (“Deadly Force: Police Use of Lethal Force in the United States,” Amnesty International. 2015.)
[15] The case of Boston was also instructive as relates to the LAPD’s internal investigation:
“The Committee’s detailed findings and recommendations are contained in the chapters which follow; we identify here only several illustrative examples. Perhaps most striking is the near total lack of accountability within the Department. Despite having the statutory authority to institute a performance appraisal system for officers working at the BPD, the Department has failed to implement such a system. As a result, there are no Department- wide systems to gauge the performance of police officers or hold supervisors, patrol officers or detectives accountable for their actions and performance. Further, there are no real efforts made to set goals, objectives, and priorities on a Department-wide basis or hold Bureaus, Divisions, and Units accountable for meeting those goals” (St. Clair, James D. “Report of the Boston Police Department Management Review Committee,” January 14, 1992.)
A similar conclusion can be drawn from the NYPD internal investigation: “In addition, the Department’s intelligence and official records regarding incidents of brutality have been wholly inadequate in the past” (Mollen, Milton. “Commission to Investigate Allegations of Police Corruption and the Anti-Corruption Procedures if the Police Department Commission Report,” p. 45. July 7, 1994)
[16] “Shielded from Justice: Police Brutality and Accountability in the United States,” Human Rights Watch. June 1998. Virtually the same conclusions were drawn by a UN Working Group in 2016, which found that: “The Working Group identified some of the main barriers to tackling impunity for killings by the police as: (a) the lack of independence of the initial investigations, which in the majority of cases are conducted by the same police department that the alleged perpetrator is a member of; (b) the wide discretion of prosecutors to determine when and how to present charges; and (c) the fact that some federal, state and county practices are not in line with international standards as regards the use of force.” (“Report of the Working Group of Experts on People of African Descent on its mission to the United States of America,” UN Human Rights Council. August 18, 2016.)
[17] Report of the Working Group of Experts on People of African Descent on its mission to the United States of America,” p. 21. UN Human Rights Council. August 18, 2016