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Halsey Frank: Reservations about the DOJ’s new use-of-force policy

It is illegal and unacceptable for law enforcement officers to use excessive force. It’s relatively easy to state that general principle. The difficulty comes when you try to apply it to particular situations.

On May 20, the Department of Justice updated the use-of-force policy for its law enforcement agencies: the Bureau of Alcohol, Tobacco and Firearms, the Drug Enforcement Agency, the Federal Bureau of Investigation and the United States Marshals Service. The policy will take effect on July 19.

In keeping with the law, the policy reaffirms that officers may only use so much force as is objectively reasonable to gain control of a situation, while protecting the safety of officers and others. When it comes to using deadly force, officers may only do so when the person being subjected to deadly force poses an imminent threat of death or serious bodily injury to officers or other persons.

The policy adds a requirement that officers must intervene to prevent or stop another officer from using excessive force, unconstitutional force or force that violates other federal laws or policies regarding the use of force. While it is the Department’s prerogative to change the policy in this respect, I am concerned that it sets a standard that is difficult and problematic to apply.

Consistent, accurate and reliable statistics in this area are hard to find. Statista reports that there were 696,644 full-time, sworn police officers in the United States in 2020. The Bureau of Justice Statistics (BJS) reports that police made at least one contact with 61.5 million residents aged 16 or older in 12 months in 2018. That represented about 24% of that population. The FBI reports that law enforcement made 10 million arrests in 2020, 495,000 for violent crimes.

The BJS also reports that 30,129,900 residents experienced the threat of force during their most recent encounter with the police in 2018, and that 50.9%of those perceived the force as excessive. The FBI reports that there were 60,105 assaults on police officers that caused 18,568 injuries in 2020. The BJS reports that large agencies reported over 26,000 complaints of excessive force during 2002, eight percent of which were sustained as of the time of the report, meaning that there was sufficient evidence to justify disciplinary action.

The Washington Post counts 1,019 people shot and killed by the police in 2020. The CDC reports that 19,350 residents were shot and killed by other residents that year.

The new policy governs an area where the law imposes conflicting duties. On one hand, the police are required to enforce the law and keep the peace. They are authorized to use reasonable force to do so. We expect them to. On the other hand, the law prohibits the police from using excessive force. We want the police to obey that law too.

During a violent encounter, those two principles are in tension. There are many dynamic factors to consider. Policymakers cannot anticipate and prescribe how the police should respond to every eventuality. The police have to make choices and take actions. Where they strike the balance in a particular case is a matter of discretion. It may be wrong, but it needs to be done.

It is already unacceptable, unconstitutional and criminal for a law enforcement officer to willfully use excessive force. Officers are already under a duty to obey and enforce the law, including the law against law enforcement officer’s use of excessive force. They may be held liable for not fulfilling that duty as well.

I am concerned that the new policy will do more harm than good. It will make violent encounters with law enforcement more dangerous. It will pit federal law enforcement against other law enforcement, breed resentment, and inhibit the cooperation that is essential to good, effective and safe law enforcement. I am not sure that it will reduce the use of excessive force. Other measures will deter excessive force more effectively with fewer negative consequences.

We live in a violent society. The Center for Disease Control’s recent report on 2020 firearms homicides confirms it. So do the recent mass homicides in Buffalo, New York and Uvalde, Texas.

Doctors, social workers and counselors who administer treatment, counseling and benefits may have a role to play in preventing violent crime. They are not qualified or equipped to consistently and reliably neutralize actively violent situations, however. Such situations are difficult for anyone, including law enforcement, to manage. They require the use of force.

Such situations call for the intercession of trained, armed law enforcement officers. Law enforcement must work together to get them under control. Dissension within their ranks during a violent encounter decreases the chances that effort will be effective and increases the danger for everyone involved. 

Judgments about how much force is necessary and reasonable are complicated. They are a function of many dynamic considerations and difficult to make under any circumstances, even in hindsight. They are especially difficult to make in the midst of a fast-moving, violent encounter. It is not reasonable to expect the police to find the perfect amount, the precise minimum amount necessary in the midst of violence.

While officers are trained and expected to make such judgments, the priority must be to end the violence, not second guess the amount of force used to do so. We want officers to act and intervene when violence is actively being done. We don’t want them debating the quantum of force that is reasonable.

Under such circumstances, unless it is absolutely clear that the force being applied is grossly excessive and intercession is essential to save life, disagreements about the amount of force being used should be reserved until after the situation has been brought under control. In general, choke holds in response to regulatory violations, and neck restraints in response to counterfeiting are examples of such obviously and grossly excessive force.

Moreover, the subjects of police use of any amount of force, their friends, relatives and bystanders are not impartial, fair and accurate judges of its reasonableness. Almost everyone resents being the attention of the police, much less being the recipient of their application of force. Neither are the police on the scene, for that matter. None of the participants in a violent encounter are impartial judges. But someone has to get the situation under control before justice can be done.

I am not excusing police officers who use excessive force, only arguing that allegations of excessive force should be vigorously investigated and fairly and rationally adjudicated after the fact by a neutral, detached decision-maker.