Police

Misconduct
A GLOBAL PERSPECTIVE
 Police
Misconduct
A GLOBAL PERSPECTIVE

Cliff Roberson

Boca Raton London New York

CRC Press is an imprint of the

Taylor & Francis Group, an informa business
CRC Press
Taylor & Francis Group
6000 Broken Sound Parkway NW, Suite 300
Boca Raton, FL 33487-2742
© 2017 by Taylor & Francis Group, LLC
CRC Press is an imprint of Taylor & Francis Group, an Informa business

No claim to original U.S. Government works

Printed on acid-free paper

Version Date: 20161010

International Standard Book Number-13: 978-1-4987-5334-0 (Pack - Book and Ebook)

This book contains information obtained from authentic and highly regarded sources. Reasonable efforts have been
made to publish reliable data and information, but the author and publisher cannot assume responsibility for the
validity of all materials or the consequences of their use. The authors and publishers have attempted to trace the
copyright holders of all material reproduced in this publication and apologize to copyright holders if permission to
publish in this form has not been obtained. If any copyright material has not been acknowledged please write and let
us know so we may rectify in any future reprint.

Except as permitted under U.S. Copyright Law, no part of this book may be reprinted, reproduced, transmitted, or
utilized in any form by any electronic, mechanical, or other means, now known or hereafter invented, including pho-
tocopying, microfilming, and recording, or in any information storage or retrieval system, without written permis-
sion from the publishers.

For permission to photocopy or use material electronically from this work, please access www.copyright.com (http://
www.copyright.com/) or contact the Copyright Clearance Center, Inc. (CCC), 222 Rosewood Drive, Danvers, MA
01923, 978-750-8400. CCC is a not-for-profit organization that provides licenses and registration for a variety of
users. For organizations that have been granted a photocopy license by the CCC, a separate system of payment has
been arranged.

Trademark Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for
identification and explanation without intent to infringe.
Visit the Taylor & Francis Web site at
http://www.taylorandfrancis.com
and the CRC Press Web site at
http://www.crcpress.com
 Dedication
This book is dedicated to the men and women serving and those that have served in our
criminal justice system. We, as Americans, are truly fortunate to have had fine devoted
professionals ever tending that fine blue line. For your anonymous help in our times of need
and to perhaps make up some for the thanks that we have failed to express, thank you.
Contents
Preface ...................................................................................................................................................................................... xiii
Author ........................................................................................................................................................................................xv
Chapter 1 Introduction to the study of police misconduct ............................................................................................ 1
Introduction ................................................................................................................................................................................ 1
Procedural handling of citizen complaints ............................................................................................................................ 4
Extent of police corruption ....................................................................................................................................................... 4
Agencies that have a reputation for being corrupt........................................................................................................... 4
Noble-cause corruption ............................................................................................................................................................. 7
Dirty Harry syndrome ......................................................................................................................................................... 7
Noble-cause incident that went wrong .............................................................................................................................. 7
Dangers of the noble cause .................................................................................................................................................. 7
Predicable forms of corruption ................................................................................................................................................ 7
Police misconduct and the media ............................................................................................................................................ 8
Punishing police misconduct ................................................................................................................................................... 9
Are U.S. police too aggressive? .............................................................................................................................................. 10
Ferguson effect ......................................................................................................................................................................... 10
Militarization of America’s police forces .............................................................................................................................. 10
President’s Task Force On 21st Century Policing ................................................................................................................ 12
Executive summary of task force report .......................................................................................................................... 12
Pillar one: Building trust and legitimacy ........................................................................................................................ 14
Pillar two: Policy and oversight ........................................................................................................................................ 14
Pillar three: Technology and social media ...................................................................................................................... 15
Pillar four: Community policing and crime reduction ................................................................................................. 15
Pillar five: Training and education ................................................................................................................................... 15
Pillar six: Officer wellness and safety .............................................................................................................................. 16
Implementation recommendations................................................................................................................................... 16
Conclusion ............................................................................................................................................................................ 16
National decertification database .......................................................................................................................................... 16
Summary ................................................................................................................................................................................... 16
Practicum .................................................................................................................................................................................. 17
Discussion questions ............................................................................................................................................................... 17
References ................................................................................................................................................................................. 17
Chapter 2 Historical analysis of police misconduct...................................................................................................... 19
Introduction .............................................................................................................................................................................. 19
Development of police departments ..................................................................................................................................... 19
Reform movement .................................................................................................................................................................... 22
History of police corruption ................................................................................................................................................... 22
Prohibition ............................................................................................................................................................................ 27
Report on the Wickersham Commission ......................................................................................................................... 27
Kefauver hearings on organized crime............................................................................................................................ 27
History of police brutality ...................................................................................................................................................... 28
Great Railroad Strike of 1877 ............................................................................................................................................. 29

vii
viii Contents

Haymarket Square riot ....................................................................................................................................................... 29

Pullman strike of 1894 ........................................................................................................................................................ 29
Harlem riot of 1943 .............................................................................................................................................................. 30
Zoot Suit riots ...................................................................................................................................................................... 30
Detroit riots of 1967 ............................................................................................................................................................. 30
Future of policing considerations .......................................................................................................................................... 31
Summary ................................................................................................................................................................................... 43
Practicum .................................................................................................................................................................................. 44
Discussion questions ............................................................................................................................................................... 44
References ................................................................................................................................................................................. 44
Chapter 3 Excessive use of force ....................................................................................................................................... 47
Introduction .............................................................................................................................................................................. 47
Establishing excessive use of force ........................................................................................................................................ 47
Assault and battery ............................................................................................................................................................. 48
Right to resist unlawful arrest .......................................................................................................................................... 49
Use of tasers .............................................................................................................................................................................. 51
Taser use in Great Britain ................................................................................................................................................... 53
Legal guidelines on use of force ............................................................................................................................................ 53
Mullenix v. Luna ................................................................................................................................................................. 55
Research on police use of force .............................................................................................................................................. 56
Progressive discipline and accountability in police agencies ........................................................................................... 58
Summary ................................................................................................................................................................................... 61
Practicums................................................................................................................................................................................. 62
Practicum one ...................................................................................................................................................................... 62
Practicum two ...................................................................................................................................................................... 62
Practicum three ................................................................................................................................................................... 62
Discussion questions ............................................................................................................................................................... 63
References ................................................................................................................................................................................. 63
Chapter 4 Use of deadly force ............................................................................................................................................ 65
Introduction .............................................................................................................................................................................. 65
When is the use of deadly force justified? ............................................................................................................................ 65
Probable cause .......................................................................................................................................................................... 67
Who is killed by the police?.................................................................................................................................................... 67
Deaths that caused public outcry .......................................................................................................................................... 68
Deaths where the police were held liable in civil court ..................................................................................................... 69
Arrest-related deaths (ARD) program .................................................................................................................................. 70
Highlights of the program ................................................................................................................................................. 70
Methodology ........................................................................................................................................................................ 71
Perceptions of deadly force ..................................................................................................................................................... 71
Duty to provide medical assistance ...................................................................................................................................... 72
Excited delirium syndrome .................................................................................................................................................... 72
Report of the use of deadly force ........................................................................................................................................... 73
Circumstances of the incident ........................................................................................................................................... 74
Determination of whether officer lawlor’s use of deadly force was appropriate....................................................... 80
Further action ...................................................................................................................................................................... 81
Assessment of deadly force in the Philadelphia Police Department................................................................................ 81
Summary ................................................................................................................................................................................... 82
Practicums................................................................................................................................................................................. 82
Practicum one ...................................................................................................................................................................... 82
Discussion: Does this use of force violate FBI policy? ................................................................................................... 82
Practicum two ...................................................................................................................................................................... 82
Discussion questions ............................................................................................................................................................... 83
References ................................................................................................................................................................................. 83
Contents ix

Chapter 5 Other types of misconduct .............................................................................................................................. 85

Introduction .............................................................................................................................................................................. 85
Traffic stops ............................................................................................................................................................................... 86
Profiling ..................................................................................................................................................................................... 87
Racial profiling .................................................................................................................................................................... 88
Gender profiling .................................................................................................................................................................. 88
Police searches .......................................................................................................................................................................... 88
Stop and frisks .......................................................................................................................................................................... 89
Police pursuits .......................................................................................................................................................................... 91
Do the police have a duty to break off the high-speed pursuit? .................................................................................. 91
High-speed pursuit as excessive use of force ...................................................................................................................... 92
Sexual misconduct ................................................................................................................................................................... 94
Abusive interrogation .............................................................................................................................................................. 95
Other police misconduct ......................................................................................................................................................... 97
Stealing money from a suspect ......................................................................................................................................... 97
Retaliation ............................................................................................................................................................................ 97
False testimony .................................................................................................................................................................... 98
Corruption ............................................................................................................................................................................ 98
Executing search warrants in an unreasonable manner ............................................................................................... 99
Malicious prosecution ........................................................................................................................................................ 99
Summary ................................................................................................................................................................................... 99
Police performance management and crime report manipulation ................................................................................ 100
Practicums............................................................................................................................................................................... 101
Practicum one .................................................................................................................................................................... 101
Practicum two .................................................................................................................................................................... 102
Discussion questions ............................................................................................................................................................. 102
References ............................................................................................................................................................................... 102
Chapter 6 Police corruption in international and transnational situations........................................................... 103
Introduction ............................................................................................................................................................................ 103
Police corruption involving international and transnational commerce ...................................................................... 103
Bribery on the international level ................................................................................................................................... 103
Arbitrary arrests in Argentina ........................................................................................................................................ 103
Arbitrary police actions in Brazil .................................................................................................................................... 105
International obligations ....................................................................................................................................................... 106
United Nations Convention against Corruption (UNCAC) ........................................................................................ 106
World corruption police ........................................................................................................................................................ 107
Police corruption in nation building ................................................................................................................................... 107
Research on foreign aid policies .......................................................................................................................................... 108
Corruption Perception Index................................................................................................................................................ 108
Organizing an international police force ........................................................................................................................... 108
Leader recruiting and selection ...................................................................................................................................... 108
Personnel accountability .................................................................................................................................................. 109
Police corruption in Liberia .................................................................................................................................................. 109
People smuggling ....................................................................................................................................................................110
Summary ..................................................................................................................................................................................110
Police misconduct in Canada: Internal and external oversight .......................................................................................111
Practicum .................................................................................................................................................................................115
Discussion questions ..............................................................................................................................................................115
References ................................................................................................................................................................................115
Chapter 7 Preventing police misconduct ...................................................................................................................... 117
Introduction .............................................................................................................................................................................117
Criminal convictions ..............................................................................................................................................................117
Civil rights investigations by the U.S. Department of Justice ..........................................................................................117
x Contents

United Kingdom restricts resignations or dismissal .........................................................................................................119

Police psychologists ................................................................................................................................................................119
Profiles of violence-prone officers ................................................................................................................................... 120
Steps in prevention............................................................................................................................................................ 120
Petitions for investigations ................................................................................................................................................... 120
Summary ................................................................................................................................................................................. 126
Practicum ................................................................................................................................................................................ 126
Discussion questions ............................................................................................................................................................. 126
References ............................................................................................................................................................................... 126
Chapter 8 Civil liability for police misconduct ........................................................................................................... 129
Civil rights actions ................................................................................................................................................................. 129
State law torts ......................................................................................................................................................................... 131
Color of law ............................................................................................................................................................................. 131
Filing a complaint.............................................................................................................................................................. 131
Liability of cities and police departments .......................................................................................................................... 134
Summary judgment ............................................................................................................................................................... 134
Immunity ................................................................................................................................................................................ 135
Absolute immunity ........................................................................................................................................................... 135
Qualified immunity .......................................................................................................................................................... 135
Saucier v. Katz .................................................................................................................................................................... 135
Wynn v. City of Lakeland ................................................................................................................................................ 136
Messerschmidt v. Millende .............................................................................................................................................. 137
Rationale for immunity .................................................................................................................................................... 138
Affirmative defense .......................................................................................................................................................... 138
Victim’s conduct ..................................................................................................................................................................... 139
More-specific-provision rule ........................................................................................................................................... 140
Summary ..................................................................................................................................................................................141
Practicum ................................................................................................................................................................................ 142
Discussion questions ............................................................................................................................................................. 143
Reference ................................................................................................................................................................................. 143
Chapter 9 Citizen review boards and external oversight .......................................................................................... 145
Introduction ............................................................................................................................................................................ 145
Functions of civilian review boards .................................................................................................................................... 145
National associations on civilian oversight of police ....................................................................................................... 145
United Kingdom review boards .......................................................................................................................................... 146
Canadian review boards ....................................................................................................................................................... 146
Civilian investigative bodies and prosecutorial power.................................................................................................... 146
Investigative powers of civilian oversight groups ............................................................................................................ 147
Summary ................................................................................................................................................................................. 148
Discussion questions ............................................................................................................................................................. 148
References ............................................................................................................................................................................... 149
Chapter 10 Investigating and complaining of officer misconduct............................................................................. 151
Complaint process ................................................................................................................................................................. 151
Filing a misconduct complaint ........................................................................................................................................ 151
Filing an effective complaint ........................................................................................................................................... 152
Racial profiling .................................................................................................................................................................. 152
Mediation ........................................................................................................................................................................... 152
Unidentified officer ........................................................................................................................................................... 152
Alberta, Canada’s Peace Officer Act ............................................................................................................................... 152
Complaint dispositions ......................................................................................................................................................... 153
Contents xi

Investigating police misconduct .......................................................................................................................................... 154

New York mayor’s authority to investigate police corruption .................................................................................... 154
Police defamation .............................................................................................................................................................. 155
Fixing tickets ...................................................................................................................................................................... 155
Discovery requests ................................................................................................................................................................. 156
Law enforcement officers’ bills of rights ............................................................................................................................ 156
Officer’s privilege against self-incrimination .................................................................................................................... 159
Garrity v. New Jersey ........................................................................................................................................................ 159
People v. Marchetta ........................................................................................................................................................... 159
False statement................................................................................................................................................................... 160
Failure of a polygraph test ............................................................................................................................................... 160
Interrogation of officers ..........................................................................................................................................................161
Recruiting .................................................................................................................................................................................162
Summary ..................................................................................................................................................................................162
Discussion questions ............................................................................................................................................................. 168
References ............................................................................................................................................................................... 168

Index ........................................................................................................................................................................................ 171

Preface
In 2015, U.S. police officers killed about 1000 civilians. Even though I am listed as the sole author of the
No other Western country came near that amount. So, as text, numerous persons assisted in the preparation
we read this text, we should ask ourselves why so many of the manuscript, including the editor at Taylor and
are killed by U.S. police officers. Francis Group, Carolyn Spence, and both Jennifer Brady
The text, Police Misconduct: A Global Perspective, is and Michelle van Kampen who were instrumental in
designed to provide students and persons interested the production of the book. Thanks to all of you for your
in the police and police deviance with an easy-to-read assistance and encouragement.
work on the complex issue of police misconduct. This A special round of appreciation to my colleagues, Ken
is not designed as an antipolice text. The vast majority Peck, John Eterno, Eli Silverman, Diana Burns, Matthew
of police officers are honest, hardworking, and dedi- O’Deane, Rick Parent, Ryan Getty, and Michael Doyle,
cated to their profession and to serving their citizens. who have submitted materials that are included in the text.
As with any large groups, companies, agencies, or other Teachers using this book as a text should be aware
types of organizations, there are some “bad apples” in that a full solutions manual, lecture slides, and instruc-
the profession. While I have attempted to remove any tor materials are available from the publisher.
indication of my political viewpoints or political opin- Comments and suggestions for improvement
ions, some may have crept in, for which I apologize for regarding the contents of the material may be forwarded
in advance. to me by e-mail at cliff.roberson@washburn.edu

xiii
Author
Cliff Roberson is an emeritus professor of criminal justice judge advocate; and director of the Military Law Branch,
at Washburn University, Topeka, Kansas, and a retired U.S. Marine Corps. Other legal employment experi-
professor of criminology at California State University, ences include trial supervisor, Office of State Counsel for
Fresno, California. He has authored or coauthored numer- Offenders, Texas Board of Criminal Justice; and judge pro
ous books and texts on legal, criminal justice, and sociol- tem in the California courts. Dr. Roberson is admitted to
ogy subjects. His previous academic experiences include practice before the U.S. Supreme Court, the U.S. Court of
associate vice president for academic affairs, Arkansas Military Appeals, the U.S. Tax Court, federal courts in
Tech University; dean of arts and sciences, University of California and Texas, the Supreme Court of Texas, and the
Houston, Victoria; director of programs, National College Supreme Court of California. His educational background
of District Attorneys; professor of criminology and direc- includes: PhD in human behavior, U.S. International
tor of Justice Center, California State University, Fresno; University; LLM in criminal law, criminology, and psy-
and assistant professor of criminal justice, St. Edwards chiatry, George Washington University; JD, American
University. Dr. Roberson’s nonacademic experience University; BA in political science, University of Missouri;
includes U.S. Marine Corps service as an infantry officer, and one year of postgraduate study at the University of
trial and defense counsel and military judge as a marine Virginia School of Law.

xv
chapter one

Introduction to the study of police misconduct

Learning objectives result of the television series Dragnet and Sergeant Joe
Friday.2 Dragnet was a radio, television, and movie series
After studying this chapter, the reader should under- about dedicated Los Angeles police detective Friday
stand the following concepts and issues: and his partners. Many consider it the most famous
and influential police drama series in media history. It
• What constitutes police misconduct started as a radio show and later, in 1951, became a tele-
• The issues involved in noble-cause corruption vision series. The original series lasted from 1951 until
• Basic forms of police misconduct 1959. It was revived in 1967 and continued until 1970.
• The right of police officers to refuse to testify Reruns are still playing on many television stations.
• Restrictions on police investigations The senseless beating of Rodney King by police
• Problems with the Law Enforcement Officers’ Bill officers was shown repeatedly in 1991 and again in
of Rights 1992 when the officers involved were first acquitted
• The purpose of the National Decertification in California state courts. Later, the officers were tried
Database (NDD) in federal district court for violation of King’s constitu-
tional rights and were found guilty.
Skolnick and Fyfe concluded that there were two
Introduction Americas. One is urban, cosmopolitan, and multicul-
According to the report of the President’s Task Force on tural. The other America is suburban, relatively safe,
21st Century Policing, decades of research and practice relatively prosperous, and unicultural. The first suffers
support the premise that people are more likely to obey disproportionately from crime, gang violence, poverty,
the law when they believe that those who are enforc- and homelessness. The second is predominantly white
ing it have the legitimate authority to tell them what and middle class. The Los Angeles police officers com-
to do. However, the public confers legitimacy only on mitted their crimes in the first America and were tried
those whom they believe are acting in procedurally just in a California state court in the second America (Simi
ways.1 Procedurally just behavior is based on four cen- Valley) and were found not guilty. After the jury find-
tral principles: ing was announced in April 1992, the Los Angeles riots
occurred in the first America.
• Treating people with dignity and respect The Los Angeles police cars carried the legend on
• Giving individuals a “voice” during encounters their doors: Los Angeles—the city of angels. After the
• Being neutral and transparent in decision-making King incident, many commentators suggested that the
• Conveying trustworthy motives city change the slogan on the police cars to read: Los
Angeles—where we treat you like a King.
The report noted that research demonstrates that While the actions of the police officers in the inci-
these principles lead to relationships in which the dent were certainly not a lone incident, the presence
community trusts that officers are honest, unbiased, of a video camera allowed the incident to be replayed
benevolent, and lawful. The community therefore feels in homes nationwide. The King incident introduced
obligated to follow the law and the dictates of legal police aggression into the media age. Since then, most
authorities, and is more willing to cooperate with and incidents with the police are captured on video or other
engage those authorities because it believes that it shares forms of media and, if derogatory, are published nation-
a common set of interests and values with the police. wide on local television news.
As we discuss police misconduct, it is quickly demon- As pointed out by Skolnick and Fyfe, the Rodney
strated that, in the present day, a lot of citizens no longer King incident, which was electronically memorialized
believe that the police are honest and trustworthy. by amateur photographer George Holliday precipitated
According to Jerome Skolnick and James Fyfe, vid- a national investigation by the U.S. Department of Justice
eos of the Los Angeles officers beating Rodney King and the U.S. Congress on the excessive use of force
in March 1991 destroyed our vision of the goodness of complaints against police departments. Skolnick and
police in the United States that we had formed as the Fyfe state that the police chiefs knew that an unwritten

1
2 Police Misconduct: A Global Perspective

message among the police was that “Brutality is an who do not meet the expected professional standard
occupational risk of a profession that rides with danger that we expect of them.
and is trained and authorized to use force, even deadly One question that the reader should keep in mind
force.”3 when reading this text is: Who should police the police?
Police misconduct is a complex and varied subject. There does not seem to be a uniform correct answer to
It is often easier to develop a book that focuses on criti- this question. By police misconduct, the author is refer-
cizing the thousands of hardworking individuals who ring not only to criminal acts by police officers, such as
risk their lives every day to protect us. That is not the the over use of force, but also to those acts that are com-
focus of this book. Here, we will explore various types mitted that violate the professional standards expected
of police misconduct and provide limited guidance on of an officer.
how to prevent misconduct in the future. As the author once discussed with a group of
There are over 12,000 law enforcement agencies in Mexican police chiefs, no one joins the police force and
the United States alone, and close to one million peo- endures the rigors of police basic training with the goal
ple are involved in law enforcement in one manner of becoming a corrupt police officer. This brings up
or another. According to a 2010 study by the United the question of how or why an officer transitions from
Nations Office on Drugs and Crime, the United States the idea of being a public servant to being one that is
has about 207 police officers per 100,000 population.4 The corrupt.
average for countries in Asia is about 435 police officers In this book, the author will examine police miscon-
per 100,000 population. The worldwide number of indi- duct in various countries around the world. However,
viduals involved in policing is therefore in the millions. readers should keep in mind that the vast majority of
The vast number probably makes law enforcement one the world’s police officers are honest and decent public
of the largest professions in the world. Accordingly, in servants. So in this text, we will concentrate on the outli-
a profession this large, there will be some individuals ers (Figure 1.1) (Boxes 1.1 and 1.2).

Figure 1.1 Police officer taking a bribe during the prohibition era. (Photo courtesy of the Library of Congress Prints and
Photographs Division.)
Chapter one: Introduction to the study of police misconduct 3

BOX 1.1 DUTY TO REPORT MISCONDUCT POLICY: SAN DIEGO POLICE

DEPARTMENT POLICY MANUAL SECTION 9.33 (04/29/14)
Members shall immediately report misconduct by another member. For the purpose of this policy, mis-
conduct means conduct that causes risk to the health and safety of the public or impairs the operation
and efficiency of the department or member or brings into disrepute the reputation of the member or
the department. The conduct could involve a violation of any law, statute, ordinance, city administrative
regulation, department policy or procedure, act of moral turpitude, or ethical violation. In this context,
misconduct involves a willful act done with a wrong intention and is more than mere negligence, error of
judgment, or innocent mistake. If any member has credible knowledge of another member’s misconduct,
the member should take immediate, reasonable action to stop the misconduct, and the member shall report
the misconduct to a supervisor as soon as possible. Supervisors shall assess the validity of any allegation
of misconduct by a member. If there is any evidence of misconduct or the allegation appears credible, then
the supervisor shall immediately notify their chain of command or the watch commander’s once.

BOX 1.2 COMPLAINANTS AGAINST CHICAGO POLICE OFFICERS

The city of Chicago has an Independent Police Review Authority (IPRA) that is responsible for conducting
investigations into complaints against police officers for domestic violence, excessive use of force, coercion,
and verbal abuse. Other types of misconduct are investigated by the police department’s Internal Affairs
Division (IAD).
In 2010, the IPRA and the IAD investigated 3861 complaints against police officers and found only 283
to be valid. There were 156 complaints of verbal abuse and none were considered as valid. The only area in
which the majority of complaints were upheld was alcohol abuse by officers. There were 22 allegations of
alcohol abuse and 13 were upheld. Of the 580 allegations of unreasonable use of force, only 11 disciplinary
charges were filed against police officers.
Overall, only 7.2% of the allegations of police misconduct were sustained. For example, it is hard to believe
that out of the 580 incidents where citizens claim that the police used excessive force, only 11 officers in
Chicago in 2010 were disciplined. Strictly from a statically point of view is it believable that about 93% of
the allegations of police misconduct were unfounded?
Source: Data regarding the Chicago Police Department were taken from the Chicago annual police report
available at https://portal.chicagopolice.org. Accessed on June 14, 2015. Note that the annual report for 2010
was the latest report available.

For the purposes of this book, police corruption is Martin notes that over the past few decades, great
considered a form of police misconduct in which law strides have been made in the law enforcement profes-
enforcement officers seek personal gain, illegally dis- sion. To begin with, many police agencies have avoided
criminate against individuals, use excessive force, fail to hiring candidates who have low ethical standards and
respect the rights of individuals, or commit other crimi- have identified those onboard employees early in their
nal offenses. careers who might compromise the department’s integ-
Although studied and researched, the topic of rity. In addition, research has discovered new methods
police corruption largely remains a mystery. Rich of testing candidates for their psychological propen-
Martin, in an FBI Law Enforcement Bulletin, noted that sity to act ethically. However, unethical conduct by the
Sir Robert Peel was credited with the concept that the nation’s police officers continues to occur in depart-
police depend on citizen cooperation when providing ments, large and small.
services in a democratic society. As such, the detrimen- Martin notes that research into police corruption
tal aspects of police misconduct cannot be overstated. In offers some understanding of the phenomenon in the
terms of public trust for law enforcement, recent polls hope of rooting out behavior that serves to undermine
show that only 56% of people rated the police as hav- the overall legitimacy of law enforcement. Theories
ing a high or very high ethical standard, compared with on the role of society in law enforcement, the negative
84% for nurses.5 influence of an officer’s department, and a person’s
4 Police Misconduct: A Global Perspective

own natural tendency to engage in unethical behavior Extent of police corruption

have been offered as explanations of police corruption.
Martin poses the question: Is this noble goal to rid our According to Professors David Bayley and Robert
nation’s police organizations of unethical behavior pos- Perito, police corruption is an international problem.
sible and plausible? Historically, police misconduct has been a factor in
Martin notes that the profession of policing, among the development of police institutions worldwide, but
many others, has a subculture unto itself. A morbid sense it is a particular problem in counterinsurgency and
of humor perhaps illustrates one of the most widely peacekeeping operations such as the U.S.-led North
known characteristics. In relation to corruption, however, Atlantic Treaty Organization police training program
the police subculture can either prevent its existence or in Afghanistan.7 There, police abuse and corruption
be a vehicle to spread it throughout a department. This appear endemic and have caused some Afghans to
subculture may be the most difficult aspect to address. seek the assistance of the Taliban against their own
Martin defines a subculture as a group of indi- government.
viduals who generally share attitudes, perceptions, Bayley and Perito defined police corruption as
assumptions, values, beliefs, ways of living, and tradi- abuse of authority for private gain. They noted that it is
tions. Because police work entails so many experiences among the world’s oldest practices and a fundamental
unique to the field, the subculture can almost become cause of intrastate conflict, providing a focal point for
stronger than the officer’s family ties. Additionally, many social groups’ grievances against governments.
work schedules outside of the normal realm can lead It can be equally crucial after conflict, when fledgling
to feelings of isolation that further strengthen the bond law enforcement institutions cannot control official
of the subculture. According to Martin, this subculture abuse. Whenever the international community has tried
may prevent or encourage police corruption (Box 1.3). to build a secure, viable society after a conflict, it has
faced the need to reform the institution most respon-
sible for law enforcement—the local police force—to
reduce its predatory and often pervasive corruption.
Procedural handling of The FBI considers police corruption as part of public
citizen complaints corruption. According to the FBI, public corruption is a
A 3-month study of citizen complaints indicated that breach of trust by federal, state, or local officials—often
many citizens were unhappy with the procedural with the help of private sector accomplices. It’s also the
aspects of the complaint process.6 Many felt that the law FBI’s top criminal investigative priority.
enforcement departments were not interested in pur- The FBI explains its priority as follows:
suing justice. The study indicated that the treatment of
citizens was often more relevant to how their complaint Because of its impact, corrupt public offi-
was processed rather than the solving of the complaint. cials undermine the country’s national secu-
The study noted five points to measure a citizen’s satis- rity, the overall safety, the public trust, and
faction with the process. The five points were confidence in the U.S. government, wasting
billions of dollars along the way. This cor-
• Overall approval ruption can tarnish virtually every aspect of
• Courtesy and politeness society. For example, a border official might
• Speed of response take a bribe, knowingly or unknowingly let-
• Level of concern ting in a truck containing weapons of mass
• Helpfulness destruction. Or corrupt state legislators
could cast deciding votes on a bill provid-
The research concluded that it is a requirement for ing funding or other benefits to a company
law enforcement agencies to provide citizens with an for the wrong reasons. Or at the local level,
opportunity to express their dissatisfaction with a police a building inspector might be paid to over-
officer’s conduct. The report concluded that studies have look some bad wiring, which could cause a
shown that procedural justice regarding dispute han- deadly fire down the road.8
dling crosses several aspects of everyday life, such as
interpersonal relationships, commercial interactions, Agencies that have a reputation for being corrupt
citizen–government contacts, and traditional commu-
nity–police encounters. Procedural justice applies to In June 2015, the inspector general of police for Nigeria,
the resolution of complaints of police misconduct. This in a public statement, stated that the Nigerian police had
concept aids in designing policies and procedures that the least corrupt officers of all the institutions in Nigeria.
result in higher levels of citizen satisfaction (Box 1.4). He also pledged to follow up on any corrupt police cases
Chapter one: Introduction to the study of police misconduct 5

BOX 1.3 EXCERPTS FROM AN FBI WEBSITE ARTICLE: COLOR-OF-LAW ABUSES

The Federal Bureau of Investigation (FBI) is the lead federal agency for investigating color-of-law abuses, which
include acts carried out by government officials operating both within and beyond the limits of their lawful
authority. Off-duty conduct may be covered if the perpetrator asserted his or her official status in some way.
During 2012, 42% of the FBI’s total civil rights caseload involved color-of-law issues—there were 380 color-
of-law cases opened during that year. Most of the cases involved crimes that fell into five broad areas:

• Excessive force
• Sexual assaults
• False arrest and fabrication of evidence
• Deprivation of property
• Failure to keep from harm

Excessive force: In making arrests, maintaining order, and defending life, law enforcement officers are
allowed to use whatever force is “reasonably” necessary. The breadth and scope of the use of force is vast—
from just the physical presence of the officer to the use of deadly force. Violations of federal law occur when it
can be shown that the force used was willfully “unreasonable” or “excessive.”
Sexual assaults by officials acting under color of law can happen in jails, during traffic stops, or in other
settings where officials might use their position of authority to coerce an individual into sexual compliance.
The compliance is generally gained because of a threat of an official action against the person if he or she
doesn’t comply.
False arrest and fabrication of evidence: The Fourth Amendment of the U.S. Constitution guarantees
protection against unreasonable searches or seizures. A law enforcement official using authority provided
under the color of law is allowed to stop individuals and, under certain circumstances, to search them and
retain their property. It is in the abuse of that discretionary power—such as an unlawful detention or illegal
confiscation of property—that a violation of a person’s civil rights may occur.
Fabricating evidence against or falsely arresting an individual also violates the color-of-law statute, tak-
ing away the person’s rights of due process and unreasonable seizure. In the case of deprivation of property,
the color-of-law statute would be violated by unlawfully obtaining or maintaining a person’s property, which
oversteps or misapplies the official’s authority.
The Fourteenth Amendment secures the right to due process; the Eighth Amendment prohibits the use
of cruel and unusual punishment. During an arrest or detention, these rights can be violated by the use of
force amounting to punishment (summary judgment). The person accused of a crime must be allowed the
opportunity to have a trial and should not be subjected to punishment without having been afforded the
opportunity of the legal process.
Failure to keep from harm: The public counts on its law enforcement officials to protect local communi-
ties. If it is shown that an official willfully failed to keep an individual from harm, that official could be in
violation of the color-of-law statute.
Source: FBI website https://www.fbi.gov/about-us/investigate/civilrights/color_of_law. Accessed on October
2, 2015.

in accordance with the nation’s constitutional provi- • Pakistan: The Pakistani police agencies are tradi-
sions.9 According to the inspector general, the Nigerian tionally considered among the most corrupt insti-
police have made frantic efforts in tackling corruption tutions. The agencies have a reputation for police
among the police officers. Nigeria is one of those coun- brutality, extortion, bribery, and for arresting
tries whose police departments have a reputation of innocent citizens for crimes that were knowingly
being corrupt. committed by police officers.
While there are numerous websites that rank the 10 • Sudan police: The country of Sudan has a reputation
most corrupt police agencies, the author found it difficult for being one of the most corrupt countries in the
to rank them with any degree of accuracy. Accordingly, world. The corrupt institutions of Sudan include
the agencies with reputations for being corrupt are the police. The Sudan police have a reputation
listed here without regard to their rank. for extortion, bribery, and the use of violence and
6 Police Misconduct: A Global Perspective

BOX 1.4 FORMER ILLINOIS POLICE CHIEF, SHERIFF’S DEPUTY SENTENCED

FOR MAIL FRAUD, MONEY LAUNDERING, AND TAX EVASION
On May 29, 2015, in Peoria, Illinois, Timothy J. Swanson of Bourbonnais was sentenced to 27 months in
prison, 3 years of supervised release, and ordered to pay $229,128 in restitution to victims as well as $55,140
in back taxes. On January 27, 2015, Swanson pleaded guilty to two counts of mail fraud, one count of money
laundering, two counts of tax evasion, and two counts of filing a false tax return. According to court docu-
ments, Swanson was employed as the City of Countryside, Illinois Chief of Police in 2005 and 2006. After
leaving the police department, Swanson joined the Kankakee County Sheriff’s Office in 2009. During 2005
and 2006, Swanson obtained the use of two U.S. Department of Defense helicopters for law enforcement
activities. To obtain funds to operate the helicopters, Swanson established the Illinois Regional Air Support
Service (IRASS) as a tax-exempt organization. No officer or director was to profit from its operation. From
at least 2005 through 2012, Swanson solicited police departments, corporations, and individuals to make
contributions to the IRASS. From 2006 to 2010, Swanson used a credit card in the name of the IRASS to
make personal purchases and used money donated or awarded to the IRASS to make payments on the
credit card. Swanson also used this money to purchase Rotors & Wings, LLC., a business that he operated.

retaliation against citizens who complain about • Mexico police: Many consider the Mexican police
police abuses. force as one of the most corrupt police forces in
• Russia: The Russian police are accused of commit- the world. In addition, there are constant rumors
ting police brutality, extorting bribes, and arrest- of the police working to protect the drug cartels.
ing innocent citizens. Their police force has also Other charges of misconduct include that the
been accused of using corruption and bribery to police often ignore reported crimes and fail to
meet monthly quotas. investigate them. One probable reason for the cor-
• Iraq police: The Iraqi police have a reputation for ruption is that police officers’ pay in Mexico is very
having a long history of corruption. The police low, and that police officers turn to corruption to
also appear to be ineffective at preventing violence supplement their income.
and protecting citizens. • Haiti police: The Haitian national police have been
• Afghanistan police: The Afghan police have a repu- accused of violating various human rights and
tation of extorting money and inflicting violence of being involved in crimes such as kidnapping,
on civilians at police checkpoints. They also have drug trafficking, and police brutality. There is some
a reputation of bribing citizens into paying them indication that the lawlessness of the police may
to avoid being arrested for crimes the citizens did have lessened after the earthquake in January 2010
not commit. (Figure 1.2).

Figure 1.2 Police ransacking effects taken from a bus in Hebron in the 1930s. (Photo courtesy of the Library of Congress Prints
and Photographs Division.)
Chapter one: Introduction to the study of police misconduct 7

Noble-cause corruption search, during the course of which Luna filed further
false reports.
Frequently, police misconduct is justified by officers as In due course, the drug indictment against Lewin
“noble-cause corruption,” and that the illegal actions was dismissed for failure to produce the informant, a
were undertaken to achieve acceptable and laudable ends. potentially exculpatory witness. At the hearing prior to
For example, an unauthorized search by a police officer the dismissal, Luna told additional lies consistent with
designed to take illegal contraband off the market is justi- his search warrant affidavit and his subsequent false
fied by some as noble-cause misconduct. Bayley and Perito identification of the informant.
cite the findings of the Judicial Commission of Inquiry In February 1989, a superior court judge directed
into corruption in the Ugandan police force in 2000. The Luna to file an affidavit about his search for the so-called
commission investigated murder and other abuses by informant. On March 12, 1989, Luna filed an affidavit with
Uganda police officers and the misappropriation of police the court and acknowledged that he had included false
property. The commission concluded that, while some of statements in the search warrant affidavit and that his tes-
these incidents were undertaken for personal gain, most timony regarding the Lewin case was not entirely correct.
were motivated by the notion of noble-cause corruption.10
Noble-cause corruption is described on the PoliceOne
website as a teleological (ends-oriented) approach to an Dangers of the noble cause
ethical dilemma that states law enforcement profession- One of the greatest dangers of noble-cause corruption is
als will utilize unethical, and sometimes illegal, means to that police officers may become accustomed to bending the
obtain a desired result.11 Frequently, in incidents involv- law, leading them to take actions that are increasing illegal
ing noble-cause corruption, the police officers involved and harmful to society when trying to ensure a conviction.
are good people trying to do the right thing. The PoliceOne website notes that there are a num-
ber of techniques that can modify the ethical orientation
Dirty Harry syndrome of officers. The website recommends that officers follow
two basic techniques:
The 1971 movie, Dirty Harry, is an action film in which
Clint Eastwood played the role of “Dirty” Harry • Follow Policies and Procedures (P&P): Every
Callahan, a San Francisco police detective. During the department has a standard set of P&P guidelines.
movie, Dirty Harry provokes a psychotic serial killer When in doubt, especially if you are a new officer,
to draw a weapon on him. Harry then kills the serial default to these tested and approved guidelines.
killer. The movie portrays Eastwood as a maverick cop At the very least, when Internal Affairs comes
who has little regard for rules but who also always gets knocking at your door, you’ll not only be able to
results. There were four sequels to the movie. The clear articulate how you did what you did but, more
message portrayed by the Dirty Harry movies was that importantly, why you did it.
the end justifies the means. • Always Act Professionally (AAP): This sounds
simple enough, but any seasoned professional
Noble-cause incident that went wrong knows how quickly rationality can be pushed
aside by pride, stubborn goals, or adrenaline.
In the Commonwealth v. Luna case, the defendant Carlos
Luna appealed his conviction for perjury and the filing The concept of noble-cause misconduct is a contra-
of false police reports.* In February 1988, Luna, a Boston diction in terms. It is or is not misconduct, despite the
police officer, applied for a warrant to search the apart- motives of the individuals involved in committing the
ment of a suspected drug dealer, Albert Lewin. Luna, acts (Figure 1.3) (Box 1.5).
in the application for the search warrant, indicated that
a specific informant had supplied him with informa-
tion about drug dealing in the Dorchester apartment.
During the search executed pursuant to the warrant,
Predicable forms of corruption
Luna’s partner, Detective Sherman Griffiths, was killed. Bayley and Perito noted that the reports of 32 police com-
Lewin was arrested and charged with the murder missions identified 35 different forms of corruption.12
of Griffiths. When a state court ordered Luna to reveal The professors divided the forms into four categories:
his supposed original informant, Luna made up a name
and physical description. When ordered to produce • Sale and organization
the informant, Luna and others engaged in a spurious • Predatory forms
• Subversion of justice
* Commonwealth v. Luna, 418 Mass. 749 (1994). • Gifts and discounts
8 Police Misconduct: A Global Perspective

Figure 1.3 The original mission of the police is to serve and protect the citizens, as shown in the photo were the officer is assist-
ing a young child. (Photo courtesy of the Library of Congress Prints and Photographs Division.)

BOX 1.5 EXAMPLE OF NOBLE-CAUSE CORRUPTION

A less obvious but perhaps even more threatening type of misconduct in law enforcement is noble-cause
corruption. This type of misconduct involves, not necessarily the “rotten apples” in the agency, but sometimes
the best officers in the agency or the “golden apples.” Noble-cause corruption is a mind-set or subculture that
fosters a belief that the end justifies the means. In other words, law enforcement is engaged in a mission to make
our streets and communities safe, and if that requires suspending the constitution or violating laws ourselves
in order to accomplish our mission, then for the greater good of society, so be it. The officers who adopt this
philosophy lose their moral compass.
Source: Adapted from Steve Rothlein’s letter distributed to the Public Training Council in 2008. Available at www.
patc.com. Assessed on June 9, 2015.

Bayley and Perito noted that the most common and alcohol as the major driver of corruption after the
forms of corruption were making false reports and 1970s (Box 1.6).
committing perjury, protecting illegal gambling, theft
of drugs on the street, theft of seized property, receiving
discounts on purchases, and selling information about
Police misconduct and the media
police operations. The researchers noted that, in stud- From the beginning of the development of police units,
ies prior to 1970, drug involvement was not mentioned. there has probably been a lot of corruption. In the
Drugs, however, became the major driver of corruption present-day world, the media portray police corrup-
after the 1970s. Drugs replaced gambling, prostitution, tion as at an all-time high. Each day, the majority of
Chapter one: Introduction to the study of police misconduct 9

BOX 1.6 FIXING POLICE TRAINING: COUNTERPOINT FROM THE POLICE POINT OF VIEW
In an editorial for Police Magazine in March 2015, David Griffith noted that, in the wake of anti-police demon-
strations, politicians made a lot of promises to fix policing and to retrain officers to use force sparingly. Griffith
claimed that many of the training programs designed to correct these problems appear to be sacrificing real-
world common sense about violence in favor of politically correct ideology.13
Griffith notes that, in one training program, officers were advised to close their eyes and take a deep
breath before responding to irate subjects. He points out that there are some hard truths about stopping “bad
guys,” whether they are terrorists or just criminals, and that these guys don’t want to be stopped so force is
often required to stop them. Any politically correct attempt to downplay this fact is therefore dangerous for
both the officer and the people the officer serves.

BOX 1.7 MEDIA POWER

In an era when guns, drugs, and gangs occupy city streets, the media may very well prove to be law enforce-
ment’s most formidable foe. This is because the media are a source of political and social power. As providers
of news and information, their messages influence the attitudes, opinions, beliefs, and voting patterns of the
public. For this reason, government officials and special interest groups attempt to influence the content of
media for the purpose of shaping public opinion. “Media power” represents the extent to which interested
groups command control of media messages relevant to their particular interests.
Source: An excerpt from Jarret S. Lovell (2002) Media Power and Information Control: A Study of Police Organizations
and Media Relations. National Institute of Justice, Rockville, MD: GRP 2000-IJ-CX-0046, p. 3.

professionals who develop and publish news items look officers with whom they have a close working
for headlines. As one reporter once noted, “If it does not relationship
bleed, it does not lead” (Box 1.7). • Political pressures

Human Rights Watch (HRW) has noted that many

Punishing police misconduct critics have issues with local prosecution of police offi-
Police brutality is one of the most serious, enduring, and cer misconduct being left with the local prosecutor. One
divisive human rights violations in the United States. effort has been to direct the investigation and prosecu-
The problem is nationwide, and its nature is institution- tion of alleged police misconduct away from prosecu-
alized. For these reasons, the U.S. government—as well tors of general jurisdiction and the creation of civilian
as state and city governments, which have an obligation review boards as a means of alternate disposition of
to respect the international human rights standards by charges of police misconduct. This recommendation
which the United States is bound—deserve to be held will be discussed in Chapters 7 and 9, when discussing
accountable by international human rights bodies and the functions of civilian review boards.
public opinion. The HRW recommended that the federal govern-
While there are a number of cases in which ment compiles and publishes relevant, nationwide
prosecutors have successfully prosecuted officers for statistical data on police abuse to inform its own policy-
misconduct, for the most part most allegations of police making, maintain oversight of local data collection, and
misconduct are not indicted or punished. This has been facilitate monitoring by both governmental and non-
an area where prosecutors have exercised very selec- governmental entities. The HRW noted that the Justice
tive prosecution. Numerous excuses have been given Department should provide an annual report on the
for not prosecuting police misconduct.14 These include: number of complaints alleging human rights violations
against police officers received and investigated and
• That it is difficult to obtain a conviction because the number of officers indicted or convicted under the
the judge or jury members tend to believe the offi- federal criminal civil rights statutes. The report should
cer and not the complaining citizen contain an analysis of such issues as official acts of
• That prosecutors and the police work closely with racial discrimination, trends in types of abuse, difficul-
each other, and prosecutors hesitate to prosecute ties in prosecuting cases, and sources of information.
10 Police Misconduct: A Global Perspective

The HRW also noted that Congress should with- continued for more than a week after the shooting.
hold federal grants to police departments that have The Missouri governor ordered the local police agen-
failed to provide data on the use of excessive force. cies to cede most of their authority to the state highway
Congress has reportedly failed to provide adequate patrol. The governmental response to the protests was
funding for data compilation on police use of excessive criticized for their overly insensitive tactics and milita-
force and should do so without delay, provided that the rized response.
research projects are refocused to fulfill the congressio- In November 2014, the St. Louis County grand jury
nal mandate. Members of Congress should also monitor decided not to indict the police officer, and in March
the Justice Department’s efforts to compile these data 2015, the U.S. Department of Justice cleared the officer
and insist that use of excessive force data be produced of civil rights violations in the shooting. In 2015, many
immediately. news media outlets reported a rise in violent crime in
major cities in the United States. The phrase “Ferguson
effect” was coined as a popular description of the phe-
Are U.S. police too aggressive? nomenon. Many in the media blamed the Ferguson
In 2015, a French editorial stated that “The sheer fla- effect for the increase in crime.17
grance of police brutality against black Americans leaves Apparently, the media failed to notice that most
one speechless.” The editorial also noted that a single of the places that were cited as having a violent crime
killing of an unarmed suspect in a European country wave were experiencing an all-time low in crime, and
would be unthinkable. The editorial opined that the that many of the places where increases in crime were
police culture in the United States had gone mad.15 reported were still the safest they had been in years
According to the May 15, 2015, issue of The Week, 458 or even decades. In addition, there was weak support
people have been killed by police in the United States for the claim that crime increases were the result of
but many civic groups contend that the number is over changes in policing; counterexamples indicated that
twice that amount. It was noted that in Germany dur- retrenchment of low-level policing did not increase
ing that same period only eight individuals were killed crime.18
by the police, and that with just 4.4% of the world’s A later study coauthored by Professors Justin
population, the United States has locked up 22% of the Nix of the University of Louisville and Scott Wolfe
world’s prisoners. According to Marie-Astrid Langer, a of the University of South Carolina concluded that,
Swiss reporter, American police believe that the only while there was no “Ferguson effect,” criticism from
way to deter crime is to jail potential criminals whereas the incident has resulted in police officers being less
European police are trained to defuse situations calmly.16 motivated post-Ferguson. The professors concluded
Some European researchers contend that, when that officers are being less proactive on the job and
the United States was first settled, pioneers relied on less willing to engage directly with community
themselves and their neighbors, and law enforcement members to solve problems. As one police supervi-
was called on only in severe cases, such as murder. sor noted, “We are not seeing the same level of self-
Accordingly, Americans are used to police who regu- initiated activity since Ferguson that we saw before
larly use excessive force, and have produced a system Ferguson”19 (Box 1.8).
where authority can shoot or confiscate first and ask
questions later.16

Ferguson effect Militarization of America’s

Michael Brown, an 18-year-old black male, was shot and police forces
killed on August 9, 2014, by a white Ferguson police offi- Mexico has used their army to supplement their police
cer. The circumstances surrounding the shooting are forces. A discussion with many human rights activists
disputed. It appears that, shortly before the shooting, indicated that the citizens of Mexico are unhappy with
Brown stole several packages of cigarillos from a nearby their government’s use of military troops to supplement
convenience store. The police officer was notified of the the police. The United States has always drawn a firm
robbery and given a description of Brown. When the line between the military and the police.20 In a military
officer confronted Brown, shots were fired and Brown boot camp, the trainees are taught to meet the enemy
died as the result. It is reported that the officer fired 12 and destroy them, whereas in law enforcement recruit-
shots at Brown, who was unarmed but moving toward ment training, the trainees are taught that the basic mis-
the officer. sion of law enforcement is to protect the public. There
The killing of Brown caused unrest in the city is a significant different between “meet the enemy and
of Ferguson. The protests, which included violence, destroy them” and the mission to protect the public.
Chapter one: Introduction to the study of police misconduct 11

BOX 1.8 EXCERPTS FROM THE DREPARTMENT OF JUSTICE

INVESTIGATION OF THE FERGUSON POLICE DEPARTMENT
In September 2014, the Department of Justice opened an investigation of the Ferguson Police Department
(FPD) pursuant to the Violent Crime Control and Law Enforcement Act of 1994, the Omnibus Crime Control
and Safe Streets Act of 1968, and Title VI of the Civil Rights Act of 1964. The investigation focused on allega-
tions that Ferguson law enforcement engaged in a pattern or practice of violations of the Constitution and
federal statutory law. On March 4, 2015, DOJ announced the results of the investigation, finding that FPD’s
police and municipal court practices systematically violate the First, Fourth and Fourteenth Amendments.
DOJ determined that FPD’s approach to law enforcement is unduly focused on revenue generation and that
its practices both reflect and exacerbate existing race bias. As a result, Ferguson’s law enforcement prac-
tices discriminate against African Americans and decrease trust between the Ferguson community and law
enforcement, hampering FPD’s ability to ensure public safety.
Ferguson has allowed its focus on revenue generation to fundamentally compromise the role of Ferguson’s
municipal court. The municipal court does not act as a neutral arbiter of the law or a check on unlawful police
conduct. Instead, the court primarily uses its judicial authority as the means to compel the payment of fines
and fees that advance the City’s financial interests. This has led to court practices that violate the Fourteenth
Amendment’s due process and equal protection requirements. The court’s practices also impose unnecessary
harm, overwhelmingly on African-American individuals, and run counter to public safety.

POLICE PRACTICES
The City’s emphasis on revenue generation has a profound effect on FPD’s approach to law enforcement. Patrol
assignments and schedules are geared toward aggressive enforcement of Ferguson’s municipal code, with
insufficient thought given to whether enforcement strategies promote public safety or unnecessarily undermine
community trust and cooperation. Officer evaluations and promotions depend to an inordinate degree on “pro-
ductivity,” meaning the number of citations issued. Partly as a consequence of City and FPD priorities, many
officers appear to see some residents, especially those who live in Ferguson’s predominantly African-American
neighborhoods, less as constituents to be protected than as potential offenders and sources of revenue.
This culture within FPD influences officer activities in all areas of policing, beyond just ticketing. Officers
expect and demand compliance even when they lack legal authority. They are inclined to interpret the exer-
cise of free-speech rights as unlawful disobedience, innocent movements as physical threats, and indications
of mental or physical illness as belligerence. Police supervisors and leadership do too little to ensure that offi-
cers act in accordance with law and policy, and rarely respond meaningfully to civilian complaints of officer
misconduct. The result is a pattern of stops without reasonable suspicion and arrests without probable cause
in violation of the Fourth Amendment; infringement on free expression, as well as retaliation for protected
expression, in violation of the First Amendment; and excessive force in violation of the Fourth Amendment.
Even relatively routine misconduct by Ferguson police officers can have significant consequences for the
people whose rights are violated. For example, in the summer of 2012, a 32-year-old African-American man
sat in his car cooling off after playing basketball in a Ferguson public park. An officer pulled up behind the
man’s car, blocking him in, and demanded the man’s Social Security number and identification. Without
any cause, the officer accused the man of being a pedophile, referring to the presence of children in the
park, and ordered the man out of his car for a pat-down, although the officer had no reason to believe the
man was armed. The officer also asked to search the man’s car. The man objected, citing his constitutional
rights. In response, the officer arrested the man, reportedly at gunpoint, charging him with eight viola-
tions of Ferguson’s municipal code. One charge, making a False Declaration, was for initially providing
the short form of his first name (e.g., “Mike” instead of “Michael”), and an address which, although legiti-
mate, was different from the one on his driver’s license. Another charge was for not wearing a seat belt,
even though he was seated in a parked car. The officer also charged the man both with having an expired
operator’s license, and with having no operator’s license in his possession. The man told us that, because
of these charges, he lost his job as a contractor with the federal government that he had held for years.
Source: DOJ website at https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/
04/ferguson_police_department_report.pdf. Accessed on October 2, 2015.
12 Police Misconduct: A Global Perspective

The concept of keeping the military and police sep- In December 2014, President Obama created the
arated can be traced back to a civil war act, the Posse President’s Task Force on 21st Century Policing. In
Comitatus Act. This act prohibits police from enlisting establishing the task force, the president stated that
active-duty military personnel for civilian law enforce-
ment. To skirt the provisions of this act, many police Trust between law enforcement agencies and
leaders and politicians have encouraged police officers the people they protect and serve is essen-
to use the tactics and adopt the mind-set of military tial to the stability of our communities, the
personnel.21 integrity of our criminal justice system, and
To a great extent, two trends have fostered the milita- the safe and effective delivery of policing
rization of the police: the development of special weapons services. http://www.cops.usdoj.gov/pdf/
and tactics (SWAT) teams and the “war on drugs.” Former taskforce/Interim_TF_Report_150228_Intro_
Los Angeles police chief Daryl Gates is generally cred- to_Implementation.pdf. Accessed on October
ited with establishing the first SWAT teams in early 1966. 2, 2015.
Gates was looking for ways to counter the guerrilla tactics
used against the Los Angeles Police Department (LAPD). In the summer of 2015, the task force submitted
He developed the concept of assembling an elite unit of its report to the president. The report contained some
officers that were trained by the military in subjects such important recommendations for improving policing
as crowd control and sniping. He wanted to name this and reducing police misconduct. Included in this sec-
new team the “Special Weapons Attack Team,” but city tion is the executive summary of their report. While it
officials objected to the use of the work “attack” and per- is too early to determine whether the task force recom-
suaded him to change its name to “Special Weapons and mendations will reduce police misconduct, the federal
Tactics.”21 The first raid carried out by the SWAT team was government should be applauded for their attempts.
a high-profile shootout with the city’s Black Panther mili- The final report resulted in the announcement of
tia. His team was later involved in a celebrated standoff in the White House Police Data Initiative. The initiative
1974 against the Symbionese Liberation Army, which was is designed to ensure the release of information to the
carried out live on national television. By 1975, there were public of shows of force by officers and shootings in
over 500 SWAT teams in the country. which police were involved. The initiative was designed
The trend in the militarization process was to promote the use of open data to increase transpar-
President Nixon’s declaration of the war on drugs. The ency, build community trust, and support innovation in
Nixon administration influenced Congress to pass a bill the communities, using better technology, such as early
authorizing no-knock raids for federal narcotics agents. warning systems, to identify problems, increase inter-
While Congress repealed the no-knock law in 1974, the nal accountability, and decrease inappropriate uses of
policy was established and continued. In addition, the force. The initiative is credited with the increased use of
administration rhetoric served to dehumanize drug body cameras by police officers.
offenders. It was during the term of President Reagan in The task force’s results recommended that police
1980 when the war on drugs and the SWAT teams con- departments be more transparent about serious events
verged. President Reagan provided or encouraged new by communicating with citizens and the media. It also
funding, equipment, and a more active drug policing suggested initiating activities unrelated to enforcing the
role for the police SWAT teams. The Reagan administra- law to build trust with society.
tion took a more active role in the war on drugs and sup- The report also looked at issues regarding law
ported a more confrontational and militaristic approach enforcement involvement in immigration and the
to combat it. In 1989, President Bush created a series of appearance of police officers when dealing with riots
regional task forces within the Department of Defense like those seen in Ferguson, New York, and Baltimore.
designed to bring together the police and the military Immediately after the report was released, a common
for drug interdiction. In the 1990s, Congress created a concern voiced by many police researcher was that
reutilization program in order to provide police depart- increased media coverage could make a police offi-
ments with military weapons. cer’s job more dangerous. Probably only time will tell
whether this concern is correct (Box 1.9).
President’s Task Force On
21st Century Policing
Executive summary of task force report
“When any part of the American family does
not feel like it is being treated fairly, that’s Trust between law enforcement agencies and the people
a problem for all of us.” —President Barack they protect and serve is essential in a democracy. It is
Obama key to the stability of our communities, the integrity of
Chapter one: Introduction to the study of police misconduct 13

BOX 1.9 EXECUTIVE ORDER

ESTABLISHMENT OF THE PRESIDENT’S TASK FORCE ON 21ST CENTURY POLICING

By the authority vested in me as President by the Constitution and the laws of the United States of America,
and in order to identify the best means to provide an effective partnership between law enforcement and local
communities that reduces crime and increases trust, it is hereby ordered as follows:
Section 1. Establishment. There is established a President’s Task Force on 21st Century Policing (Task Force).

Sec. 2. Membership.
1. The Task Force shall be composed of not more than members appointed by the President. The mem-
bers shall include distinguished individuals with relevant experience or subject-matter expertise in law
enforcement, civil rights, and civil liberties.
2. The President shall designate two members of the Task Force to serve as Co-Chairs.

Sec. 3. Mission.
1. The Task Force shall, consistent with applicable law, identify best practices and otherwise make recom-
mendations to the President on how policing practices can promote effective crime reduction while
building public trust.
2. The Task Force shall be solely advisory and shall submit a report to the President by March 2, 2015.
Sec. 4. Administration.
1. The Task Force shall hold public meetings and engage with Federal, State, tribal, and local officials, tech-
nical advisors, and nongovernmental organizations, among others, as necessary to carry out its mission.
2. The Director of the Office of Community Oriented Policing Services shall serve as Executive Director of
the Task Force and shall, as directed by the Co-Chairs, convene regular meetings of the Task Force and
supervise its work.
3. In carrying out its mission, the Task Force shall be informed by, and shall strive to avoid duplicating, the
efforts of other governmental entities.
4. The Department of Justice shall provide administrative services, funds, facilities, staff, equipment, and
other support services as may be necessary for the Task Force to carry out its mission to the extent permit-
ted by law and subject to the availability of appropriations.
5. Members of the Task Force shall serve without any additional compensation for their work on the Task
Force, but shall be allowed travel expenses, including per diem, to the extent permitted by law for per-
sons serving intermittently in the Government service (5 U.S.C. 5701-5707).

Sec. 5. Termination. The Task Force shall terminate 30 days after the President requests a final report from the
Task Force.

Sec. 6. General Provisions.

1. Nothing in this order shall be construed to impair or otherwise affect
a. The authority granted by law to a department, agency, or the head thereof; or
b. The functions of the Director of the Office of Management and Budget relating to budgetary, admin-
istrative, or legislative proposals.
2. This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforce-
able at law or in equity by any party against the United States, its departments, agencies, or entities, its
officers, employees, or agents, or any other person.
3. Insofar as the Federal Advisory Committee Act, as amended (5 U.S.C. App.) (the “Act”) may apply to the
Task Force, any functions of the President under the Act, except for those in section 6 of the Act, shall be
performed by the Attorney General.
14 Police Misconduct: A Global Perspective

our criminal justice system, and the safe and effective a guardian—rather than a warrior—mind-set to build
delivery of policing services. trust and legitimacy, both within agencies and with
In light of recent events that have exposed rifts in the the public. Toward that end, law enforcement agencies
relationships between local police and the communities should adopt procedural justice as the guiding principle
they protect and serve, on December 18, 2014, President for internal and external policies and practices to guide
Barack Obama signed an executive order establishing their interactions with rank-and-file officers and with
the Task Force on 21st Century Policing. The president the citizens they serve.
charged the task force with identifying best practices Law enforcement agencies should also establish a
and offering recommendations on how policing prac- culture of transparency and accountability to build pub-
tices can promote effective crime reduction while build- lic trust and legitimacy. This is critical to ensuring that
ing public trust. decision-making is understood and in accordance with
This executive summary provides an overview of stated policy.
the recommendations of the task force, which met seven Law enforcement agencies should also proactively
times in January and February 2015. These listening ses- promote public trust by initiating positive nonen-
sions, held in Washington, DC; Phoenix, Arizona; and forcement activities to engage communities that typi-
Cincinnati, Ohio, brought the 11 members of the task cally have high rates of investigative and enforcement
force together with more than 100 individuals from involvement with government agencies. Law enforce-
diverse stakeholder groups—law enforcement officers ment agencies should also track and analyze the level
and executives, community members, civic leaders, of trust that communities have in police, just as they
advocates, researchers, academics, and others—in addi- measure changes in crime. This can be accomplished
tion to many others who submitted written testimony to through consistent annual community surveys. Finally,
study the problems from all perspectives. law enforcement agencies should strive to create a
The task force recommendations, each with action workforce that encompasses a broad range of diversity
items, are organized around six main topic areas including race, gender, language, life experience, and
or “pillars:” building trust and legitimacy, policy and cultural background, to improve understanding and
oversight, technology and social media, community effectiveness in dealing with all communities.
policing and crime reduction, officer training and edu-
cation, and officer safety and wellness.
The task force also offered two overarching recom-
Pillar two: Policy and oversight
mendations: that the president should support the cre- Pillar two emphasizes that, if police are to carry out
ation of a national crime and justice task force to examine their responsibilities according to established policies,
all areas of criminal justice and propose reforms and, those policies must reflect community values. Law
as a corollary to this effort, the task force also recom- enforcement agencies should collaborate with commu-
mended that the president support programs that take a nity members, especially in communities and neighbor-
comprehensive and inclusive look at community-based hoods disproportionately affected by crime, to develop
initiatives addressing core issues such as poverty, edu- policies and strategies for deploying resources that aim
cation, and health and safety. to reduce crime by improving relationships, increasing
community engagement, and fostering cooperation.
To achieve this end, law enforcement agencies
Pillar one: Building trust and legitimacy should have clear and comprehensive policies on the
Building trust and nurturing legitimacy on both sides use of force (including training on the importance of
of the police/citizen divide is the foundational principle de-escalation), mass demonstrations (including the
underlying the nature of relations between law enforce- appropriate use of equipment, particularly rifles and
ment agencies and the communities they serve. Decades armored personnel carriers), consent before searches,
of research and practice support the premise that people gender identification, racial profiling, and perfor-
are more likely to obey the law when they believe that mance measures, among others such as external and
those who are enforcing it have authority that is per- independent investigations, prosecutions of officer-
ceived as legitimate by those subject to the authority. involved shootings, and other use-of-force situations
The public confers legitimacy only on those whom they and in-custody deaths. These policies should also
believe are acting in procedurally just ways. In addition, include provisions for the collection of demographic
law enforcement cannot build community trust if it is data on all parties involved. All policies and aggre-
seen as an occupying force, coming in from the outside gate data should be made publicly available to ensure
to impose control on the community. Pillar one seeks transparency.
to provide focused recommendations on building this To ensure policies are maintained and current, law
relationship. Law enforcement culture should embrace enforcement agencies are encouraged to periodically
Chapter one: Introduction to the study of police misconduct 15

review policies and procedures, conduct nonpunitive Pillar four: Community policing
peer reviews of critical incidents separate from criminal and crime reduction
and administrative investigations, and establish civilian
oversight mechanisms with their communities. Pillar four focuses on the importance of community
Finally, to assist law enforcement and the com- policing as a guiding philosophy for all stakeholders.
munity to achieve the elements of pillar two, the U.S. Community policing emphasizes working with neigh-
Department of Justice, through the Office of Community borhood residents to coproduce public safety. Law
Oriented Policing Services (COPS Office) and Office of enforcement agencies should therefore work with com-
Justice Programs (OJP), should provide technical assis- munity residents to identify problems and collaborate
tance and incentive funding to jurisdictions with small on implementing solutions that produce meaningful
police agencies that take steps toward interagency col- results for the community. Specifically, law enforce-
laboration, shared services, and regional training. They ment agencies should develop and adopt policies and
should also partner with the International Association of strategies that reinforce the importance of community
Directors of Law Enforcement Standards and Training engagement in managing public safety.
(IADLEST) to expand its national decertification index Law enforcement agencies should also engage in
to serve as the national register of decertified officers, multidisciplinary, community team approaches for
with the goal of covering all agencies within the United planning, implementing, and responding to crisis situa-
States and its territories. tions with complex causal factors.
Communities should support a culture and prac-
tice of policing that reflects the values of protection and
Pillar three: Technology and social media promotion of the dignity of all—especially the most
The use of technology can improve policing prac- vulnerable, such as children and youth most at risk for
tices and build community trust and legitimacy, but crime or violence. Law enforcement agencies should
its implementation must be built on a defined policy avoid using law enforcement tactics that unnecessarily
framework with its purposes and goals clearly delin- stigmatize youth and marginalize their participation in
eated. Implementing new technologies can give police schools (where law enforcement officers should have
departments an opportunity to fully engage and edu- limited involvement in discipline) and communities. In
cate communities in a dialogue about their expectations addition, communities need to affirm and recognize the
for transparency, accountability, and privacy. But tech- voices of youth in community decision making, facili-
nology changes quickly in terms of new hardware, soft- tate youth participation in research and problem solv-
ware, and other options. Law enforcement agencies and ing, and develop and fund youth leadership training
leaders need to be able to identify, assess, and evaluate and life skills through positive youth/police collabora-
new technology for adoption, and to do so in ways that tion and interactions.
improve their effectiveness, efficiency, and evolution
without infringing on individual rights.
Pillar five: Training and education
Pillar three guides the implementation, use, and
evaluation of technology and social media by law As our nation becomes more pluralistic and the scope
enforcement agencies. To build a solid foundation of law enforcement responsibilities expands, the need
for law enforcement agencies in this field, the U.S. for expanded and more effective training has become
Department of Justice, in consultation with the law critical. Today’s line officers and leaders must be trained
enforcement field, should establish national standards and capable of addressing a wide variety of challenges
for the research and development of new technology including international terrorism, evolving technolo-
including auditory, visual, and biometric data, “less gies, rising immigration, changing laws, new cultural
than lethal” technology, and the development of segre- mores, and a growing mental health crisis.
gated radio spectra such as FirstNet. These standards Pillar five focuses on the training and educational
should also address compatibility, interoperability, and needs of law enforcement. To ensure the high qual-
implementation needs, both within local law enforce- ity and effectiveness of training and education, law
ment agencies and across agencies and jurisdictions, enforcement agencies should engage community mem-
and should maintain civil and human rights protection. bers, particularly those with special expertise, in the
Law enforcement implementation of technology should training process and provide leadership training to all
be designed to consider local needs and align with these personnel throughout their careers.
national standards. Finally, law enforcement agencies To further assist the training and educational needs
should adopt model policies and best practices for tech- of law enforcement, the federal government should
nology-based community engagement that increases support the development of partnerships with train-
community trust and access. ing facilities across the country to promote consistent
16 Police Misconduct: A Global Perspective

standards for high-quality training and establish train- the recommendations contained in this report. The pres-
ing innovation hubs involving universities and police ident should direct all federal law enforcement agencies
academies. A national postgraduate institute of policing to implement the task force recommendations to the
for senior executives should be created, with a standard- extent practicable, and the U.S. Department of Justice
ized curriculum preparing participants to lead agencies should explore public–private partnership opportuni-
in the twenty-first century. ties with foundations to advance the implementation of
One specific method of increasing the quality of the recommendations. Finally, the COPS Office and the
training would be to ensure that Peace Officer and OJP should take a series of targeted actions to assist the
Standards Training (POST) boards include manda- law enforcement field in addressing current and future
tory crisis intervention training (CIT), which equips challenges.
officers to deal with individuals in crisis or living
with mental disabilities as part of both basic recruit
Conclusion
and in-service officer training, as well as instruction
in disease of addiction, implicit bias and cultural The members of the Task Force on 21st Century Policing
responsiveness, policing in a democratic society, pro- are convinced that the concrete recommendations
cedural justice, and effective social interaction and contained in this publication will bring long-term
tactical skills. improvements to the ways in which law enforcement
agencies interact with and bring positive change to their
communities.
Pillar six: Officer wellness and safety
The wellness and safety of law enforcement officers National decertification database
is critical, not only for the officers, their colleagues,
and their agencies, but also for public safety. Pillar six The NDD lists officers from member states who have
emphasizes the support and proper implementation of lost their state certification due to criminal convic-
officer wellness and safety as a multipartner effort. tion or other misconduct disallowed by the report-
The U.S. Department of Justice should enhance and ing state. The database is administered by IADLEST,
further promote its multifaceted officer safety and well- and each record indicates where an appropriate user
ness initiative. Two specific strategies recommended for may go to obtain more information on the decertified
the U.S. Department of Justice include (1) encouraging individual. Unfortunately, not all states are subscribed
and assisting departments in the implementation of sci- to the database, which was started in 1996 as part of
entifically supported shift lengths by law enforcement an interstate communication system linking U.S. law
and (2) expanding efforts to collect and analyze data, enforcement agencies. The database is an effort to pre-
not only on officer deaths, but also on injuries and “near vent “bad cops” from becoming “gypsy cops.” As of
misses.” August 2014, there were 29 states contributing to the
Law enforcement agencies should also promote database.22
wellness and safety at every level of the organization. A 2005 survey reported by the National Criminal
For instance, every law enforcement officer should Justice Reference Service indicated that, in 2004, over
be provided with individual tactical first aid kits and 2000 law enforcement officers had their certificates
training as well as antiballistic vests. In addition, law revoked for cause. The states with the highest number
enforcement agencies should adopt policies that require of revocations were California, Florida, and Georgia.23
officers to wear seat belts and bullet-proof vests and pro-
vide training to raise awareness of the consequences of Summary
failure to do so. Internal procedural justice principles
should be adopted for all internal policies and interac- • Skolnick and Fyfe have concluded that there are
tions. The federal government should develop programs two Americas. One is urban, cosmopolitan, and
to provide financial support for law enforcement officers multicultural and the other is suburban, relatively
to continue to pursue educational opportunities. Finally, safe, relatively prosperous, and unicultural. The
Congress should develop and enact peer-reviewed error first suffers disproportionately from crime, gang
management legislation. violence, poverty, and homelessness. The second is
predominantly white and middle class.
• Police misconduct is a complex and varied subject.
• There are over 12,000 law enforcement agencies in
Implementation recommendations
the United States alone, and close to one million
The administration, through policies and practices people involved in law enforcement in one man-
already in place, can start right now to move forward on ner or another.
Chapter one: Introduction to the study of police misconduct 17

• The vast number probably makes law enforce- mother is not informed because the officer instructed
ment one of the largest professions in the world. the school personnel to not tell her. RM denies any
Accordingly, in a profession this large, there will involvement in the robberies. The officer tells RM
be some individuals who do not meet the expected that if he does not confess, the officer will arrest the
professional standard expected of them. mother and she will lose custody of the children. RM
• Police corruption is considered a form of police confesses.
misconduct in which law enforcement officers The next day, the officer tells the school principal
seek personal gain, illegally discriminate against that he does not believe that RM was involved in the
individuals, use excessive force, fail to respect the robberies. In addition, RM does not match the physi-
rights of individuals, or commit other criminal cal description of any of the robbers. Meanwhile, RM is
offenses. retained in custody for 9 days before he is released by
• A subculture is a group of individuals who gener- the prosecutor. When the prosecutor discovers that RM
ally share attitudes, perceptions, assumptions, val- was in custody, she immediately orders his release and
ues, beliefs, ways of living, and traditions. Because drops all charges.
police work entails so many experiences unique to As a member of the Cincinnati civil service board
the field, the police subculture can almost become considering the misconduct of the officer, consider
stronger than the officer’s family ties.
• Police corruption is an international problem. • What are the specific acts of misconduct commit-
Historically, police misconduct has been a factor in ted by the officer?
the development of police institutions worldwide, • What action should be taken against the officer?
but it is a particular problem in counterinsurgency
and peacekeeping operations.
• The FBI considers police corruption as part of pub-
lic corruption. According to the FBI, public corrup- Discussion questions
tion is a breach of trust by federal, state, or local 1. If you were the chief of police for Ferguson during
officials—often with the help of private sector the Brown killing, how would you have handled
accomplices. It’s also the FBI’s top criminal inves- the situation?
tigative priority. 2. What was the purpose of the President’s Task
• Frequently, police misconduct is justified by the Force on 21st Century Policing?
officers as “noble-cause corruption.” where the ille- 3. Why is it recommended that any complaints filed
gal actions were undertaken to achieve acceptable against a police officer be in writing?
and laudable ends. For example, an unauthorized 4. Discuss the relationship of the media and the
search by a police officer designed to take illegal police and how the media may help to reduce
contraband off the market is justified by some as police misconduct.
noble-cause misconduct. 5. What rights should a police officer have when
• There are four different forms of police corruption. being investigated for official misconduct?
They are sale and organization, predatory forms,
subversion of justice, and gifts and discounts.
• The President’s Task Force on 21st Century Policing References
recommends that the police be more transparent
in discussing these issues. 1. President’s Task Force on 21st Century Policing. 2015.
Report of the President’s Task Force on 21st Century
Policing. Washington, DC: Office of Community
Oriented Policing Services.
Practicum 2. Jerome H. Skolnick and James J. Fyre (1993) Above the
Law: Police and the Excessive Use of Force. New York: Free
A series of robberies took place in a Cincinnati neigh- Press.
borhood. After one of the robberies, a resident took 3. Jerome H. Skolnick and James J. Fyre (1993) Above the
down the license number of a car that was perceived Law: Police and the Excessive Use of Force, p. 8. New York:
to be moving about the neighborhood in a suspi- Free Press.
4. Stefan Harrendorf, Markku Heiskanen, and Steven
cious manner. The police traced the plate to a female
Malby (eds.) (2010) International Statistics on Crime
citizen. A police officer determines that the citizen and Justice, HEUNI Publication Series, No. 64. Helsinki:
has three children. He goes to their school and arrests United Nations.
all three. 5. Rich Martin (May, 2010) Police corruption: And analyti-
One of the minors is identified as RM. RM is driven cal look into police ethics, FBI Law Enforcement Bulletin,
to the police station where he is interrogated. The Vol. 79 no. 5, 1–2.
18 Police Misconduct: A Global Perspective

6. Mark Carignan (March, 2013) Research forum: 15. As reported in the article (May 15, 2015) How they see
Misconduct allegations: Procedural vs. Distributional us: Why the U.S. police are so aggressive, The Week,
Justice, FBI Law Enforcement Bulletin. Vol. 82, No. 3. p. 4.
7. David Bayley and Robert Perito (2011) Special report: Police 16. As reported in the article (May 15, 2015) How they see
corruption-what past scandals teach about current chal- us: Why the U.S. police are so aggressive, The Week,
lenges. Washington, DC: United States Institute of Peace. p. 5.
Accessible at www.usip.org. Accessed on June 14, 2015. 17. “Investigation of the Ferguson Police Department”
8. FBI website at www.fbi.gov. Accessed on June 9, 2015. United States Department of Justice. USDOJ Civil Rights
9. As reported on Vanguard’s website at http://www.van- Division. Available at www.justice.gov March 4, 2015.
guardngr.com/2015/06/of-all-institutions-in-nigeria- Accessed on June 13, 2015.
police-has-least-corrupt-officers-igp/. Accessed on June 18. E-mail from Professor Laura Dugan on behalf of the
9, 2015. American Society of Criminology Policy Committee on
10. David Bayley and Robert Perito (2011) Special report: June 13, 2015.
Police corruption–what past scandals teach about cur- 19. Philip M. Bailey (November 20, 2015) Study: Cops less
rent challenges, p. 3. Washington, DC: United States motivated post-Ferguson, USA Today, p. 12A.
Institute of Peace. Accessible at www.usip.org. Accessed 20. Robert Balko (Fall, 2013) The Militarization of America’s
on June 14, 2015. Police Forces Cato’s Letter-a Quarterly Message on Liberty.
11. At www.policeone.com. Accessed on June 11, 2015. Washington, DC: Cato Institute.
12. David Bayley and Robert Perito (2011) Special report: 21. Robert Balko (Fall, 2013) The Militarization of America’s
Police corruption–what past scandals teach about cur- Police Forces Cato’s Letter: A Quarterly Message on Liberty,
rent challenges, p. 4. Washington, DC: United States pp. 2–3. Washington, DC: Cato Institute.
Institute of Peace. Accessible at www.usip.org. Accessed 22. Florida Background Investigators Association website at
on June 14, 2015. http://www.flbia.org/archives/98. Accessed on October
13. David Griffith (March, 2015) Editorial: Fixing police 1, 2015.
training, Police Magazine, p. 4. 23. Raymond Franklin (2005) Survey of Post Agencies
14. Allyson Collins (1998) Shielded from Justice: Police Brutality Regarding Certification Practices, NCJRS 213048.
and Accountability in the United States. New York: Human Rockville, MD: Bureau of Justice Assistance
Rights Watch. Clearinghouse.
chapter two

Historical analysis of police misconduct

Learning objectives Development of police departments
After studying this chapter, the reader should under- Most researchers trace the origin of the modern police
stand the following concepts and issues: department to Alfred the Great of England during
the ninth century. It started with the development of
• How history has influenced the conduct of present the shire-reeve system, which was the forerunner for the
American policing office of sheriff. In the thirteenth century, night watch
• The development of modern policing systems developed in urban England to protect the
• The history of police corruption streets during hours of darkness.
• The history of police brutality From the thirteenth century until the seventeenth
century, there was minimal development in the concept
of policing. During that period, it was presumed that
each citizen had a duty to protect the laws of England.
Introduction Often, this meant that citizens with resources used the
Police misconduct is not a recent phenomenon. There law to enhance their own opportunities for enrichment.
have been reports of police misconduct from the begin- By the seventeenth century, the chief law enforce-
ning of the modern police force. Many of the early ment officials in the urban areas of England were the
reports were of police brutality especially against strik- magistrates, who presided over the courts, ordered
ing workers. The reports include the Great Railroad arrests, and investigated suspected criminal activities.
Strike of 1877, the Pullman strike of 1894, the Lawrence In rural areas, the shire-reeves were responsible for
textile strike of 1912, the Ludlow massacre of 1914, the maintaining law and order among the citizens.
steel strike of 1919, and the Hanapepe massacre of 1924. Robberies flourished in England during the
In each of these situations, the police brutally beat strik- sixteenth and seventeenth centuries. In 1693, the English
ing laborers. While racial profiling has been an issue Parliament passed an act providing for rewards for the
with U.S. police departments, it is interesting to note capture and conviction of any robbers. As a result of this
that the first formal police units in America were the act, the thief-takers emerged. The thief-takers were pri-
slave patrols. vate individuals who were paid by the government on
According to Robin Kelly, the early policing of a piecework basis. They had no official status, and only
Black, Latino, and Native American communities in the authority of private citizens to arrest. Many of the
the United States was initially in the form of occupa- thief-takers were criminals themselves. As the number
tion, surveillance, and pacification. Even before formal of thief-takers grew, a class of professional thief-takers
police departments were established, the people in developed. In many cases, they would encourage indi-
power relied on legal and extralegal violence and ter- viduals to commit crimes and then arrest them for the
rorism to pacify, discipline, and exploit minority com- rewards.
munities.1 Kelly points out that a 1705 Virginia statute By the 1830s, there were over 3000 uniformed con-
allowed slave owners to burn, whip, dismember, or stables in the City of London. Henry Fielding, who wrote
mutilate slaves as punishment for crimes. Kelly also Tom Jones, was appointed as a magistrate in Westminster.
notes that a 1723 Maryland law permitted the cutting Because his office was located on Bow Street, when he
off the ears of Africans—slave or free—who struck a formed a small group of unofficial investigators they
white person. were known as the Bow Street Runners. The runners
Kelly contended that lynching was an essential part were not salaried and received their money under the
in understanding the history and character of police standard reward system. Later, the government pro-
violence in America because it revealed the sexual and vided financial support for the runners.
gender dimensions of maintaining the color line and When Henry Fielding stepped down because of
disciplining minorities (Boxes 2.1 and 2.2). poor health, his brother John Fielding was appointed

19
20 Police Misconduct: A Global Perspective

BOX 2.1 CORRUPTION AND PUBLIC RELIEF

In 1932, it was widely accepted in the United States that the administration of public relief was politically
corrupt. Opponents of public relief often complained that the use of public relief was primarily for politi-
cal purposes. By 1940, the criticisms of corruption and political manipulation had diminished considerably.2
Wallis, Fishback, and Kantor explore the question of what had changed, and how the country entered the
depression with a public welfare system that was riddled with political manipulation and emerged with one
that was not. According to the authors, the president, Franklin Roosevelt, and other members of the executive
branch gained little or nothing from the kind of local corruption involved in public relief. But they stood to
incur enormous losses if the New Deal relief program was perceived as politically manipulative and corrupt
by the voting public. Roosevelt and the Democrats brought relief to millions of families every month, and the
gratitude of relief recipients was Roosevelt’s political payoff.
Is this an approach our police departments should take?

BOX 2.2 DO WE PROMOTE POLICE SECRECY?

In September 2015, former tennis star James Blake was mistakenly arrested in New York City. Blake claimed
he was brutalized during the arrest. When his attorney attempted to obtain the misconduct history of the
arresting officer, he was denied access to the records.
A uniquely restrictive New York state law was used to deny access to the disciplinary history of the offi-
cer. Apparently, this law prevents disclosure of police officer discipline records, even if the officer is accused
of violent crimes.
An editorial in the New York Times criticized this law, contending that the public had the right to be
kept informed of police misconduct cases, especially at a time of heightened concern over police brutality.
According to the editorial, the city’s Civilian Complaint Review Board substantiated excessive force charges
against the officer and released its findings to Blake’s lawyer but barred him from making them available to
the public.
The state law on officers’ histories is the only one of its kind in the nation. It was enacted in 1976 to prevent
criminal defense lawyers from using freedom-of-information laws to gain access to personnel records for
information to use against officers in trials.
The law states that an officer’s personnel record cannot be publicly released or cited in court without a
judge’s approval. But according to the editorial, municipalities and courts have since broadened the definition
of “personnel record” to shield almost any information. As a result, police officers, who have more authority
over the public than any other public sector employees, are the least accountable.3

as his successor. Since John was blind, he was often When the English settlers arrived in America they
referred to as the Blind Beak. John received government brought with them the English law enforcement struc-
funds to establish an eight-man horse patrol to patrol ture. At the time, America was mostly rural and was
the streets of London at night. After less than a year, the policed by officers in the offices of constable and sheriff.
patrol was disbanded. Originally, crown-appointed governors appointed the
In 1829, Sir Robert Peel—who was then serving constables and sheriffs. After the American Revolution,
as England’s home secretary—convinced the English they were selected by popular vote. By 1936, Boston had
Parliament to pass an act for improving the police ser- established a night watchman system, and New York
vice in and near the metropolitan area. This act estab- and Philadelphia established similar night watch sys-
lished the first permanent police force for London. tems soon thereafter.
The police force comprised over 1000 men and was The first modern police force in the United States
established along military lines. Officers were required was the slave patrols, which were established in the
to wear distinctive uniforms so that citizens could rec- southern states. The slave patrols were intended to
ognize them and report any misconduct by the police. guard against slave revolts and to capture runaway
The police were not well received by the English citi- slaves. For example, the Charleston, South Carolina,
zens. Open battles often ensued between police officers, slave patrol had over 100 officers and was the largest
who were known as Bobbies, and the citizenry. police force in America at the time.
Chapter two: Historical analysis of police misconduct 21

As the cities in America developed as a result the police departments were based on politics rather
of the Industrial Revolution, constables were unable than ability (Box 2.3).
to handle the increasing social disorder caused by In Chicago in the 1850s, police officers were expected
migration to the urban areas so police departments to give kickbacks out of their salaries to the control-
were established in the large cities. For example, New ling political party. In 1880, as a result of city elections
York City was alleged at the time to be the most crime- in Cincinnati, a new political party gained control of
ridden city in the world. The cities of Philadelphia, the city administration and 219 of the 295 police officers
Baltimore, and Cincinnati were not far behind. Gangs were fired. At the next election, a different political party
of rowdy young criminals threatened to destroy the assumed power and 238 of the 289 line officers were fired.
American reputation of respect for law. Against their In the late nineteenth century, in an effort to elimi-
misbehaviors and riots, the early police forces were nate politics from the police forces, many cities estab-
often helpless. lished police administrative boards. These boards
The first organized metropolitan American police exercised control over the police department and were
force was established in Philadelphia in 1833. The city given responsibility for managing police affairs and
government established a 24-man police force for day appointing police administrators. For the most part, the
work and a 120-man night watchman force. The force boards were unsuccessful in eliminating political influ-
was disbanded less than 2 years later. In 1838, Boston ences. One probable reason that the police boards were
created a day police force to supplement its night watch- not successful was that they were not directly account-
man system. able to the citizens they served.4
In 1844, the state of New York passed legislation In several states, state legislators assumed control
establishing a unified day and night police force for over the police forces by requiring police administra-
New York City and abolished its night watch system. In tors to be appointed by the state. The concept of state
1854, Boston consolidated its night watch with the day control was not uniformly applied and was directed
watch. By 1870, all of the large cities in America had full- mainly toward the larger cities. Friction often devel-
time, uniformed, unified police forces. oped between the state-appointed administrators and
The police forces were generally under the con- the local citizens.
trol of a chief of police who was appointed by the By the 1900s, most cities had regained control of
mayor. The mission of the early police departments their police forces. One city, St. Louis, Missouri, did not
was merely to keep the city clean and to keep every- regain control of its police department until 2013. In
thing quiet. Officer salaries were low and, to meet August 2013, the Missouri state board of police commis-
staffing requirements, personnel standards were sioners held a ceremonial meeting at the St. Louis police
compromised. The result was that many unqualified headquarters to end the 152 years of state oversight of
individuals were appointed as police officers. Most the city’s police department. The state had gained con-
appointments were friends of either the mayor or the trol of the police department in 1861 to prevent Union
chief. For the most part, the appointments were based sympathizers from influencing the police before the
on political motives. In addition, promotions within start of the Civil War.5

BOX 2.3 FORMER HEAD OF DALLAS CRIME STOPPERS SENTENCED

ON CONSPIRACY AND TAX CONVICTIONS
On December 3, 2012, in Dallas, Texas, Theadora Ross, a former senior corporal with the Dallas police depart-
ment, was sentenced to 46 months in prison and ordered to pay $274,304 in restitution. Ross pleaded guilty
in August 2012 to one count of conspiracy to commit wire fraud and one count of willfully attempting to
evade assessment of income taxes. According to court documents, Ross worked at the Dallas Crime Stoppers
office from 2003 to May 2010, and was the head of that office from March 2006 to May 2010. The Dallas Crime
Stoppers office is funded by the North Texas Crime Commission (NTCC). From February 2005 to May 2010,
Ross and codefendant Malva R. Delley conspired to defraud the NTCC. Ross determined which tips would
be listed and presented for cash reward approval. These lists contained both bogus tips that Ross created and
legitimate cash reward tip numbers. Ross provided the bogus tip information to Delley, who then presented
that information to the bank and collected cash rewards. Delley divided the cash with Ross. Ross admitted
that, for the calendar years 2006, 2007, 2008, and 2009, she filed false federal income tax returns by omitting to
declare nearly $175,000, the proceeds of her illegal scheme. Delley pleaded guilty in May 2011 and was await-
ing sentencing at the time of writing.
22 Police Misconduct: A Global Perspective

Reform movement Approximately 70% of the Boston officers went on strike.

As a result of the strike, rioting and looting broke out in
Starting in the latter part of the 1800s, police forces the city. Governor Calvin Coolidge mobilized the state
grew in size and expanded their functions and police to handle the rioting and looting. The striking
attempts at reform, including the concept of merit officers were fired and replaced with new employees.
employment and civil service. In 1895, Theodore As a result of the firing of striking officers, Governor
Roosevelt, who was a member of the New York City Coolidge became a hero and was later elected president.
board of police commissioners, attempted to raise In 1883, the federal government passed the first
recruitment standards and discipline among New federal civil service act, the Pendleton Act. Under this
York City police officers. Roosevelt’s efforts were gen- act, which covered only federal employees, applicants
erally unsuccessful because the Tammany Hall politi- were tested and appointed based on merit rather than
cal machine had returned to power in New York City for political reasons. Promotions were also required to
in 1897. be based on merit. Many local governments established
The police reform movement started in 1900 and similar acts in order to decrease the political influence
lasted until the 1960s. The reform movement resulted on law enforcement (Figure 2.1) (Box 2.4).
in an increased military-like structure of police depart-
ments and specialized police units such as traffic, juve-
nile, and vice. Starting from about 1900, there were
several attempts to reform police departments by civic-
History of police corruption
minded reformers. For the most part, their efforts failed. David Bayley and Robert Perito noted that, at the tactical
Police officer salaries remained low and promotions level, police corruption is a contested phrase with nar-
continued to be based on the politics and personal pref- row and broad meanings. Narrowly defined, police cor-
erences of the administrators. ruption refers to police personnel who use their position
In 1919, Boston police officers affiliated with the and authority for personal rather than public benefit.
American Federation of Labor. In September of that year, More broadly, police corruption refers to any viola-
the officers voted to strike for better working conditions. tion of rules, even when there is no personal gain, as in

Figure 2.1 Young protestor being carried to a police patrol wagon during a demonstration in the 1960s in Brooklyn. (Photo
courtesy of Library of Congress Prints and Photographs Division.)
Chapter two: Historical analysis of police misconduct 23

BOX 2.4 HARD TRUTHS: LAW ENFORCEMENT AND RACE

With the death of Michael Brown in Ferguson, the death of Eric Garner in Staten Island, the ongoing protests
throughout the country, and the assassinations of NYPD Officers Wenjian Liu and Rafael Ramos, we are at a
crossroads. As a society, we can choose to live our everyday lives, raising our families and going to work, hop-
ing that someone, somewhere, will do something to ease the tension—to smooth over the conflict. We can roll
up our car windows, turn up the radio, and drive around these problems, or we can choose to have an open
and honest discussion about what our relationship is today—what it should be, what it could be, and what it
needs to be—if we took more time to better understand one another.
I worry that this incredibly important and incredibly difficult conversation about race and policing has
become focused entirely on the nature and character of law enforcement officers, when it should also be about
something much harder to discuss. Debating the nature of policing is very important, but I worry that it has
become an excuse, at times, to avoid doing something harder.
Let me start by sharing some of my own hard truths:
First, all of us in law enforcement must be honest enough to acknowledge that much of our history is not
pretty. At many points in American history, law enforcement enforced the status quo, a status quo that was
often brutally unfair to disfavored groups. It was unfair to the Healy siblings and to countless others like
them. It was unfair to too many people.
I am descended from Irish immigrants. A century ago, the Irish knew well how American society—and
law enforcement—viewed them: as drunks, ruffians, and criminals. Law enforcement’s biased view of the
Irish lives on in the nickname we still use for the vehicles we use to transport groups of prisoners. It is, after
all, the “paddy wagon.”
The Irish had tough times, but little compares with the experience on our soil of black Americans. That
experience should be part of every American’s consciousness, and law enforcement’s role in that experience—
including in recent times—must be remembered. It is our cultural inheritance.
There is a reason that I require all new agents and analysts to study the Federal Bureau of Investigation’s
(FBI) interaction with Dr. Martin Luther King, Jr., and to visit his memorial in Washington as part of their
training. And there is a reason I keep on my desk a copy of Attorney General Robert Kennedy’s approval of
J. Edgar Hoover’s request to wiretap Dr. King. It is a single page. The entire application is five sentences long,
it is without fact or substance, and is predicated on the naked assertion that there is “communist influence
in the racial situation.” The reason I do those things is to ensure that we remember our mistakes and that we
learn from them.
One reason we cannot forget our law enforcement legacy is that the people we serve and protect cannot
forget it, either. So we must talk about our history. It is a hard truth that lives on.
A second hard truth: Much research points to the widespread existence of unconscious bias. Many people
in our white-majority culture have unconscious racial biases and react differently to a white face than a black
face. In fact, we all, white and black, carry various biases around with us. I am reminded of the song from the
Broadway hit, Avenue Q: “Everyone’s a Little Bit Racist.” Part of it goes like this:

Look around and you will find

No one’s really color blind.
Maybe it’s a fact
We all should face
Everyone makes judgments
Based on race.

You should be grateful I did not try to sing that.

But if we can’t help our latent biases, we can help our behavior in response to those instinctive reac-
tions, which is why we work to design systems and processes that overcome that very human part of us all.
Although the research may be unsettling, it is what we do next that matters most.
But racial bias isn’t epidemic in law enforcement any more than it is epidemic in academia or the arts.
In fact, I believe law enforcement overwhelmingly attracts people who want to do good for a living—people
who risk their lives because they want to help other people. They don’t sign up to be cops in New York or
24 Police Misconduct: A Global Perspective

Chicago or Los Angeles to help white people or black people or Hispanic people or Asian people. They sign
up because they want to help all people. And they do some of the hardest, most dangerous policing to protect
people of color.
But that leads me to my third hard truth: something happens to people in law enforcement. Many of us
develop different flavors of cynicism that we work hard to resist because they can be lazy mental shortcuts.
For example, criminal suspects routinely lie about their guilt, and nearly everybody we charge is guilty.
That makes it easy for some folks in law enforcement to assume that everybody is lying and that no suspect,
regardless of their race, could be innocent. Easy, but wrong.
Likewise, police officers on patrol in our nation’s cities often work in environments where a hugely dis-
proportionate percentage of street crime is committed by young men of color. Something happens to people of
good will working in that environment. After years of police work, officers often can’t help but be influenced
by the cynicism they feel.
A mental shortcut becomes almost irresistible and maybe even rational by some lights. The two
young black men on one side of the street look like so many others that the officer has locked up. Two
white men on the other side of the street—even in the same clothes—do not. The officer does not make
the same association about the two white guys, whether that officer is white or black. And that drives
different behavior. The officer turns toward one side of the street and not the other. We need to come to
grips with the fact that this behavior complicates the relationship between the police and the communi-
ties they serve.
So why has that officer—like his colleagues—locked up so many young men of color? Why does he have
that life-shaping experience? Is it because he is a racist? Why are so many black men in jail? Is it because cops,
prosecutors, judges, and juries are racist? Because they are turning a blind eye to white robbers and drug
dealers?
The answer is a fourth hard truth: I don’t think so. If it were so, that would be easier to address. We would
just need to change the way we hire, train, and measure law enforcement and that would substantially fix it.
We would then go get those white criminals we have been ignoring. But the truth is significantly harder than
that.
The truth is that what really needs fixing is something only a few, like President Obama, are willing
to speak about, perhaps because it is so daunting a task. Through the “My Brother’s Keeper” initiative, the
President is addressing the disproportionate challenges faced by young men of color. For instance, data shows
that the percentage of young men not working or not enrolled in school is nearly twice as high for blacks as
it is for whites. This initiative, and others like it, is about doing the hard work to grow drug-resistant and
violence-resistant kids, especially in communities of color, so that they never become part of that officer’s life
experience.
So many young men of color become part of that officer’s life experience because so many minority fami-
lies and communities are struggling, so many boys and young men grow up in environments lacking role
models, adequate education, and decent employment—they lack all sorts of opportunities that most of us take
for granted. A tragedy of American life—one that most citizens are able to drive around because it doesn’t
touch them—is that young people in “those neighborhoods” too often inherit a legacy of crime and prison.
And with that inheritance, they become part of a police officer’s life, and shape the way that officer—whether
white or black—sees the world. Changing that legacy is a challenge so enormous and so complicated that it is,
unfortunately, easier to talk only about the cops. And that’s not fair.
Let me be transparent about my affection for cops. When you dial 911, whether you are white or black, the
cops come, and they come quickly, and they come quickly whether they are white or black. That’s what cops
do, in addition to all of the other hard and difficult and dangerous and frightening things that they do. They
respond to homes in the middle of the night where a drunken father, wielding a gun, is threatening his wife
and children. They pound up the back stairs of an apartment building, not knowing whether the guys behind
the door they are about to enter are armed, or high, or both.
I come from a law enforcement family. My grandfather, William J. Comey, was a police officer. Pop Comey
is one of my heroes. I have a picture of him on my wall in my office at the FBI, reminding me of the legacy I’ve
inherited and that I must honor.
He was the child of immigrants. When he was in the sixth grade, his father was killed in an industrial
accident in New York. Because he was the oldest, he had to drop out of school so that he could go to work
Chapter two: Historical analysis of police misconduct 25

to support his mom and younger siblings. He could never afford to return to school, but when he was old
enough, he joined the Yonkers, New York police department (NYPD).
Over the next 40 years, he rose to lead that department. Pop was the tall, strong, silent type, quiet and
dignified, and passionate about the rule of law. Back during prohibition, he heard that bootleggers were run-
ning beer through fire hoses between Yonkers and the Bronx.
Now, Pop enjoyed a good beer every now and again, but he ordered his men to cut those hoses with fire
axes. Pop had to have a protective detail, because certain people were angry and shocked that someone in
law enforcement would do that. But that’s what we want as citizens—that’s what we expect. And so I keep
that picture of Pop on my office wall to remind me of his integrity, and his pride in the integrity of his work.
Law enforcement ranks are filled with people like my grandfather. But, to be clear, although I am from
a law enforcement family, and have spent much of my career in law enforcement, I’m not looking to let law
enforcement off the hook. Those of us in law enforcement must redouble our efforts to resist bias and preju-
dice. We must better understand the people we serve and protect—by trying to know, deep in our gut, what
it feels like to be a law-abiding young black man walking on the street and encountering law enforcement.
We must understand how that young man may see us. We must resist the lazy shortcuts of cynicism and
approach him with respect and decency.
We must work—in the words of New York City Police Commissioner Bill Bratton—to really see each
other. Perhaps the reason we struggle as a nation is because we’ve come to see only what we represent, at face
value, instead of who we are. We simply must see the people we serve.
But the “seeing” needs to flow in both directions. Citizens also need to really see the men and women of
law enforcement. They need to see what police see through the windshields of their squad cars, or as they
walk down the street. They need to see the risks and dangers law enforcement officers encounter on a typical
late-night shift. They need to understand the difficult and frightening work they do to keep us safe. They need
to give them the space and respect to do their work, well and properly.
If they take the time to do that, what they will see are officers who are human, who are overwhelmingly
doing the right thing for the right reasons, and who are too often operating in communities—and facing chal-
lenges—most of us choose to drive around.
One of the hardest things I do as FBI Director is call the chiefs and sheriffs in departments around the
nation when officers have been killed in the line of duty. I call to express my sorrow and offer the FBI’s help.
Officers like Wenjian Liu and Rafael Ramos, two of NYPD’s finest who were gunned down by a madman who
thought his ambush would avenge the deaths of Michael Brown and Eric Garner. I make far too many calls.
And, there are far too many names of fallen officers on the National Law Enforcement Officers Memorial and
far too many names etched there each year.
Officers Liu and Ramos swore the same oath all in law enforcement do, and they answered the call to serve
the people, all people. Like all good police officers, they moved toward danger, without regard for the politics
or passions or race of those who needed their help—knowing the risks inherent in their work. They were
minority police officers, killed while standing watch in a minority neighborhood—Bedford–Stuyvesant—one
they and their fellow officers had rescued from the grip of violent crime.
Twenty years ago, Bed-Stuy was shorthand for a kind of chaos and disorder in which good people had no
freedom to walk, shop, play, or just sit on the front steps and talk. It was too dangerous. But today, no more,
thanks to the work of those who chose lives of service and danger to help others.
But despite this selfless service—of these two officers and countless others like them across the country—
in some American communities, people view the police not as allies, but as antagonists, and think of them not
with respect or gratitude, but with suspicion and distrust.
We simply must find ways to see each other more clearly. And part of that has to involve collecting and
sharing better information about encounters between police and citizens, especially violent encounters.
Not long after riots broke out in Ferguson late last summer, I asked my staff to tell me how many people
shot by police were African-American in this country. I wanted to see trends. I wanted to see information.
They couldn’t give it to me, and it wasn’t their fault. Demographic data regarding officer-involved shootings
is not consistently reported to us through our Uniform Crime Reporting Program. Because reporting is vol-
untary, our data is incomplete and therefore, in the aggregate, unreliable.
I recently listened to a thoughtful, big city police chief express his frustration with that lack of reliable
data. He said he didn’t know whether the Ferguson police shot one person a week, one a year, or one a century,
26 Police Misconduct: A Global Perspective

and that in the absence of good data, “all we get are ideological thunderbolts, when what we need are ideo-
logical agnostics who use information to try to solve problems.” He’s right.
The first step to understanding what is really going on in our communities and in our country is to
gather more and better data related to those we arrest, those we confront for breaking the law and jeopardiz-
ing public safety, and those who confront us. “Data” seems a dry and boring word but, without it, we cannot
understand our world and make it better.
How can we address concerns about “use of force,” how can we address concerns about officer-involved
shootings if we do not have a reliable grasp on the demographics and circumstances of those incidents? We
simply must improve the way we collect and analyze data to see the true nature of what’s happening in all of
our communities.
The FBI tracks and publishes the number of “justifiable homicides” reported by police departments. But,
again, reporting by police departments is voluntary and not all departments participate. That means we can-
not fully track the number of incidents in which force is used by police, or against police, including nonfatal
encounters, which are not reported at all.
Without complete and accurate data, we are left with “ideological thunderbolts.” And that helps spark
unrest and distrust and does not help us get better. Because we must get better, I intend for the FBI to be a
leader in urging departments around this country to give us the facts we need for an informed discussion, the
facts all of us need, to help us make sound policy and sound decisions with that information.
***
America isn’t easy. America takes work. Today, February 12, is Abraham Lincoln’s birthday. He spoke at
Gettysburg about a “new birth of freedom” because we spent the first four score and seven years of our his-
tory with fellow Americans held as slaves—President Healy, his siblings, and his mother among them. We
have spent the 150 years since Lincoln spoke making great progress, but along the way treating a whole lot of
people of color poorly. And law enforcement was often part of that poor treatment. That’s our inheritance as
law enforcement and it is not all in the distant past.
We must account for that inheritance. And we—especially those of us who enjoy the privilege that comes
with being the majority—must confront the biases that are inescapable parts of the human condition. We
must speak the truth about our shortcomings as law enforcement, and fight to be better. But as a country, we
must also speak the truth to ourselves. Law enforcement is not the root cause of problems in our hardest hit
neighborhoods. Police officers—people of enormous courage and integrity, in the main—are in those neigh-
borhoods, risking their lives, to protect folks from offenders who are the product of problems that will not be
solved by body cameras.
We simply must speak to each other honestly about all these hard truths.
In the words of Dr. King, “We must learn to live together as brothers or we will all perish together as
fools.”
We all have work to do—hard work, challenging work—and it will take time. We all need to talk and we
all need to listen, not just about easy things, but about hard things, too. Relationships are hard. Relationships
require work. So let’s begin that work. It is time to start seeing one another for who and what we really are.
Peace, security, and understanding are worth the effort. Thank you for listening to me today.
Source: Excerpts from the speech of FBI Director James B. Corney on February 12, 2015, at Georgetown
University in Washington, DC.

perjury, physical abuse of prisoners, sexual misconduct, activities conducted or supported by members of the
robbery, and racial profiling.6 political elite. This environment of accepted corruption
Police corruption in American police departments resulted in practices that monetarily benefited individ-
became widespread shortly after the formation of the ual officers and their departments. Officers were given
first police departments in the mid-1800s. When the bribes to ignore criminal activity, such as prostitution.
departments were founded, the municipal govern- In addition, police officers expected to receive money
ment and agencies were run by political parties. To for not reporting criminals such as pickpockets and con
be appointed as a police officer or public servant, you men.
had to agree to follow the wishes of the political par- George Kelling and Mark Moore noted that early
ties. Those wishes frequently required protecting illicit American police were authorized by local municipalities.
Chapter two: Historical analysis of police misconduct 27

Unlike their English counterparts, American police American policing. It was the first systematic investiga-
departments lacked the powerful, central authority of tion of police misconduct.
the crown to establish a legitimate, unifying mandate The report was one of the 14 reports published
for their enterprise. American police derived both their by the National Commission on Law Observance and
authorization and resources from local political leaders, Enforcement, known popularly as the Wickersham
often ward politicians. They were, of course, guided by Commission. The commission conducted the first
the law as to what tasks to undertake and what powers national study of the administration of justice in the
to utilize. But their link to neighborhoods and local poli- United States. The commission was appointed by
ticians was so tight that they became adjuncts to local President Herbert Hoover on May 20, 1929, and pub-
political machines. The relationship was often recipro- lished its reports in June 1930. Chaired by the former
cal: political machines recruited and maintained police U.S. Attorney General George W. Wickersham, other
in office and on the beat, while police helped ward polit- members of the 11-member commission included
ical leaders maintain their political offices by encourag- Roscoe Pound, the dean of Harvard Law School, and
ing citizens to vote for certain candidates, discouraging Newton Baker, former secretary of war and a leading
them from voting for others, and, at times, assisting in urban reformer. The commission was appointed as the
rigging elections.6 result of
Efforts to clean up the police started at the end of the
nineteenth century. The Progressives, upper-middle- • The need to find a solution for problems caused by
class educated citizens, opposed the political control the enforcement of prohibition
of police agencies. They sought to lessen this political • An expression of President Hoover’s technocrat
control by the establishment of police commissions, the approach to governing
use of civil service exams, and legislative reforms. As • The outgrowth of the crime commission move-
the result of the progressive movement, widespread ment that started in the 1920s
police corruption declined, but it still remained a large
problem. Many researchers of the Wickersham Commission
The political era of policing was so named because have concluded that the commission’s report was
of the close ties between police and politics. This era overtaken by events. First, the United States was, by
began with the development of police departments 1931, in a great depression and the government was
during the 1840s, continued through the Progressive preoccupied with the problem of economic recovery.
period, and ended during the early 1900s. The reform Second, prohibition was repealed in 1933. However, the
era developed in reaction to the political influence of the report did have a significant long-term impact on the
police departments. It started in the 1900s but only took understanding of crime and the functions of the crimi-
hold during the 1930s. The era thrived during the 1950s nal justice system.
and 1960s but began to erode during the late 1970s.7 The report concluded that it was a widespread prac-
tice for police to use physical brutality, or other forms of
cruelty, to obtain involuntary confessions or admissions.
Prohibition
Specific tactics included protracted questioning, threats
Prohibition in the 1920s greatly increased the potential and methods of intimidation, physical brutality, illegal
for corruption. Massive amounts of money were being detention, and refusal to allow access of counsel to sus-
made by bootleggers who in turn paid off police offi- pects. The report declared unequivocally that the third-
cers to allow their illegal activities to continue. The degree methods used by police were secret and illegal.8
Wickersham Commission, organized by President The report also castigated the police for their general
Hoover in 1929, studied the problems associated with failure to detect and arrest criminals who had commit-
prohibition, found that it had caused a number of social ted murders and robberies. It concluded that there was
and political problems, and recognized that it was unen- contempt among average citizens regarding corruption
forceable and carried a great potential for police cor- in the American police departments.
ruption. The Wickersham Commission also provided
an analysis of police misconduct, which led to systems
Kefauver hearings on organized crime
being formed to protect against such misconduct.
The Kefauver Committee hearings on organized
crime were the direct result of a petition in 1949 by the
Report on the Wickersham Commission American Municipal Association, which represents
The production of the 1931 Report on Lawlessness in more than 10,000 cities nationwide. The hearings were
Law Enforcement by the Wickersham Commission chaired by the then first-term senator Estes Kefauver of
was one of the most important events in the history of Tennessee.
28 Police Misconduct: A Global Perspective

Figure 2.2 Illustration shows a police officer labeled “Platt” receiving “hush money” at the door of an “Insurance Co.” from
Richard A. McCurdy. Standing in the window of the building are James H. Hyde, Francis Hendricks, and John A. McCall,
among others; another police officer labeled “Bliss” stands nearby holding a thick wad of “hush money.” An insert labeled
“Tenderloin Dive” shows police officers accepting a bribe. The drawing was created by Undo J. Keppler (artist, 1872–1956). This
drawing was the centerfold of the December 13, 1905, issue of Pluck Magazine. (Photo courtesy of Library of Congress Prints
and Photographs Division.)

The Kefauver Committee hearings remain the most criminal activities. In addition, the report concluded
widely viewed congressional investigation to date. An that gangsters were using legitimate business interests
estimated 30 million Americans tuned in to watch the to curry favor with local law enforcement agencies.
live proceedings in March 1951. The television broad- These dramatic hearings also made certain that televi-
casts educated a broad audience about the complicated sion would play a large role in future Senate investiga-
issues of interstate crime. “Television and radio make tions (Figure 2.2).
these events more vivid and alive to the general public
than newspapers,” explained one New York teacher. “I
do not think any of you can possibly realize how much
History of police brutality
good it has done to have these hearings televised,” American history is replete with reports of police brutal-
wrote Mrs. Carl Johnson. “It has made millions of us ity, especially against striking workers. Apparently, the
aware of conditions that we would never have fully real- first use of the term police brutality by the media was in
ized, even if we had read the newspaper accounts.”9 the New York Times in 1893. In an article printed on June
The legislative results of the hearing were not 23, 1893, the Times reported that police officer Michael
significant. More important were the nonlegislative McManus of the East 22nd Street station was the lat-
results of the investigation. By bringing public opin- est police officer to get himself in trouble. According to
ion to bear on the problems of interstate crime, the the article, when one Michael Maher was arrested by
investigation helped local and state law enforcement Officer McManus for assault, Maher’s face was almost
and elected officials to aggressively pursue criminal fully concealed by several bandages. A witness stated
syndicates. The hearings clearly demonstrated that that he heard the officer state “I will lock you up if I have
some elected officials had facilitated and profited from to take you to the station in pieces.” The article noted
Chapter two: Historical analysis of police misconduct 29

that “One of the more recent cases of police brutality the striker on behalf of business interests and urged
came up in the Court of Special Sessions yesterday workers to seek justice.
morning.”10 The article failed to report whether any On May 4, a crowd of about 1500 people gathered
action was taken against Officer McManus. A search of in Haymarket Square. A number of speakers protested
the New York Times archives revealed that, in May 1901, a what they regarded as brutality by the police. At first,
police officer named Michael McManus was suspended the meeting was peaceful, but turned to violence when
for 3 months without pay for failure to provide support the police tried to disperse the crowd. As fights broke
for his children. out, a bomb exploded in the crowd. Then, the police
As noted earlier, there are numerous reports of drew their weapons and began to fire into the panicking
police brutality against striking workers and minority crowd. Seven policemen and four civilians were killed,
citizens. Included in the following subsections are a few most likely from the bullets fired in the chaos. More
of those instances. than 100 people were injured.
The rioting was blamed on the labor movement.
A number of arrests were made and eight people were
Great Railroad Strike of 1877
charged. All eight were tried and convicted. It was never
The Great Railroad Strike of 1877, also known as the determined who threw the bomb. Seven men were sen-
Great Upheaval, started in Martinsburg, West Virginia, tenced to death, four of whom were eventually hung.
on July 14 and continued for about 45 days. The strike There were serious questions about the fairness of the
may be described as spontaneous outbreaks of violence trial and the reliability of the evidence. One of the eight
against the railroads in numerous cities. Unions were killed himself in prison. In 1892, with the election of a
not involved. At the time, outside of agriculture, rail- new governor in Illinois, two of the prisoners had their
road companies were the largest employer of workers. sentences commuted to life in prison. The governor
The violence started in response to an announcement was criticized for commuting their sentences and was
by the Baltimore and Ohio Railroad Company that they labeled a friend of anarchists. The governor was never
were cutting the wages of employees for the third time elected to another office.12,13
that year. The strike spread to Maryland, Pennsylvania,
Illinois, and Missouri. It started to lose momentum
Pullman strike of 1894
when President Hayes sent federal troops from city to
city to suppress the strikers. The Pullman strike of 1894 is considered a milestone
The strikers were subjected to blood-soaked con- in the history of labor unions. It was a widespread
frontations with the police and troops. In Chicago, the strike that was put down by federal troops. George
mayor requested help from 5000 vigilantes to restore Pullman originated the idea of making railcars with
order. In a confrontation with the police and the strikers sleeping accommodation, and owned a company
in Chicago on July 25, approximately 20 strikers—but that made these passenger railcars. His cars became
none of the law enforcement officers or troops—were popular with the railroad companies. As his company
killed. grew, he built a town in the 1880s to house his work-
As the result of the strike, many states enacted con- ers. The town, Pullman, was located on the outskirts
spiracy statutes to combat similar strikes by organized of Chicago.
workers. While the unions were not involved in the After the economic downturn in 1893, the country
strike, they became better organized and more compe- suffered a severe financial depression. To offset the loss
tent as a direct result of it. The business leaders took a of sales from his cars, Pullman’s company cut wages by
more rigid stand against labor unions.11 one-third. Many of the workers were members of the
American Railway Union, which at the time was the
largest union in America. The union’s national leaders
Haymarket Square riot decided to have the workers refuse to work on any train
In 1886, workers striked at the McCormick Harvesting that had a Pullman car. About 260,000 workers joined in
Machine Company in Chicago, Illinois. The workers the boycott.
demanded an 8-h workday instead of a 60-h work week. The U.S. attorney general was determined to crush
The company then locked out the workers. On May 1, the strike. On July 2, 1894, the federal government got an
the workers protested at the May Day parade in Chicago, injunction in federal court to end the strike. The arrival
resulting in the death of a worker. of the military and the subsequent deaths of workers
Outraged by this act of police violence, the leaders through violence led to further outbreaks of violence.
of the workers printed and distributed fliers calling for During the course of the strike, 30 strikers were killed
a rally at Haymarket Square. Printed in German and and 57 were wounded. Property damage exceeded
English, the fliers claimed that the police had murdered $80 million.
30 Police Misconduct: A Global Perspective

As the result of the strike, Eugene Debs, one of the many European American servicemen resented the
strike leaders, was arrested. Charges against him were sight of these young Latinos wearing clothes that they
later dropped. George Pullman suffered a heart attack considered extravagant and therefore unpatriotic.
and later died, and the Pullman Company was forced to As the violence escalated, thousands of white ser-
divest itself from the town of Pullman since its corpora- vicemen joined the attack, marching down city streets,
tion charter did not allow for ownership of the town. entering bars and movie houses, and assaulting any
U.S. president Grover Cleveland, in an effort to concili- young Latino males that they encountered. Although
ate labor after the strike and appease workers who were the police accompanied the rioting servicemen, they
reacting to the harsh treatment of the military and law had orders not to arrest any of them. The police did,
enforcement, designated the first Monday in September however, arrest more than 500 Latinos on charges rang-
as a federal holiday, Labor Day.14,15 ing from rioting to vagrancy.17

Harlem riot of 1943 Detroit riots of 1967

On August 1, 1943, a black soldier was shot by a police The Detroit Michigan race riots, in the summer of 1967,
officer. As a result of the shooting, widespread fighting, have been described as among the most violent urban
shooting, and looting took place on that Sunday night. revolts of the twentieth century. While they came as
Six persons were killed and over 500 were injured. There an immediate response to police brutality, there were
was an estimated loss of $5 million in property dam- underlying conditions that contributed to the riots
age. Four days after the rioting, approximately 6000 city including segregated housing and schools and rising
policemen, military policemen, and air raid wardens black unemployment.
patrolled the streets of Harlem. In addition, 1500 civil- The riots started on Sunday evening, July 22, 1967,
ian volunteers, most of whom were black, were armed when Detroit police squad officers raided an after-hours
with nightsticks and assigned to beats. Approximately licensed bar on 12th Street in the center of the city’s old-
8000 members of the New York State National Guard est and poorest black neighborhood. A party was in
were ordered on standby. The rioting, shooting, and progress at the bar to celebrate the return of two black
looting lasted for 4 days.16 servicemen from Vietnam. The officers had expected
The 1943 riot broke out after white police officer James that only a few patrons would be inside, but they found
Collins shot and wounded Robert Bandy, a black American and arrested 82 people who were attending the party.
soldier, who had inquired about a woman’s arrest for dis- As they were being transported from the scene, a crowd
orderly conduct and requested that she be released. Bandy of approximately 200 people gathered outside. At about
reportedly hit the officer and was shot in the shoulder 5:20 am, a bottle was thrown through the rear window of
while trying to flee the scene. It was incorrectly reported a police car. Shortly thereafter, additional police officers
that Bandy had been killed. During the riot, approximately were sent to 12th Street to stop the growing violence.
600 arrests were made, mostly of black citizens. By the next morning, 800 state police officers and
Prior to the 1943 riot, another riot had taken place on 8000 national guardsmen had been ordered to the city
March 19, 1935. In that riot, 1 person was killed and 100 by Governor George Romney. They were later aug-
were injured. The rioting started after reports circulated mented by 4700 paratroopers from the 82nd Airborne
that a 16-year-old boy caught stealing a penknife from a Division, ordered in by President Johnson. In the 5 days
local store had been brutally beaten by the police. and nights of violence, 33 blacks and 10 whites were
killed, 1189 citizens were injured, and over 7200 people
were arrested.18
Zoot Suit riots In 1967, the Detroit police department was admin-
The Zoot Suit riots were a series of riots that took place istered directly by the mayor. The mayor’s appointee,
in Los Angeles in 1943, during World War II. Apparently George Edwards, worked for reform. Edwards tried to
the riots started when American sailors and Marines recruit and promote black officers, but refused to estab-
attacked Mexican American youths. The youths were lish a civilian police review board as had been requested
recognized by the zoot suits that they wore. The sail- by many black civic groups. In trying to discipline police
ors and Marines attacked the youths because they per- officers accused of brutality, Edwards turned the police
ceived them to be unpatriotic. At the time of the riots, department’s rank-and-file against him. Many white
the U.S. military had already forced the evacuation of officers considered his policies to be too soft on crime.
more than 120,000 Japanese Americans, most of them President Johnson’s Kerner Commission determined that,
native born, from the West Coast to internment camps. prior to the riot, 45% of the police officers working in pre-
Although Mexican American men were overrepre- dominately black neighborhoods were extremely anti-
sented in the military in proportion to the population, black, and an additional 34% were prejudiced (Box 2.5).19
Chapter two: Historical analysis of police misconduct 31

Future of policing considerations more increasingly complex. This is particu-

larly true of the evolution of policing in this
Excerpts from the testimony of Robert Haas, Cambridge, MA., country.
Chief Police Commissioner before the President’s Task Force Police departments across this country
on 21st Century Policing in America (January 13, 2015). have been expected to evolve and reform its
approaches as to how it responds to its own
As is the case with all forms of sociological communal expectations and demands. In
systems, things as we know them are subject part, the type of policing that we see taking
to change and evolve. As society becomes place, derived from the very same origins has
more complex, those social systems in place taken on a myriad of approaches and individ-
that provide the underpinnings and basis ualistic styles that manifest themselves differ-
of our societal structures will also become ently from one neighboring departments have

COMMENT: WHY A GOOD PERSON MAY COMMIT DEVIANT ACTS AS AN OFFICER?

Comments by Ryan Getty, PhD. California State University, Sacramento

[Ryan Getty, an associate professor at California State University, Sacramento (CSUS) (Figure 2.3), was an
instructor of record and teaching associate at the University of Texas at Dallas, as well as a research fellow and
instructor at the Dallas Police Department’s Caruth police institute. He is a California and Georgia postgradu-
ate. Currently, he is a master peace officer in the State of Texas where he has worked for over 25 years for small
and large police departments in positions ranging from patrol supervisor to chief of police. His last full-time
policing position, before going back to get his PhD, was as an investigator for a district attorney’s office. While
there, he investigated public integrity violations, major crimes, high-tech crimes, and juvenile crimes.]
To quote the movie Forrest Gump, “Life is like a box of chocolates. You never know what you are going to
get.” seems synonymous with wondering what type of police officer a jurisdiction will ultimately end up hav-
ing. One often wonders when current media headlines are rife with officers’ misconduct, “Why would that,
or any officer do that?” This article will examine what we know, have experienced, and attempted to explain
why a perfectly good person may commit deviant acts as an officer.
First, there is no magic answer or solution to fit every scenario as to why police commit deviant acts.
If there were, we would be able to eliminate officers committing these acts. There would be researchers and
consultants as rich as Warren Buffett. Second, it is reasoned that no one goes into policing with the attitude
or belief that she or he wants to or even will commit criminal or deviant acts. In fact, there are many obstacles
for civilians to pass in order to be the select few to become officers. So how is it that these chosen few end up
being in highlight reel of what not to do? In order to understand how this happens, one should look at polic-
ing from a macro, systemic view and from a more personal, micro view. The macro view will explain why
some departments seem to endure lots of scandals over time while the micro view will argue individual cases.
A brief history of policing is in order so that one understands why some departments and their per-
sonnel have perhaps not systemically evolved into the “professional era.” Schmalleger and Worrall propose
that there at least three policing eras.20 The first era is the Political Era and is when police departments were
formed. It is wrought with corruption and scandals mainly because of the officers’ allegiance to the corrupt
politicians who hired them.

Figure 2.3 Professor Ryan Getty.

32 Police Misconduct: A Global Perspective

BOX 2.5 EXCERPTS FROM THE REPORT OF THE NATIONAL ADVISORY

COMMISSION ON CIVIL DISORDERS (KERNER REPORT)
[Please note that the report is written in 1960s language. Where the report refers to black Americans as Negros,
they should be referred to as black Americans. Excerpts of the report are included in this text on police mis-
conduct because a lot of the blame for the riots of 1967 and 1968 can be attributed to police misconduct.]
The summer of 1967 again brought racial disorders to American cities, and with them shock, fear and
bewilderment to the nation. The worst came during a 2-week period in July, first in Newark and then in
Detroit. Each set off a chain reaction in neighboring communities. On July 28, 1967, the President of the United
States established this Commission and directed us to answer three basic questions:

• What happened? Why did it happen? What can be done to prevent it from happening again?
• To respond to these questions, we have undertaken a broad range of studies and investigations. We have
visited the riot cities; we have heard many witnesses; we have sought the counsel of experts across the
country.
• This is our basic conclusion: Our nation is moving toward two societies, one black, and one white—
separate and unequal.*

Reaction to last summer’s disorders has quickened the movement and deepened the division.
Discrimination and segregation have long permeated much of American life; they now threaten the future of
every American. This deepening racial division is not inevitable. The movement apart can be reversed. Choice
is still possible. Our principal task is to define that choice and to press for a national resolution.
To pursue our present course will involve the continuing polarization of the American community and,
ultimately, the destruction of basic democratic values. The alternative is not blind repression or capitulation to
lawlessness. It is the realization of common opportunities for all within a single society. This alternative will
require a commitment to national action—compassionate, massive and sustained, backed by the resources of
the most powerful and the richest nation on this earth. From every American it will require new attitudes,
new understanding, and, above all, new will. The vital needs of the nation must be met; hard choices must be
made, and, if necessary, new taxes enacted.
Violence cannot build a better society. Disruption and disorder nourish repression, not justice. They strike
at the freedom of every citizen. The community cannot—it will not—tolerate coercion and mob rule. Violence
and destruction must be ended—in the streets of the ghetto1 and in the lives of people.
Segregation and poverty have created in the racial ghetto a destructive environment totally unknown to
most white Americans. What white Americans have never fully understood—but what the Negro can never
forget—is that white society is deeply implicated in the ghetto. White institutions created it, white institutions
maintain, and white society condones it.
It is time now to turn with all the purpose at our command to the major unfinished business of this nation.
It is time to adopt strategies for action that will produce quick and visible progress. It is time to make good
the promises of American democracy to all citizens—urban and rural, white and black, Spanish-surname,
American Indian, and every minority group.
Our recommendations embrace three basic principles:

• To mount programs on a scale equal to the dimension of the problems.

• To aim these programs for high impact in the immediate future in order to close the gap between prom-
ise and performance.
• To undertake new initiatives and experiments that can change the system of failure and frustration that
now dominates the ghetto and weakens our society.

These programs will require unprecedented levels of funding and performance, but they neither probe
deeper nor demand more than the problems which called them forth. There can be no higher priority for
national action and no higher claim on the nation’s conscience…

* The excerpts were reformatted by the author to make the report easier to read.
Chapter two: Historical analysis of police misconduct 33

PART I: WHAT HAPPENED?

Chapter 1: Profiles of disorder
The Kerner report contains profiles of a selection of the disorders that took place during the summer of 1967.
These profiles are designed to indicate how the disorders happened, who participated in them, and how local
officials, police forces, and the National Guard responded. Illustrative excerpts follow.

NEWARK
…On Saturday, July 15, [Director of Police Dominick] Spina received a report of snipers in a housing proj-
ect. When he arrived he saw approximately 100 National Guardsmen and police officers crouching behind
vehicles, hiding in corners and lying on the ground around the edge of the courtyard.
Since everything appeared quiet and it was broad daylight, Spina walked directly down the middle of
the street. Nothing happened. As he came to the last building of the complex, he heard a shot. All around him
the troopers jumped, believing themselves to be under sniper fire. A moment later a young Guardsman ran
from behind a building.
The Director of Police went over and asked him if he had fired the shot. The soldier said yes, he had fired
to scare a man away from a window; that his orders were to keep everyone away from windows.
Spina said he told the soldier, “Do you know what you just did? You have now created a state of hysteria.
Every Guardsman up and down this street and every state policeman and every city policeman that is present
thinks that somebody just fired a shot and that it is probably a sniper.”
A short time later more “gunshots” were heard. Investigating, Spina came upon a Puerto Rican sitting on
a wall. In reply to a question as to whether he knew “where the firing is coming from?” the man said, “That’s
no firing. That’s fireworks. If you look up to the fourth floor, you will see the people who are throwing down
these cherry bombs.”
By this time four truckloads of National Guardsmen had arrived and troopers and policemen were again
crouched everywhere looking for a sniper. The Director of Police remained at the scene for 3 h, and the only
shot fired was the one by the Guardsmen.
Nevertheless, at 6 o’clock that evening two columns of National Guardsmen and state troopers were
directing mass fire at the Hayes Housing Project in response to what they believed were snipers….

DETROIT
…A spirit of carefree nihilism was taking hold. To riot and destroy appeared more and more to become
ends in themselves. Late Sunday afternoon it appeared to one observer that the young people were “dancing
amidst the flames.”
A Negro plainclothes officer was standing at an intersection when a man threw a Molotov cocktail into
a business establishment at the corner. In the heat of the afternoon, fanned by the 20–25 mph winds of both
Sunday and Monday, the fire reached the home next door within minutes. As residents uselessly sprayed the
flames with garden hoses, the fire jumped from roof to roof of adjacent two- and three-story buildings. Within
the hour the entire block was in flames. The ninth house in the burning row belonged to the arsonist who had
thrown the Molotov cocktail….
…Employed as a private guard, 55-year-old Julius L. Dorsey, a Negro, was standing in front of a market
when accosted by two Negro men and a woman. They demanded he permit them to loot the market. He
ignored their demands. They began to berate him. He asked a neighbor to call the police. As the argument
grew more heated, Dorsey fired three shots from his pistol into the air.
The police radio reported “Looters, they have rifles.” A patrol car driven by a police officer and carrying
three National Guardsmen arrived. As the looters fled, the law enforcement personnel opened fire. When the
firing ceased, one person lay dead. He was Julius L. Dorsey.
…As the riot alternatively waxed and waned, one area of the ghetto remained insulated. On the
northeast side the residents of some 150 square blocks inhabited by 21,000 persons had, in 1966, banded
together in the Positive Neighborhood Action Committee (PNAC). With professional help from the
Institute of Urban Dynamics, they had organized block clubs and made plans for the improvement of the
neighborhood….
34 Police Misconduct: A Global Perspective

When the riot broke out, the residents, through the block clubs, were able to organize quickly. Youngsters,
agreeing to stay in the neighborhood, participated in detouring traffic. While many persons reportedly sym-
pathized with the idea of a rebellion against the “system,” only two small fires were set—one in an empty
building.
***
…According to Lt. Gen. Throckmorton and Col. Bolling, the city, at this time, was saturated with fear. The
National Guardsmen were afraid, the residents were afraid, and the police were afraid. Numerous persons,
the majority of them Negroes, were being injured by gunshots of undetermined origin. The general and his
staff felt that the major task of the troops was to reduce the fear and restore an air of normalcy.
In order to accomplish this, every effort was made to establish contact and rapport between the troops
and the residents. The soldiers—20% of whom were Negro—began helping to clean up the streets, collect
garbage, and trace persons who had disappeared in the confusion. Residents in the neighborhoods responded
with soup and sandwiches for the troops. In areas where the National Guard tried to establish rapport with
the citizens, there was a smaller response.

NEW BRUNSWICK
…A short time later, elements of the crowd—an older and rougher one than the night before—appeared in
front of the police station. The participants wanted to see the mayor.
Mayor [Patricia] Sheehan went out onto the steps of the station. Using a bullhorn, she talked to the people
and asked that she be given an opportunity to correct conditions. The crowd was boisterous. Some persons
challenged the mayor. But, finally, the opinion, “She’s new! Give her a chance!” prevailed.
A demand was issued by people in the crowd that all persons arrested the previous night be released.
Told that this already had been done, the people were suspicious. They asked to be allowed to inspect the jail
cells.
It was agreed to permit representatives of the people to look in the cells to satisfy themselves that every-
one had been released. The crowd dispersed. The New Brunswick riot had failed to materialize.

Chapter 2: Patterns of disorder

The “typical” riot did not take place. The disorders of 1967 were unusual, irregular, complex, and unpredict-
able social processes. Like most human events, they did not unfold in an orderly sequence. However, an
analysis of our survey information leads to some conclusions about the riot process.
In general: The civil disorders of 1967 involved Negroes acting against local symbols of white American
society, authority and property in Negro neighborhoods—rather than against white persons.
Of 164 disorders reported during the first nine months of 1967, 8 (5%) were major in terms of violence and
damage; 33 (20%) were serious but not major; 123 (75%) were minor and undoubtedly would not have received
national attention as “riots,” had the nation not been sensitized by the more serious outbreaks.
In the 75 disorders studied by a Senate subcommittee, 83 deaths were reported. Eighty-two percent of the
deaths and more than half of the injuries occurred in Newark and Detroit. About 10% of the dead and 38%
of the injured were public employees, primarily law officers and firemen. The overwhelming majority of the
persons killed or injured in all the disorders were Negro civilians.
Initial damage estimates were greatly exaggerated. In Detroit, newspaper damage estimates at first
ranged from $200 million to $500 million; the highest recent estimate is $45 million. In Newark, early esti-
mates ranged from $15 to $25 million. A month later damage was estimated at $10.2 million, over 80% in
inventory losses.
In the 24 disorders in 23 cities which we surveyed:
The final incident before the outbreak of disorder, and the initial violence itself, generally took place in the
evening or at night at a place in which it was normal for many people to be on the streets.
Violence usually occurred almost immediately following the occurrence of the final precipitating inci-
dent, and then escalated rapidly. With but few exceptions, violence subsided during the day, and flared rap-
idly again at night. The night-day cycles continued through the early period of the major disorders.
Disorder generally began with rock and bottle throwing and window breaking. Once store windows
were broken, looting usually followed.
Chapter two: Historical analysis of police misconduct 35

Disorder did not erupt as a result of a single “triggering” or “precipitating” incident. Instead, it was gen-
erated out of an increasingly disturbed social atmosphere, in which typically a series of tension-heightening
incidents over a period of weeks or months became linked in the minds of many in the Negro community
with a reservoir of underlying grievances. At some point in the mounting tension, a further incident—in itself
often routine or trivial—became the breaking point and the tension spilled over into violence.
“Prior” incidents, which increased tensions and ultimately led to violence, were police actions in almost
half the cases; police actions were “final” incidents before the outbreak of violence in 12 of the 24 surveyed
disorders.
No particular control tactic was successful in every situation. The varied effectiveness of control tech-
niques emphasizes the need for advance training, planning, adequate intelligence systems, and knowledge
of the ghetto community.
Negotiations between Negroes—including your militants as well as older Negro leaders—and white offi-
cials concerning “terms of peace” occurred during virtually all the disorders surveyed. In many cases, these
negotiations involved discussion of underlying grievances as well as the handling of the disorder by control
authorities.
The typical rioter was a teenager or young adult, a lifelong resident of the city in which he rioted, a high
school dropout; he was, nevertheless, somewhat better educated than his non-rioting Negro neighbor, and was
usually underemployed or employed in a menial job. He was proud of his race, extremely hostile to both whites
and middle-class Negroes and, although informed about politics, highly distrustful of the political system.
A Detroit survey revealed that approximately 11% of the total residents of two riot areas admitted par-
ticipation in the rioting, 20%–25% identified themselves as “bystanders,” over 16% identified themselves as
“counter-rioters” who urged rioters to “cool it,” and the remaining 48%–53% said they were at home or else-
where and did not participate. In a survey of Negro males between the ages of 15 and 35 residing in the dis-
turbance area in Newark, about 45% identified themselves as rioters, and about 55% as “noninvolved.”
Most rioters were young Negro males. Nearly 53% of arrestees were between 15 and 24 years of age;
nearly 81% between 15 and 35.
In Detroit and Newark about 74% of the rioters were brought up in the North. In contrast, of the nonin-
volved, 36% in Detroit and 52% in Newark were brought up in the North.
What the rioters appeared to be seeking was fuller participation in the social order and the material
benefits enjoyed by the majority of American citizens. Rather than rejecting the American system, they were
anxious to obtain a place for themselves in it.
Numerous Negro counter-rioters walked the streets urging rioters to “cool it.” The typical counter-rioter
was better educated and had higher income than either the rioter or the noninvolved.
The proportion of Negroes in local government was substantially smaller than the Negro proportion of
population. Only three of the 20 cities studied had more than one Negro legislator; none had ever had a Negro
mayor or city manager. In only four cities did Negroes hold other important policy-making positions or serve
as heads of municipal departments.
Although almost all cities had some sort of formal grievance mechanism for handling citizen complaints,
this typically was regarded by Negroes as ineffective and was generally ignored.
Although specific grievances varied from city to city, at least 12 deeply held grievances can be identified
and ranked into three levels of relative intensity:

First level of intensity

1. Police practices
2. Unemployment and underemployment
3. Inadequate housing

Second level of intensity

4. Inadequate education
5. Poor recreation facilities and programs
6. Ineffectiveness of the political structure and grievance mechanisms.
36 Police Misconduct: A Global Perspective

Third level of intensity

7. Disrespectful white attitudes

8. Discriminatory administration of justice
9. Inadequacy of federal programs
10. Inadequacy of municipal services
11. Discriminatory consumer and credit practices
12. Inadequate welfare programs

The results of a three-city survey of various federal programs—manpower, education, housing, welfare
and community action—indicate that, despite substantial expenditures, the number of persons assisted con-
stituted only a fraction of those in need.
The background of disorder is often as complex and difficult to analyze as the disorder itself. But we find
that certain general conclusions can be drawn:

Social and economic conditions in the riot cities constituted a clear pattern of severe disadvantage
for Negroes compared with whites, whether the Negroes lived in the area where the riot took
place or outside it. Negroes had completed fewer years of education and fewer had attended high
school. Negroes were twice as likely to be unemployed and three times as likely to be in unskilled
and service jobs. Negroes averaged 70% of the income earned by whites and were more than twice
as likely to be living in poverty. Although housing cost Negroes relatively more, they had worse
housing—three times as likely to be overcrowded and substandard. When compared to white sub-
urbs, the relative disadvantage is even more pronounced.

A study of the aftermath of disorder leads to disturbing conclusions. We find that, despite the institution
of some post-riot programs:

Little basic change in the conditions underlying the outbreak of disorder has taken place. Actions
to ameliorate Negro grievances have been limited and sporadic; with but few exceptions, they have
not significantly reduced tensions.

In several cities, the principal official response has been to train and equip the police with more sophisti-
cated weapons. In several cities, increasing polarization is evident, with continuing breakdown of inter-racial
communication, and growth of white segregationist or black separatist groups….

PART II: WHY DID IT HAPPEN?

Chapter 4: The basic causes
In addressing the question “Why did it happen?” we shift our focus from the local to the national scene, from
the particular events of the summer of 1967 to the factors within the society at large that created a mood of
violence among many urban Negroes.
These factors are complex and interacting; they vary significantly in their effect from city to city and from
year to year; and the consequences of one disorder, generating new grievances and new demands, become
the causes of the next. Thus was created the “thicket of tension, conflicting evidence and extreme opinions”
cited by the President.
Despite these complexities, certain fundamental matters are clear. Of these, the most fundamental is the
racial attitude and behavior of white Americans toward black Americans.
Race prejudice has shaped our history decisively; it now threatens to affect our future.
White racism is essentially responsible for the explosive mixture which has been accumulating in our cit-
ies since the end of World War II. Among the ingredients of this mixture are:

• Pervasive discrimination and segregation in employment, education and housing, which have resulted
in the continuing exclusion of great numbers of Negroes from the benefits of economic progress.
Chapter two: Historical analysis of police misconduct 37

• Black in-migration and white exodus, which have produced the massive and growing concentrations
of impoverished Negroes in our major cities, creating a growing crisis of deteriorating facilities and
services and unmet human needs.
• The black ghettos where segregation and poverty converge on the young to destroy opportunity and
enforce failure. Crime, drug addiction, dependency on welfare, and bitterness and resentment against
society in general and white society in particular are the result.
• At the same time, most whites and some Negroes outside the ghetto have prospered to a degree unparal-
leled in the history of civilization. Through television and other media, this affluence has been flaunted
before the eyes of the Negro poor and the jobless ghetto youth.

Yet these facts alone cannot be said to have caused the disorders. Recently, other powerful ingredients
have begun to catalyze the mixture:

• Frustrated hopes are the residue of the unfulfilled expectations aroused by the great judicial and leg-
islative victories of the Civil Rights Movement and the dramatic struggle for equal rights in the South.
• A climate that tends toward approval and encouragement of violence as a form of protest has been cre-
ated by white terrorism directed against nonviolent protest; by the open defiance of law and federal
authority by state and local officials resisting desegregation; and by some protest groups engaging in
civil disobedience who turn their backs on nonviolence, go beyond the constitutionally protected rights
of petition and free assembly, and resort to violence to attempt to compel alteration of laws and policies
with which they disagree.
• The frustrations of powerlessness have led some Negroes to the conviction that there is no effective
alternative to violence as a means of achieving redress of grievances, and of “moving the system.” These
frustrations are reflected in alienation and hostility toward the institutions of law and government and
the white society which controls them, and in the reach toward racial consciousness and solidarity
reflected in the slogan “Black Power.”
• A new mood has sprung up among Negroes, particularly among the young, in which self-esteem and
enhanced racial pride are replacing apathy and submission to “the system.”

The police are not merely a “spark” factor. To some Negroes police have come to symbolize white power,
white racism and white repression. And the fact is that many police do reflect and express these white attitudes.
The atmosphere of hostility and cynicism is reinforced by a widespread belief among Negroes in the existence
of police brutality and in a “double standard” of justice and protection—one for Negroes and one for whites.
To this point, we have attempted to identify the prime components of the “explosive mixture.” In the
chapters that follow we seek to analyze them in the perspective of history. Their meaning, however, is clear:
In the summer of 1967, we have seen in our cities a chain reaction of racial violence. If we are heedless, none
of us shall escape the consequences.
[Committee note: The term ghetto as used in this report refers to an area within a city characterized by
poverty and acute social disorganization, and inhabited by members of a racial or ethnic group under condi-
tions of involuntary segregation.]

Source: United States. Kerner Commission, Report of the National Advisory Commission on Civil Disorders
(Washington: U.S. Government Printing Office, 1968)

their own differences, even if it resembles sub- and public order. I would argue that along
tle differences in how policing is performed. the way, the primary policing mission has
Policing has become increasing more changed substantially, and yet we continue
complex, and the demands placed on polic- to build reform upon the same fundamental
ing have grown exponentially. All of these constructs, which does not really fit with what
changes have taken place despite the primal communal demands and expectations that
mission of the police, which has been to focus present themselves as challenges to modern
primarily on the notions of public safety policing. Arguably, public safety and public
38 Police Misconduct: A Global Perspective

order only represents a portion of the over- which to pass on. It is no easy task to change decades of
all mission of policing (varying in scope and governmental behavior.
magnitude depending upon the jurisdiction). Currently, the panacea is to call in the U.S.
Department of Justice (DOJ) for a civil rights investiga-
The next era was the Reform Era. Police were tion. Most people from the current generation do not
introduced to various technologies of the time such seem to remember the lessons of the past. The DOJ has
as fingerprinting, crude criminal data-basing, mili- been called in for most of the “incidents” to investigate,
taristic discipline within the ranks, education, and make recommendations and coerce reform. As of the
other advancements to help deal with crime fighting. last decade or so, the DOJ has provided “technical assis-
However, many police departments still resisted the tance” and/or investigated law enforcement agencies
change from the earlier spoils system. in 20 states and the territories of Puerto Rico and the
As the government itself attempted to evolve, so too Virgin Islands. According to their website, the DOJ has
did the various governments try to evaluate and reform or is involved in “helping” approximately 28 agencies.28
its policing. One of the earliest efforts to reform policing Bloomberg News gives a chilling account of just
was the 1929 Illinois Crime Survey.21 Although mainly how many and the cost of incidents precipitating DOJ
addressing issues with the Chicago police and the intervention.29 The DOJ can initiate investigations, nego-
Illinois justice system, it was the first to directly confront tiate with the government, come to a memorandum of
policing problems and systemic concerns. The next and understanding/agreement or most invasive, a consent
far more ambitious report was the Wickersham Report. decree. Some police departments are repeat offenders
The 1931 National Commission on Law Observance and others are or were under some sort of DOJ supervi-
and Enforcement (more commonly known as the sion for more than 10 years. Most people can guess these
Wickersham Commission) in volume 11 of their report departments: Cleveland, Detroit, NYPD, LAPD, DC
entitled “Report on Lawlessness in Law Enforcement,” police, New Jersey State Police, Portland, New Orleans,
directly called attention to police corruption, poor and others.
leadership and management, neglected education and How can this still be going on after so many com-
training, and need for the “divorce of enforcement from missions and intervention my DOJ? Organization
politics” as well as other troubles within policing. The behavior is still the best answer. It is not just “one rotten
report mentions “the third degree,” disallowing access apple” or an “isolated incident” as many cities would
to council, brutality, corruption, and other illegal prac- have one to believe. As I travel to different police orga-
tices.22 The commission acknowledged these actions nizations around the country and attend conferences,
had been going on for decades. I talk to the officers and trade “war stories.” The one
Since then, there has been no lack of governmental thing I have noticed while taking to veterans from these
committees to address what was first mentioned in the inglorious departments, they all say that they all say
1930s. The Knapp Commission in New York,23 The LAPD that, “It’s not like the old days.” Certain key words and
Rampart Scandal,24 the NYPD Mollen Commission,25 phrases like suspects falling up the steps, using a “snot
and the LAPD Christopher Commission26 are but a lock” (choking), flashlight therapy (hitting with a flash-
partial mention of various committees to uncover light) needing a “tune up,” taking “corrective action”
and report recommendations for change. For a more for POP (pissin’ off the police) or COP (contempt of cop)
comprehensive list of other less familiar committees, with some “stick time” (using batons) seem to come up
Human Rights Watch organization has 14 cities listed when describing arrested or “abusive” citizens.
and their abuses listed.27 Even the least committed I was also introduced to a whole new lexicon for
researcher can find several historical mentioning of people who the police didn’t like or were not upstand-
police deviance and subsequent recommendations. ing. It varies regionally but terms such as turds or float-
Given the magnitude of systemic failure on the part of ers, perps, scumbags, ADFN (another dumb f%$^ n^&%$),
governmental oversight, why haven’t these plethora of Mope (a lazy person), strawberry (a young girl who
recommendations been implemented? The answer is exchanges sex for drugs), B girl (prostitute), badge bunny
that some things do change but it is merely superficial or fender lizard (girl cop-groupies) are just some of the
and not transformational. multitude of derogatory names police use to communi-
As mentioned before, there are two different levels cate disdain for the people they encounter.
to look at police deviance and behavior; one is the macro For a decent “cop slang” listing, see policemag.com’s
level and one is the micro level. So far, this article has listing.30 It is fairly accurate. If I were a normal “schmoe,”
been addressing the macro level thus, leading into orga- this would lead me to wonder if other occupations had
nizational behavior and change. The New York City and their own words for people they encounter and dislike.
Los Angeles Police Departments are very large depart- Although I’ve not studied that, I’m sure they do. But to
ments and have decades of organizational behavior upon what degree would a salesperson describe a particularly
Chapter two: Historical analysis of police misconduct 39

unpleasant person to their boss and more importantly, police practices for decades. Much like habitual offend-
what she or he would have liked to do to them for wasting ers in the criminal justice system, it is only a matter of
their precious time? Somehow I cannot envision a sales- time and opportunity before they offend again.
person telling their boss that a turd wasted their time and One can only mitigate the harm to the city and its
that they need to get the crap beat out of them for it. people. I wish I could offer a rosier outlook but the years
To some, it might seem as if I have strayed from the of proof in practice have led me to conclude that certain
subject. However, what has been evidenced is allowable organizations are not going to change. However, there
organizational behavior that seems particularly harm- is hope at the micro level of police deviance and mis-
less. Calling someone names and disrespecting citizens conduct. This level is at the individual officer level and
seems a long way from abuse of force and shooting peo- much more is known about what can be done to correct
ple. Much like the DOJ investigations, I look for a “pat- deficient officers.
tern of practices.” There have been many theories posited as to why
If management allows this type of behavior they are officers do bad things. In order to cover why individ-
implicitly devaluing the citizens. If the citizens are not ual officers, commit deviance, one must start from the
seen as husbands, wives, spouses, aunts, friends, and beginning. People are not born police officers. At some
so on, for example, normal people who sometimes do point in a person’s life, he or she decides they would like
bad things rather than just bad people, it is much easier to become an officer.
to prejudge—as some are calling it now unconscious For most departments, the steps from civilian to a
bias—and therefore, not respecting life and property. sworn officer is a long an arduous one. As I suggested
Many people have made the astute observation that earlier, people who want to become officers do not
this does not seem to happen in the rich, white place believe they will be “that one” who becomes deviant or
in the jurisdiction. Correct. This is because the officers shoots someone illegally.
know through organizational behavior that they have a It’s always the other officer; that “rotten apple.”
greater possibility of being complained about and hav- There is good cause to have this naïve attitude upon
ing a legitimate chance of being investigated as well as applying to become an officer. It’s assumed that every
possibly being sued. In order for this type of behavior to applicant wants to “help” people and this is borne out
stop, police managers and supervisors need to pay close in almost every applicant interview I’ve ever done.
attention to how officers describe and interact with the When asked why he or she wants to become an offi-
public. cer, the vast majority of applicants say, “I want to help
Officers know what type of behavior is permis- people.” or “I want to make a difference.” Those two
sible and in some instances, reinforced, and they will answers are by far the most popular answers. No one
act accordingly. Sometimes the organizational behav- says that they want to drive fast, be above the law, and
ior/culture has become so mismanaged, that change is be allowed to shoot at people! So why do applicants
required. This is not promoting another deputy chief change from wanting to help people to some wanting
from within the department because it is likely she or to hurt people?
he is a conformer and enabler rather than a reformer. Most applicants across the United States go through
A simple question for those mayors and commit- a set of minimum hiring processes mandated by their
tees who appoint from within is: What was that person state and in some instances, additional “hoops” for cer-
doing to change the environment when they had the tain departments. However, it was not so long ago that
chance? If that person did nothing, he or she was just there were no standards for becoming an officer or even
as complicit in creating or allowing that behavior and having a department.
permissive organizational atmosphere as the person in Partially due to some factors in the 1960s, law
charge. True change can only be accomplished by hir- enforcement and more specifically, training had to
ing an outside leader who has a proven track record evolve. The first part of that evolution was The President’s
along with some DOJ help. Having a leader with an Commission on Law Enforcement and Administration
unrelenting moral compass backed with the enforce- of Justice.31 Through much of the turbulent 1960s, peo-
ment authority of the DOJ is a good starting point to (re) ple started seeing police officers at their worst during
gaining legitimacy with the citizens and getting rid of the civil rights movement.
noncompliant officers. During this time, it was decided several things
So far, much has been discussed about issues with needed to change. As a result, not only the police but
police organizations and their behavior at the macro also the entire criminal justice system was once again
level. It is a matter of tradition, a lack of leadership and under a microscope. Hence, an entire chapter was
direction, and a permissive or unprincipled organiza- devoted to policing. Within the several troubling con-
tional behavior over time. There is no quick fix for these cerns and recommendations confronted in the chap-
departments that have demonstrated unacceptable ter on policing, two items seemed elementary and
40 Police Misconduct: A Global Perspective

paramount to the professionalization of policing. The a few senior officers and supervised by sergeants who
first was bringing all states to require minimum hir- had never been to an academy. That scenario was in the
ing standards and training. The second was to create mid-80s in Georgia. Some states such as Texas had a
a state-level organization to establish and oversee stan- 320-h academy by that time.33 There was and still is no
dards and training. This was the first attempt to create national standards of training and education!
criteria for hiring and standards. These organizations Very slowly and painfully, older, less-trained offi-
are commonly referred to today as police officer stan- cers and supervisors who were grandfathered started to
dards and training or POST. retire around the 1980s. This was about the time POST
There are state variations on the name such as Texas’s starting having slightly more influence in basic stan-
Texas Commission on Law Enforcement or TCOLE (for- dards for training and in-service. One element, educa-
merly TCLEOSE) and Michigan’s Commission on Law tion of officers, has been a subject of contention since the
Enforcement Standards or MCOLES but essentially they 1931 National Commission. It was suggested then and in
all served the same functions. Those officers who were every major commission since that officer at least have
already employed were “grandfathered in” meaning, some college. Specifically, the President’s Commission
they were not required to go to an established basic on Law Enforcement and Administration of Justice,34
academy. Ultimately they would have to attend periodic the National Advisory Commission on Criminal
in-service training, but they were not required to attend Justice Standards and Goals,35 and the American Bar
an academy. In the first part of my career, we had sev- Association Project on Standards for Criminal Justice36
eral officers and even more supervisors who had never all recommended college-educated police officers at the
stepped foot inside an academy. time.
They seemed to hang on forever without even the One could easily argue, policing pioneers such
basic knowledge of why they were doing what they as August Vollmer advocated as early as the turn of
were doing. They often explained to new officers— the twentieth century for an entrance requirement
because they were training new officers!—we’ve done of at least some college.37 As of 2013, 84% of the law
it that way forever and we’re not changing now. So in enforcement agencies in the United States required
essence, older, nontrained, senior officers were training only a GED or high school diploma as an entry-level
new academy graduates. requirement.38
There were no field-training programs or field- To add insult to injury for those who seek higher
training officers in most departments. Training was standards, the federal government started the Office
haphazard and it was decided by senior officers talk- of Law Enforcement Assistance in 1966 specifically
ing to their supervisors who stayed and who was fired. designed at “practically giving” a college education to
The standards were if a recruit could handle himself (no officers. Several of the officers to whom I spoke remem-
females on patrol in most places) in a fight and would ber those funds for college and remarked that the fed-
listen and follow orders. eral government paid for their college education and
To give you an idea of the times, Texas established some actually made extra money by going to college!
TCLEOSE (POST) in 1965 but was not funded until 1967. Yet few took advantage of “free college.” In fact, there
Even then, it had four people to administrate a “vol- were few criminal justice programs back then.
untary program of certification” for the entire state.32 Most officers majored in Sociology, Psychology,
The first mandated academy in Texas was not required Social Work, Public Administration, and Business. If
until 1970 for new applicants and consisted of 140 h! only one good thing came out of all the money spent to
The minimum education was a GED or high school educate officers, universities had to (eventually) form a
diploma. If you will remember back to when this article true criminal justice program because of the increased
mentioned all the committees dated as far back as 1931; demand. However, it did little to increase the states’
every commission recommended some college educa- minimum requirements.
tion and basic hiring standards. It took more than four In fact, several studies and commissions on the
decades for some of these recommendations to take effects of college-educated officers versus noncollege
place. Several states also allowed for new hires to work educated have not swayed the pendulum toward more
as fully sworn officers for a year or more before they education.39 This issue is so controversial and there have
had to either be reassigned as nonsworn or go to an been so many contradictory studies as to the effects of
academy. It was a big deal in those days to send a per- college and police/policing, it is far beyond the scope
son to an academy. of this argument. It is worth noting however, there
I was one of those who was hired as a civilian and remains little progress since the early 1900s.
worked in the police jail, a walking beat, and as a junior The minimum of a GED or high school diploma is
partner in a radio car for a year until the department sent but one of the typical requirements to become a police
me to a 240-h academy. However, I was still “trained” by officer. Another, of course, is minimum age. All states
Chapter two: Historical analysis of police misconduct 41

agree that a minimum of 21-years old is the requirement. polygraph), and typically a board of officers who ques-
Some departments allow one to enter the academy at 20 tion them regarding decision-making abilities, the
but must be 21 at graduation. Again, there is too much applicant is given a “conditional offer of employment.”
literature as to the maturation of the average 21-year old This is condition that he or she passes a drug screen, a
to be properly discussed within the scope of this paper. physical given by a medical doctor and a psychologi-
Departments must rely upon their individual cal test/interview given by a psychologist. If applicants
screening process to assess if the applicant is “mature pass these final hurdles, they are hired as cadets.
enough” at these younger ages. As a past background Some departments hire applicants and put them
investigator, I can attest that the department trust such through their own academy while others (usually
things as prior work history, credit history, driver’s smaller departments) hire only applicants who have
history, and drug use to better inform as to the matu- paid their own way through the academy and have
rity and acceptability of the applicant. Things such as passed. The most important part here is that to some
multiple jobs, unusual terminations from jobs, poorly extent, there has been some standardization of hiring.
explained bad credit, several entries of traffic offenses No department can get away with continually hiring
and personal drug usage beyond experimenting with unqualified candidates. Therefore, it is assumed that
marijuana can be disqualifiers for a police job. Each those who are hired meet a minimum standard and are
department sets its threshold for all of these categories. mostly similar. The next stages, the academy and field
One department could overlook bad credit if it training, are where I have noticed and hypothesized
was the result of trying a small business unsuccess- that most of the socialization into the police subculture
fully and having to file bankruptcy while another may and deviance begins.
not care and disqualify the applicant simply because Academies are usually divided into a “traditional”
of the bankruptcy entry. Another department may be or militaristic academy where cadets are taught the cur-
alarmed at three traffic citations for speeding within a riculum while not questioning the chain of command,
year whereas another looks at the speed over the limit taught to follow orders, question little, and discipline.
as important. The most concerning point to all the Punishments for adherence are pushups, extra duty, or
inconsistencies is that an applicant can “shop around” ridicule. The other type of academy is called the aca-
for departments that have more lenient hiring practices. demic academy or problem-based academy.
Once hired, the officer has as many policing powers Although there are few studies as to the difference
as another officer whose department has very stringent in effectiveness of their curriculum,42 there is socializa-
requirements. This may lead to the phenomenon known tion taking place in various forms.43 Particularly salient
as gypsy cops. This is the problem where underquali- here are the recruits’ concept of what is permissible and
fied or rogue officers go from department to department acceptable. Here is where use of force is taught as well as
without the state’s intervention thereby causing liabil- to some extent, verbal communication skills. Of particu-
ity for officers and their departments.40 Few states have lar notice is the use of time for instruction in these mat-
contingencies for gypsy cops. ters. I have begun to calculate the time for use of force
Typically, after the applicants have successfully lessons in state academies versus any forms of interper-
made it through the initial entrance exam and back- sonal communication and so far have come up with a
ground, they may or may not have a polygraph or voice ratio of about 5 to 1 for use of force.
stress analysis to further verify what they have put in For example, in Texas, classes such as firearms,
their background is truthful. Moreover, such practices baton training, “force options,” and “professional police
of verification of truthfulness differ from department- driving” topics devoted 104 h of the required 643 total
to-department. While some use these devices as dis- academy hours while topics such as “multiculturalism
qualifiers (a bad result), others may only use them to and human relations,” “professionalism and ethics,”
help inform their overall decision (inconclusive results). and racial profiling classes, totaled 22 h.44
Others still, use no means to verify truthfulness other The class with the most hours was traffic enforcement
than the backgrounder’s investigative skill in verifying at 68 h. This is typical across states and in my opinion
the applicants’ answers to their personal history. In any shameful and irresponsible. Management understands
case, there is cause for concern at this stage. it is a liability issue and want their recruits to be fully
Lie detectors are still not accepted as necessarily sci- versed in the use of force but to what degree do recruits
entific and trustworthy while investigators are not usu- need to be taught firearms training (48+ h) versus know-
ally trained in background investigations and personal ing how to talk to distressed people (8 h)? The vast major-
interviews. As Lilienfeld and Landfiled put it, it is still a ity of the job is being able to talk to a diverse set of citizens
pseudoscience.41 who are in some sort of crisis and yet that is not taught.
If an applicant passes the entrance test, physical Some academies have scenarios such as answer-
agility assessment, the background (with or without a ing a domestic disturbance but legal applications and
42 Police Misconduct: A Global Perspective

allowable force is taught, not necessarily problem solv- evolved and although there are other programs such as
ing and de-escalation of force. Here is the first time civil- the Police Training Officer program or “Reno (Navada)
ians (essentially) are “taught” how to deal with stressful Model” available, the basics remain the same: train
situations, uncooperative people, and force while using the officer to become what the department expects for
complex, split-second decision-making skills. example socialize the officer.
In my opinion and observations, police rely on The typical program (the San Jose model or the
what they have been taught: control the scene and offi- Reno model) essentially has phases whereby the offi-
cer safety. If they have been taught use force to control cer progressively learns the “department’s way of
the scene and maintain officer safety, they will do so. If doing things” under the tutelage of prototypically ideal
they have been taught to use their greatest “weapon” for training officers. That is at least the concept in theory.
example their wits and problem solving abilities, they In practice however, no program or training officer
will do so. This all directly relates to department stan- requirement or standardization exists. It varies by state
dards and who the department hires. If the department and ultimately, by department.
does not have high hiring standards and the cadets are Some departments have a very regimented pro-
poorly or incorrectly trained, there should be no sur- gram and strict selection processes for FTOs47 while
prise that officers (re)act poorly on the street. After the others still use “veteran” officers to train rookies. Still
academy stage, the department and his or her fellow others may have a documented, strict, selection process
officers still have a chance to weed out the “bad” officers but due to departmental issues such as a shortage of
or further socialize the “acceptable” ones. properly trained FTOs, substitutes are used. Such was
I have often argued that the recruits who come out the problem I encountered while studying the Dallas
of the academy are trained similarly and socialized to a (Texas) Police Department’s FTOs.
somewhat consistent standard—regardless of the con- There had been some recent incidents where officers
tent or adequacy of academy training. There is a field- had violated policy and the officers were rookie officers.
training process between book learning (the academy) When questioned, the officers said they were trained in
and being let loose alone on the unsuspecting public. the proper way but shown various ways to get around
I have advocated that phase is the most crucial part policy. Some incidents were nationally publicized and
for an impressionable officer and sets their career tra- shown the department in a less than favorable light. The
jectory.45 I deemed this as the most pivotal part of an tipping point where the chief asked what was going on
officer’s socialization process, in that, the field-training with the “rookies” was after an officer attempted to pull
officers (FTOs) are the most significant and influential over the driver of a car driven by a professional football
people the officers will encounter during their career. player. The driver had committed a minor traffic and
(Remember that I had no field-training program or would not pull over. The officer “pursued” the driver—
FTOs when I started law enforcements) I have asked who was going the speed limit and stopping at stop
countless 20+ year veteran officers who their supervi- signals—a short distance to the hospital.
sors or even chiefs were over their career and they had Once the driver stopped, the young officer pointed a
difficulty remembering them. When I asked who their gun at the driver and lost control of the passengers. While
FTOS were, the majority of them could recall at least one the driver tried to explain that his mother-in-law was
if not all of them—and still use them as a mentor. The dying, he identified himself and pleaded to be released
FTO relationship is that influential. This influence can long enough to be at her dying bedside. The officer
be positive or negative and I suggest, it is lasting. ignored the other passengers who simply walked away
In 1969, the San Jose Police Department (SJPD) hired (officer safety issue) and told the driver, “I can screw you
a “likable, enthusiastic, but naïve, young recruit” who over.” Another officer from a different jurisdiction arrived
was judged by his peers and supervisors as “unaccept- and tried to convince the Dallas officer to let him go. To
able police officer material,” yet allowed to continue as no avail, the Dallas officer berated the driver further and
a police officer, “although there were numerous areas caused him to miss his mother-in-law’s last moments.48
in which he was judged to be ‘in need of improvement’ The officer was fired in this case for violation of
(judgment, safety consciousness, and work quality).”46 department policy. He had been on the department only
A short after these observations, the officer killed a citi- a short time. Shortly after that incident, another rookie
zen in a traffic accident. officer (less than 2 years) who was “in pursuit” of the
From this tragedy, the SJPD started what would driver of a motorcycle had a junior officer with him who
become the nation’s model training program initially had less than 20 months on the job. Both officers had just
called the Filed Training and Evaluation Program or been released from the FTO program. The supervisor
FTO program for short. This FTO program bridged told the officers to stop the pursuit.
the gap from police academy graduates to solo offi- The officers not only did not stop the pursuit but
cers. Through the years the program has morphed and exclaimed they were going to “…beat the [expletive] out
Chapter two: Historical analysis of police misconduct 43

of him.” when they caught him. The in-car video cap- back in the 1900s and so many committees have recom-
tured this exchange between the officers and the subse- mended. If history has taught us nothing, we cannot
quent beating of the motorcyclist as the cyclist begged expect different results given misguided management
the officers to “Please stop!”49 While it may seem like I’m and supervision, poor officer selection, insufficient
picking on the Dallas Police Department, these are only training and scant education. Why then are we sur-
a glimpse of a much wider problem. I just happen to prised when things go bad?
have personal knowledge of these incidents. A Google
search of “rookie officer fired” yielded 8040 results.
Much like the chief’s question, I asked, “What’s going Summary
on here?” • Police misconduct is not a recent phenomenon.
After researching the Dallas dilemma, I found that There have been reports of police misconduct from
it was acceptable for division commanders (or lieuten- the beginning of the modern police force.
ants) to assign rookies to ride with rookies and even • Many of the early reports were of police brutality,
more troublesome, all senior corporals could be (and especially against striking workers.
were) assigned as FTOs (I could not find a copy of the • The early policing of black, Latino, and Native
professed memorandum allowing this). This meant American communities in the United States was
officers who had no training in how to be a trainer (an initially in the form of occupation, surveillance,
FTO) were in fact, training rookies. The standards were and pacification.
bent because of the lack of FTOs to trainees’ ratio. What • Lynching has had an essential part in understand-
the department was experiencing were the repercus- ing the history and character of police violence in
sions from unqualified trainers influencing new offi- America because it reveals the sexual and gender
cers. This form of socialization can stick with an officer dimensions of maintaining the color line and dis-
throughout their career and easily manifest itself in ciplining minorities.
poor judgment and deviance. The entire premise of the • Most researchers trace the modern police depart-
FTO program was to select a volunteer, model officer ment’s origin to Alfred the Great of England dur-
who is trained as an FTO to train rookies. This clearly ing the ninth century.
was not happening. • By the seventeenth century, the chief law enforce-
Across the United States, FTOs are training rookie ment officials in the urban areas of England were
officers. No standards are required for FTOs by some the magistrates, who presided over the courts,
departments and others are “drafted” into training ordered arrests, and investigated suspected crimi-
without themselves being trained. There have been nal activities. In rural areas, the shire-reeves were
no studies about how officers were trained after inci- responsible for maintaining law and order among
dents of abuse of force or other deviance. It is likely the citizens.
that those officers had poor training and/or supervi- • The thief-takers were private individuals who
sion. Unfortunately, those incidents are usually settled were paid by the government on a piecework basis.
through legal means and the real reason the officers mis- They had no official status and only the author-
behaved or committed illegal acts are not publicized. ity of private citizens to arrest. Many of the thief-
Currently, there seems to be a media frenzy every takers were criminals themselves.
time an officer shoots someone or uses force. I submit • When the English settlers settled in America, they
the officers’ behavior is nothing new but rather, more brought with them the English law enforcement
publicized. In most cases, we will never know the real structure. At the time, America was mostly rural
reason an officer used the force he or she thought neces- and was policed by officers in the offices of con-
sary. Nevertheless, as responsible criminal justice prac- stable and sheriff.
titioners or academics, we should find the root cause. I • The first modern police force in the United States
submit that these macro factors of organizational behav- was the slave patrols, which were established in
ior that allows deviance and the micro level causes of the southern states.
bad recruitment and training are to blame for the major- • The first organized metropolitan American police
ity of poor decisions. force was established in Philadelphia in 1833.
As I have stated, people do not enter policing with • The first police forces were generally under the
the intent of violating someone’s rights. They may not control of a chief of police who was appointed by
have the most altruistic reasons or they may be com- the mayor. The mission of the early police depart-
pletely naïve, but no one has shown evidence yet that a ments was merely to keep the city clean and to
model agency with properly trained and educated offi- keep everything quiet.
cers have displayed a pattern or practice of misconduct. • In the late nineteenth century, in an effort to elimi-
It is time to raise that bar that August Vollmer proposed nate politics from the police forces, many cities
44 Police Misconduct: A Global Perspective

established police administrative boards. These detective, a 13-year veteran of the NYPD, with violat-
boards exercised control over the police depart- ing the civil rights of three women through sexual
ment. The boards were given responsibility for misconduct.
managing police affairs and appointing police As alleged in court filings by the government, the
administrators. officer arrested a woman identified in the information
• Starting with the latter part of the 1800s, police as Jane Doe 1 (“the victim”) and her boyfriend on drug
forces grew in size and expanded their functions, distribution charges following the execution of a search
with attempts at reform including the concept of warrant at their apartment. During the arrest, the officer
merit employment and civil service. forced the victim to undress in front of him in the bed-
• Narrowly defined, police corruption refers to police room of the apartment. Later, the officer told the victim
personnel who use their position and authority for that she was going to jail and would lose her children
personal rather than public benefit. More broadly, unless she had sex with him. When the victim went to
police corruption refers to any violation of rules, the restroom at the precinct, the officer followed her
even when there is no personal gain, as in perjury, inside and made her perform oral sex. Upon the victim’s
physical abuse of prisoners, sexual misconduct, release from custody, the officer told her that he expected
robbery, and racial profiling. her to have sex with him at a later time. Thereafter, the
• Police corruption in American police depart- officer called the victim on numerous occasions. The
ments became widespread shortly after the for- victim subsequently reported the officer’s misconduct
mation of the first police departments in the to the NYPD’s internal affairs bureau, which began an
mid-1800s. investigation. The officer was removed from active duty.
• The political era of policing was so named because As further alleged in the government’s court filings,
of the close ties between police and politics. This the officer engaged in similar misconduct in connection
era began with the development of police depart- with the arrest of another drug dealer. On that occasion,
ments during the 1840s, continued through the the officer coerced a female cousin of the drug dealer,
Progressive period, and ended during the early identified in the information as Jane Doe 2, to engage in
1900s. sex acts with him based on threats he made concerning
• The reform era developed in reaction to politics. It the lengthy prison sentence faced by the drug dealer.
started in the 1900s but only took hold during the In a third incident, the officer allegedly engaged in
1930s. The era thrived during the 1950s and 1960s lewd sexual behavior in front of a female arrestee and
but began to be eroded during the late 1970s. then forced her to raise her shirt to expose her upper body.
• Prohibition in the 1920s greatly increased the As a member of a police oversight board, what actions
potential for corruption. Massive amounts of should the police department take to prevent future abuses
money were being made by bootleggers who in such as those committed by this officer?
turn paid off police officers to allow their illegal
activities to continue.
• The production of the 1931 Report on Lawlessness Discussion questions
in Law Enforcement by the Wickersham
Commission was one of the most important events 1. Explain why the police in the United States have a
in the history of American policing. It was the first history of brutality.
systematic investigation of police misconduct. 2. What were the problems with the early police
• American history is replete with reports of police departments?
brutality, especially against striking workers. 3. What is the importance of the Wickersham
Apparently the first use of the term police brutality Commission’s report?
by the media was in the New York Times in 1893. 4. Why were the early labor strikes so violent?
• There are numerous reports of police brutality 5. Explain the role of race in early police misconduct.
against striking workers and minority citizens.
• The summer of 1967 again brought racial disorder
to American cities, and with it shock, fear, and References
bewilderment to the nation.
1. Robin Kelly (2001) Slangin rocks…Palestinian style. In
Police Brutality, ed. Jill Nelson, New York: Norton, pp. 21–59.
2. John Joseph Wallis, Price V. Fishback, and Shawn Kantor
Practicum (2006) Politics, relief, and reform. In Corruption and Reform:
Lessons from America’s Economic History (National Bureau
A criminal report was filed with the Brooklyn federal of Economic Research Conference Report), Chicago, IL:
court charging a New York City Police Department University of Chicago Press. Chapter 11, pp. 343–372.
Chapter two: Historical analysis of police misconduct 45

3. A Law That Hides Police Misconduct From the Public. 23. Knapp Commission (1973) The Knapp Commission Report
The Opinion Pages, an editorial. (October 12, 2015) New on Police Corruption: Commission to Investigate Allegations of
York Times, p. A18. Police Corruption and the Cities Anti-Corruption Procedures.
4. Michael Birzer and Cliff Roberson (2007) Policing: Today New York: George Braziller.
and Tomorrow. Upper Saddle River, NJ: Pearson. 24. Board of Inquiry (2000) Board of Inquiry into the Rampart
5. Blythe Bernhard (August 31, 2013) St. Louis takes con- Area Corruption Incident Public Report. Los Angeles, CA:
trol of police department from the state. St. Louis Post- Los Angeles Police Department.
Dispatch, p. A1. 25. Milton Mollen (1994) City of New York Commission to
6. David Bayley and Robert Perito (2011) Police Corruption: Investigate Allegations of Police Corruption and the Anti-
What Past Scandals Teach about Current Challenges. Corruption Procedures of the Police Department. Report
Washington, DC: United States Institute of Peace. issued by the City of New York.
7. George L. Kelling and Mark H. Moore (1988) The Evolving 26. Warren Christopher (1991) Report of the Independent
Strategy of Policing. Washington, DC: National Institute Commission on the Los Angeles Police Department. Los
of Justice. Angeles, CA: The Commission.
8. Samuel Walker (1997) Popular Justice: A History of 27. Human Right Watch (2015) Shielded from justice.
American Criminal Justice, 2nd edn., rev. New York: Statement to the Law Enforcement Equipment Working
Oxford University Press. Group issued by Human Rights Watch.
9. The material for this section was adapted from the article 28. U.S. Department of Justice (2015) Special litigation sec-
“A History of Notable Senate Investigations” prepared tion cases and matters: Law enforcement agencies.
by the U.S. Senate Historical Office, Washington, DC. Retrieved from http://www.justice.gov/crt/special-liti-
GPO. The article may be accessed at http://www.sen- gation-section-cases-and-matters0 - police. Accessed on
ate.gov/artandhistory/history/common/investigations/ December 11, 2015.
pdf/Kefauver_Committee_fullcitations.pdf. Accessed 29. Bloomburg News (2015) A “pattern or practice” of vio-
on October 6, 2015. lence in America. Retrieved from http://www.bloom-
10. Police officer in trouble: Charges against policeman berg.com/graphics/2015-doj-and-police-violence/.
McManus by his sergeant. New York Times, June 23, 1893. Accessed on December 11, 2015.
p. 5. 30. policemag.com (2015) Cop slang. Retrieved from http://
11. Sylvia Gillett (1991) Camden yards and the strike of www.policemag.com/cop-slang/list/browse/-.aspx.
1877. In The Baltimore Book: New Views of Local History, Accessed on December 10, 2015.
eds. Elizabeth Fee, Linda Shopes, and Linda Zeidman. 31. President’s Commission on Law Enforcement and
Philadelphia, PA: Temple University Press, pp. 11–14. Administration of Justice (1967) The Challenge of Crime in a
12. Janice L. Reiff (2005) The press and labor in the 1880s. In Free Society. Washington, DC: United States Government
Encyclopedia of Chicago, ed. James Grossman. Chicago, IL: Printing Office.
University of Chicago Press. pp. 687. 32. Texas Commission on Law Enforcement (2015) Timeline
13. Richard Schneirov (1998) Labor and Urban Politics: Class of legislative and procedural changes. Retrieved
Conflict and the Origins of Modern Liberalism in Chicago, from https://www.tcole.texas.gov/content/09011967.
1864–97. Urbana, IL: University of Chicago Press. Accessed on December 13, 2015.
14. David Ray Papke (1999) The Pullman case: The clash of 33. Texas Commission on Law Enforcement. (2008). History
labor and capital in industrial America. In Landmark Law of the BPOC Course. Austin, TX: Texas Commission on
Cases and American Society. Lawrence, Kansas: University Law Enforcement Standards and Education.
Press of Kansas. pp. 35–37. 34. Presidents Commission on Law Enforcement and
15. John R. Commons et al. (1918) History of Labor in the Administration of Justice (1967) The Challenge of Crime
United States vol. 2. New York: Macmillan. p. 502. in a Free Society. Washington, DC: Government Printing
16. Dommic Capeci, Jr. (1977) The Harlem Riot of 1943. Office.
Philadelphia, PA: Temple Books. 35. United States of America (1973) Report of the National
17. Kevin Johnson (2005) The forgotten “repatriation” of Advisory Commission on Criminal Justice Standards and
persons of Mexican ancestry and lessons for the “war on Goals. Washington, DC: U.S. Department of Justice.
terror.” Pace Law Review, 26(1), 1–26. 36. American Bar Association (1968) American Bar Association
18. Kevin Boyle (2003) After the Rainbow Sign: Jerome Cavanagh Project on Standards for Criminal Justice. Washington, DC:
and 1960s. Detroit, MI: Wayne State University Press. American Bar Association.
19. United States (1968) Kerner Commission, Report of 37. August Vollmer (1917) Police schools. Journal of the
the National Advisory Commission on Civil Disorders. American Institute of Criminal Law and Criminology, 8(3),
Washington, DC: U.S. Government Printing Office. 463–464.
20. Frank Schmalleger and John L. Worrall (2010) Policing 38. Bureau of Justice Statistics (2015) Local Police Departments,
Today. Upper Saddle River, NJ: Prentice Hall. 2013: Personnel, Policies, and Practices. Washington, DC:
21. Arthur V. Lashly (February, 1930) The Illinois crime sur- U.S. Department of Justice.
vey. American Institute of Criminal Law and Criminology, 39. Diane Burns (2010) Reflections from the one-percent
20(4). pp. 588. of local police departments with mandatory four-year
22. National Commission on Law Enforcement Observance degree requirements for new hires: Are they diamonds in
and Enforcement (1931) Report on Lawlessness in Law the rough? Southwest Journal of Criminal Justice, 7(1), 87–108.
Enforcement. Washington, DC: National Commission on 40. Mathew Dolan (2014) Gypsy cops and agency liability.
Law Enforcement Observance and Enforcement. Retrieved from http://www.llrmi.com/articles/legal_
46 Police Misconduct: A Global Perspective

update/2014_dolan_gypsycops.shtml. Accessed on 45. Ryan M. Getty, John L. Worrall, and Robert G. Morris
December 13, 2015. (2014) How far from the tree does the apple fall?
41. Scott Lilienfeld and Kristin Landfield (2008) Science Field training officers, their trainees, and allega-
and pseudoscience in law enforcement: A user-friendly tions of misconduct. Crime and Delinquency, 1–19.
primer. Criminal Justice and Behavior, 35(10), 1215–1230. doi:10.1177/0011128714545829
42. Gregory P. Vander Kooi and Louann Bierlein Palmer 46. Sharon A. Moore and Aleda M. Womack (1975) A his-
(2014) Problem-based learning for police academy stu- tory of the San Jose police department field training pro-
dents: Comparison of those receiving such instruction gram. Retrieved from http://michiganfto.com. Accessed
with those in traditional programs. Journal of Criminal on December 13, 2015.
Justice Education, 25(2), 175–195. 47. City of Mesa. (2002) Mesa Police Department Supplemental
43. Allison T. Chappell and Lonn L. Lanza-Kaduce (April, Manual: Field Training Officer Program. Mesa, AZ: City of
2010) Police academy socialization: Understanding the Mesa Police Department Retrieved from http://www.
lessons learned in a paramilitary-bureaucratic organiza- wftoa.org/manuals/Mesapd_fto_manual.pdf. Accessed
tion. Journal of Contemporary Ethnography, 39(2), 187–214; on December 10, 2015.
and Norman Conti and Patrick Doreian (December, 48. Lynn Zinser, L (March 30, 2009) Ryan Moats and the
2014) From here on out, we’re all blue: Interaction order, Dallas police: Updated with apology accepted. New York
social infrastructure, and race in police socialization. Times. pp. A-4.
Police Quarterly, 17(4), 414–447. 49. Rebecca Lopez (September 13, 2010) Dallas police con-
44. Texas Commission on Law Enforcement (2015) Basic sider next move in brutality probe. Retrieved from
peace officer. Retrieved from https://www.tcole. http://www.wfaa.com/news/crime/Police-Brutality-
texas.gov/content/course-curriculum-materials-and- Investigation-102813284.html. Accessed on December 13,
updates-0. Accessed on December 13, 2015. 2015.
chapter three

Excessive use of force

Learning objectives to realize that, in present-day policing, they are working
under the microscope of the media, and that any use of
After studying this chapter, the reader should under- force will be examined in multiple different ways to see
stand the following concepts and issues: if the officer(s) used excessive force.
Law enforcement officers are authorized to use
• What constitutes the use of force force in specific circumstances. They are trained to use
• When the use of force is excessive? the force under appropriate conditions. As noted by
• When the police are legally permitted to use a the National Institute of Justice, “Law enforcement offi-
taser cers should use only the amount of force necessary to
• What conduct is considered excessive use of force mitigate an incident, make an arrest, or protect them-
selves or others from harm. The levels, or continuum,
Introduction of force police use include basic verbal and physical
restraint, less-lethal force, and lethal force.”3
I am glad you asked that question [about According to the International Association of
allegations of police brutality toward minori- Chiefs of Police (IACP), there is no universally agreed-
ties], but before I get into it, I might point out upon definition of the use of force.4 The IACP defines
that in a study I once made of the factors that the use of force as the “amount of effort required by
militate against public understanding of the police to compel compliance by an unwilling subject.”
police service, I said that two of the factors The IACP notes that no two situations are the same and
were the criticism of the police by certain that an officer should tailor his or her response to, and
minority groups in order to direct attention apply only that degree of force that is required for, the
from the high incident of criminal activity situation. The association noted that officers should be
within those groups and the practice of the trained to judge when to use force, if necessary, to regain
press in magnifying police failures and in control of the situation, and the appropriate use of force
minimizing their successes or accomplish- (Figure 3.1) (Box 3.1).
ments. [A 1962 statement by Los Angeles
Chief of Police William H. Parker1]
Establishing excessive use of force
This quoted statement by the former chief of police of To establish an excessive use of force claim, a plaintiff
Los Angeles, California is reflective of the attitude of must demonstrate an injury (injury must be more than
police supervisors in the 1960s whenever the police a de minimis injury), which resulted directly and only
were accused of the excessive use of force. from the use of force that was excessive to the need, and
That was in the 1960s; in October 2015, a former that the force used was objectively unreasonable.*
St. Louis prosecutor pleaded guilty to misprision of a An interesting case of the excessive use of force is
felony. The ex-prosecutor admitted in federal court Lockett v. New Orleans.† In that case, a black American,
that she had failed to tell supervisors and a judge what as an arrestee, and his wife, as a bystander, brought
she knew about the beating of a handcuffed suspect civil action against the Louisiana governor, the mayor
at the hands of a veteran police officer. She also admit- of New Orleans, officers of the Louisiana Air National
ted that she helped file a bogus charge against the man Guard, a university police officer, and the New Orleans
in custody. The term misprision of a felony relates to the Police Department. Lockett alleged false arrest and
crime of aiding someone to cover up a crime. In the ex- the malicious use of power and sought injunctive
prosecutor’s statement, she implicated several officers of relief against racial discrimination and profiling by
having been aware of the beating in July 2014 and help- the National Guard and the police. Lockett also con-
ing to cover it up.2 tended that the defendants’ multiple searches of his
With the explosion of mass media, any incidents in
which the police are alleged to have used excessive force * Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001).
will be extensively covered in the media. Officers need † Lockett v. New Orleans, 607 F.3d. 992 (5th Cir. 2010).

47
48 Police Misconduct: A Global Perspective

Figure 3.1 A June 11, 1887, cartoon by Eugene Zimmerman (artist, 1862–1935) depicting the citizens of New York City ask-
ing the mayor of the city to “Protect me from my protectors.” This cartoon reflects the outcry of the citizens at that time
against policemen engaged in brutality and corruption. (Photo courtesy of the Library of Congress Prints and Photographs
Division.)

person constituted excessive use of force. However, considered as excessive force. The individual involved
Lockett failed to allege that an injury had resulted must show injury.
from the pat downs. The court of appeals affirmed
the trial court’s dismissal of the complaint of exces-
sive use of force because Lockett had failed to prove
Assault and battery
that any injuries had resulted from the numerous Law enforcement officers are permitted to use appro-
searches or pat downs of his body. The court also held priate force to accomplish their missions. But the use
that a 1 hour detention of the arrestee, who had been of excessive force by an officer is generally considered
stopped for speeding, was reasonable, and that the as a crime of assault or battery. Assault is the crime of
wife of the arrestee could not reasonably have been threatening to commit a battery or an attempt to commit
expected to have suffered severe, debilitating distress a battery, while the crime of battery is generally defined
from seeing her husband in handcuffs and detained in as the unlawful and offensive touching of another.
a vehicle and in jail. Note that no injury is required for the crime of battery.
The Lockett case seems to imply that numer- Assault and battery are also civil torts, and the victim
ous searches and pat downs of the body cannot be may sue in civil court for monetary damages.
Chapter three: Excessive use of force 49

BOX 3.1 EXCERPTS FROM THE NATIONAL INSTITUTE OF

JUSTICE REPORT “USE OF FORCE BY POLICE”
WORKING DEFINITIONS5
Police use of force is characterized in a variety of ways. Sometimes, these characterizations are functionally inter-
changeable so that one can be substituted for another without doing injustice to the factual interpretation of a state-
ment. At other times, however, differences in terminology can be very consequential to a statement’s meaning. For
example, deadly force refers to situations in which force is likely to have lethal consequences for the victim. This type
of force is clearly defined and should not be confused with other types of force that police use.
In contrast, police brutality is a phrase used to describe instances of serious physical or psychological harm
to civilians, with an emphasis on cruelty or savageness. The term does not have a standardized meaning;
some commentators prefer to use a less emotionally charged term.
In this report, the term excessive force is used to describe situations in which more force is used than is allowable
when judged in terms of administrative or professional guidelines or legal standards. Criteria for judging excessive
force are fairly well established. The term may also include within its meaning the concept of illegal force.
Reference also is made to excessive use of force, a similar, but distinctly different, term. Excessive use of
force refers to high rates of force, which suggest that police are using force too freely when viewed in the
aggregate. The term deals with relative comparisons among police agencies, and there are no established
criteria for judgment.
“Illegal” use of force refers to situations in which use of force by police violated a law or statute, generally
as determined by a judge or magistrate. The criteria for judging illegal use of force are fairly well established.
Improper, abusive, illegitimate, and unnecessary use of force are terms that describe situations in which an
officer’s authority to use force has been mishandled in some general way, the suggestion being that adminis-
trative procedure, societal expectations, ordinary concepts of lawfulness, and the principle of last resort have
been violated, respectively. Criteria for judging these violations are not well established.
To varying degrees, all of the these terms can be described as transgressions of police authority to use
force.

An “assault” is the apprehension of immediate, harm- almost every state, including Maryland, adopted the
ful, or offensive contact with the plaintiff’s person, caused right to resist unlawful arrest. Since that time, however,
by acts intended to result in such contacts, or the apprehen- the majority of states abolished the rule, claiming that it
sion of them, and directed at the plaintiff or a third person; promoted violence. Ironically, the act once recognized by
thus, an essential element of the tort of assault is the appre- most American jurisdictions as an individual’s right is
hension of immediate harmful or offensive contact.* now considered a criminal violation.6
As noted in the Florida case of Long v. Baker, to estab- As noted in the journal article, the modern trend
lish a civil cause of action for battery, a plaintiff must prove among most jurisdictions has been to eliminate the
(1) the intent to cause a harmful or offensive contact with common law right to resist arrest. At least 39 states
another person, and (2) an offensive contact as a direct or abolished this right—23 by statute and 16 by judicial
indirect result.† The intent required for a battery is not nec- decision. These changing views are based largely on
essarily a hostile intent or a desire to do harm. policy considerations. For example, many jurisdictions
viewed the rule as anachronistic and dangerous, claim-
ing it promoted violence. Several courts quoted Judge
Right to resist unlawful arrest Learned Hand in their debate over whether to abrogate
In John Bad Elk v. United States,‡ the U.S. Supreme Court the rule. “The idea that you may resist peaceful arrest…
stated that an illegal arrest was an assault and battery. A because you are in debate about whether it is lawful or
person restrained of his liberty has the same right to use not is not a blow for liberty but on the contrary a blow
force in defending himself as he would in repelling any for attempted anarchy.Ӥ
other assault and battery. The John Bad Elk case is proba- The article noted that the proposition that self-help
bly not valid in present-day America. As noted in a jour- caused graver consequences than an unlawful arrest
nal article, during the nineteenth and twentieth centuries was a valid concern (Box 3.2). It is highly unlikely that a

* Wynn v. City of Lakeland, 727 Fed Supp. 2nd. 1309 (MD, Fla. 2010).
† Long v. Baker, 37 Fed. Supp. 3d. 1243 (MD, Fla. 2014). § Rodgers v. State, 280 Md. 406, 373 A.2d 944, (1977) (quoting 1958
‡ John Bad Elk v. United States, 177 U.S. 529 (1900). Proceedings, American Law Institute, at p. 254.
50 Police Misconduct: A Global Perspective

BOX 3.2 HAVE VIDEO CAMERAS RESULTED IN MORE OFFICERS BEING CHARGED?
Prior to 2015, the annual average was fewer than five officers charged each year with criminal charges in situ-
ations where a person had died. In 2015 alone, 15 were charged with criminal conduct regarding the use of
force in the first 11 months of the year. Professor Phillip Stinson of Bowling Green University indicates that
this sharp increase may be the result of increased use of body cameras. He noted that, over the past decade,
roughly 1000 fatal shootings by on-duty officers were recorded. From the beginning of 2005 to 2014, 47 officers
were charged and about half were convicted. Most experts predict that there will be more charges and more
convictions because of the increased use of video cameras.7

BROWER V. INYO COUNTY 489 U.S. 593 (1989)

Was it excessive use of force for the police to park an 18-wheeled truck across the road behind a curve and
shine bright lights toward a suspect’s oncoming vehicle?
Brower’s heirs brought suit under 42 U.S.C. § 1983 in the Federal District Court, claiming, inter alia, that
the respondents, acting under color of law, had violated Brower’s Fourth Amendment rights by effecting an
unreasonable seizure using excessive force. Specifically, the complaint alleged that the respondents placed
an 18-wheeled truck completely across the highway in the path of Brower’s flight, behind a curve and with a
police cruiser’s headlights aimed in such fashion as to blind Brower on his approach. It also alleged that the
fatal collision was a “proximate result” of this police conduct. The district court dismissed the case for fail-
ing to state a claim, concluding that the roadblock was reasonable under the circumstances, and the court of
appeals affirmed this decision on the grounds that no “seizure” had occurred.
The U.S. Supreme Court held that

• Consistent with the language, history, and judicial construction of the Fourth Amendment, a seizure
occurs when governmental termination of a person’s movement is effected through means intentionally
applied. Because the complaint alleges that Brower was stopped by the instrumentality set in motion or
put in place to stop him, it states a claim of Fourth Amendment “seizure.”
• Petitioners can claim the right to recover for Brower’s death because the unreasonableness alleged con-
sists precisely of setting up the roadblock in such a manner as to be likely to kill him. On remand, the
court of appeals must determine whether the district court erred in concluding that the roadblock was
not “unreasonable.”

JUSTICE SCALIA delivered the opinion of the court:

On the night of October 23, 1984, William James Caldwell (Brower) was killed when the stolen
car that he had been driving at high speeds for approximately 20 miles in an effort to elude pur-
suing police crashed into a police roadblock. His heirs, petitioners here, brought this action in
Federal District Court under 42 U.S.C. 1983, claiming, inter alia, that respondents used “brutal,
excessive, unreasonable and unnecessary physical force” in establishing the roadblock, and thus
effected an unreasonable seizure of Brower, in violation of the Fourth Amendment. Petitioners
alleged that “under color of statutes, regulations, customs and usages,” respondents (1) caused
an 18-wheel tractor-trailer to be placed across both lanes of a two-lane highway in the path of
Brower’s flight, (2) “effectively concealed” this roadblock by placing it behind a curve and leav-
ing it unilluminated, and (3) positioned a police car, with its headlights on, between Brower’s
oncoming vehicle and the truck, so that Brower would be “blinded” on his approach. Petitioners
further alleged that Brower’s fatal collision with the truck was the “approximate result” of this
official conduct. The District Court granted respondents’ motion to dismiss the complaint for
failure to state a claim on the ground (insofar as the Fourth Amendment claim was concerned)
that “establishing a roadblock was not unreasonable under the circumstances.” A divided panel
of the Court of Appeals for the Ninth Circuit affirmed the dismissal of the Fourth Amendment
claim on the basis that no “seizure” had occurred. We granted certiorari to resolve a conflict
between that decision and the contrary holding of the Court of Appeals for the Fifth Circuit in
Jamieson v. Shaw, 772 F.2d 1205 (1985).
Chapter three: Excessive use of force 51

…. The complaint here sufficiently alleges that respondents, under color of law, sought to stop
Brower by means of a roadblock and succeeded in doing so. That is enough to constitute a “sei-
zure” within the meaning of the Fourth Amendment. Accordingly, we reverse the judgment of the
Court of Appeals and remand for consideration of whether the District Court properly dismissed
the Fourth Amendment claim on the basis that the alleged roadblock did not effect a seizure that
was “unreasonable.”

suspect can effectively escape or deter an arrest unless In the updated guidelines, PERF changed the name
the suspect responds with equal or greater force. Thus, of the weapons from CEDs to electronic control weapons
courts have attempted to end what amounted to “street (ECWs) to reflect the reality that these tools are less-lethal
justice” by eliminating this right and encouraging dis- weapons meant to help control persons who are actively
pute resolution through the judicial process. resisting authority or acting aggressively. ECWs are more
commonly known as tasers. In the latest revision, PERF
established seven guidelines for the use of ECWs:
Use of tasers
In the first 10 months of 2015, at least 47 people in the • ECWs should be considered less-lethal weapons.
United States died as the result of being tasered by • ECWs should be used as a weapon of need, not a
law enforcement officers. In 43 of those reported cases, tool of convenience.
the victim was unarmed. Nearly 40% of the victims • Officers should not over-rely on ECWs in situa-
were black, and in 53% of the cases, the victim was tions where more effective and less risky alterna-
displaying signs of intoxication before or after his or tives are available.
her death. • ECWs are just one of a number of tools that police
The Guardian surveyed 29 different police have available to do their jobs, and they should be
departments’ guidelines and compared them with considered one part of an agency’s overall use-of-
the U.S. Justice Department-funded research by the force policy.
Police Executive Research Forum. 8 The Guardian • In agencies that deploy ECWs, officers should
noted that the following police guidelines did not receive comprehensive training on when and how
comply with the research forum’s recommendations. to use ECWs.
These included that • Agencies should monitor their own use of ECWs
and should conduct periodic analyses of practices
• 22 of the 29 departments did not instruct the offi- and trends.
cer to not use more than three shocks in all but • Agencies should consider the expectations of their
exceptional circumstances. community when developing an overall strategy
• None of the department guidelines advised the for using ECWs.
officers that a mandated use of force investiga-
tion should be conduct where a taser was used for Under what circumstances is the use of a taser exces-
more than 15 seconds. sive force? In Mattos v. Agrano, the court held that an offi-
• Only 22 of the departments advised the officer to cer’s use of a taser in drive-stun mode, three times over
not use the taser if the only justification was that the course of less than 1 minute against a driver who
the suspect was fleeing. refused to sign a traffic citation for driving at 32 mph in a
• Only 15 of the departments advised the officer to 20 mph zone, constituted constitutionally excessive force;
not use a taser if the suspect was already in hand- at no time did the driver verbally threaten the officers,
cuffs and did not pose an exceptional threat. she gave no indication of being armed and, being behind
• Eight departments did not require the officers to the wheel of her car, she was not physically threatening;
give a warning when possible before using a taser. at the time that the officer, who knew about and consid-
ered the driver’s pregnancy before tasering her, applied
The Police Executive Research Forum (PERF), with the taser to the driver, she no longer posed even a poten-
support from the U.S. Department of Justice Office of tial threat to the officers’ or others’ safety.*
Community Oriented Policing Services (COPS Office), The electric discharge from a taser is extremely
produced a set of guidelines for the use of conducted painful and overrides the body’s nervous system, usu-
energy devices (CEDs). The first set of guidelines ally causing a suspect to fall down or otherwise cease
was published in 2005 and revised in 2011. Many law
enforcement agencies adopted the guidelines.9 * Mattos v. Agarano, 661 F. 3rd. 433 (9th Cir. 2011).
52 Police Misconduct: A Global Perspective

resistance long enough for the officers to handcuff the injury” to support a Fourth Amendment claim, and that
suspect or otherwise regain control. Since the discharge the pain and puncture marks inflicted by a taser were
of the taser can occur from a short distance away from sufficient to do so.
a suspect, there is less of a need to get close enough The court noted that a taser, when in dart mode,
to employ direct physical force, thus preventing more uses compressed nitrogen to propel a pair of “probes”—
serious injuries both to the suspect and to the officers. aluminum darts tipped with stainless steel barbs con-
However, police are frequently accused of misusing or nected to the taser by insulated wires—toward the
overusing tasers where much less force was all that was target at a rate of over 160 feet per second. Upon strik-
necessary, or of using them on sick or otherwise sensi- ing a person, the taser delivers a 1200 volt, low ampere
tive individuals.10 electrical charge. The electrical impulse instantly over-
The courts have traditionally used the rules set forth rides the victim’s central nervous system, paralyzing the
by the U.S. Supreme Court in Graham v. Connor, dis- muscles throughout the body, and rendering the target
cussed in this chapter, to determine whether or not the limp and helpless.
use of a taser constituted excessive force. In Graham, the When a taser is used in drive-stun mode, the opera-
court held that the “reasonableness” of a particular use tor removes the dart cartridge and pushes two electrode
of force must be judged from the perspective of a rea- contacts located on the front of the taser directly against
sonable officer on the scene, rather than with the 20/20 the victim. In this mode, the taser delivers an electric
vision of hindsight. As in other Fourth Amendment shock to the victim but does not cause an override of the
contexts, however, the “reasonableness” inquiry in an victim’s central nervous system as it does in dart mode.
excessive force case is an objective one; the question is In drive-stun mode, the shock is “extremely painful.”
whether the officers’ actions are “objectively reason- Tasers used in dart mode “constitute an intermediate,
able” in light of the facts and circumstances confront- significant level of force.”
ing them, without regard to their underlying intent or The court in Mattos stated that, when determining
motivation.* whether the use of a taser constituted excessive force,
Tasers should not be used routinely or indiscrimi- the court would consider the governmental interests at
nately. Taser use is limited to situations where an offi- stake and begin with (1) how severe the crime at issue
cer’s safety is a legitimate concern and less painful was, (2) whether the suspect posed an immediate threat
means of subduing difficult individuals are not avail- to the safety of the officers or others, and (3) whether
able. In Orsak v. Metropolitan Airports Commission Airport the suspect was actively resisting arrest or attempting
Police Department, the court held that the pain and punc- to evade arrest by flight.‡
ture marks inflicted by a taser were sufficient to repre- In McKenney v. Harrison,§ a police officer used a stun
sent some minimum level of injury.† In the Orsak case, gun in an attempt to stop a suspect, who was the sub-
the court applied the Graham test by first considering the ject of three misdemeanor arrest warrants, from fleeing
nature and quality of the alleged intrusion and then the through a second story window. The suspect, who was
governmental interests at stake, by looking at mentally ill, died as a result of the injuries he suffered
during the encounter. The court held that the use of the
1. How severe the crime at issue is stun gun was reasonable, despite the fatal consequences
2. Whether the suspect posed an immediate threat to of the incident; the officer used only a single shock, the
the safety of the officers or others suspect attempted to escape through a window only
3. Whether the suspect was actively resisting arrest 6–8 feet away, the alternative of tackling the suspect
or attempting to evade arrest by flight posed a risk to the safety of the officer and might not
have ensured a successful arrest, the officers warned the
In Orsak, a bicyclist brought an action in the state suspect and one officer specifically said “you don’t want
court against the Metropolitan Airports Commission to be tased;” the officer could have believed that the
and an airport police officer, alleging that the officer shock would incapacitate the suspect before he reached
used excessive force, in violation of the bicyclist’s Fourth the window and not while he was in an “elevated posi-
Amendment right to be free from unreasonable sei- tion” and likely to fall from the second story window;
zures, when he ordered a fellow officer to deploy a taser and the officers did not know that the suspect was men-
against the bicyclist. Action was then moved to federal tally retarded.
court. The federal court held that the bicyclist’s claim The Administrator for the McKenny estate in a
for excessive force required the existence of an “actual 1983 action in federal district court federal district
court against two police officers and the city alleging
* Graham v. Connor, 490 U.S. 386 (1989).
† Orsak v. Metropolitan Airports Com’n Airport Police Dept., 2009 ‡ Mattos v. Agarano, 661 F. 3rd. 433 (9th Cir. 2011).
WL 5030776 (D. Minn. 2009). § McKenney v. Harrison, 635 F. 3rd 354 (8th Cir. 2011).
Chapter three: Excessive use of force 53

unlawful entry, excessive force, negligence, and a failure violence. In 2013, there were about 14,000 British officers
to train and supervise. The district court granted the trained to use tasers in England and Wales.
officers and city’s motion for a summary judgment. The According to the news report, incidents where a taser
U.S. Court of Appeals for the Eighth Circuit affirmed was used but “not discharged” included when the weapon
the decision and denied the appeal. The appellate court was drawn and aimed; when it was “arced”—which means
held that the use of force was reasonable by balancing sparking it without having a target; and when it was “red-
“the nature and quality of the intrusion on the indi- dotted”—which means using the targeting mechanism
vidual’s Fourth Amendment interests against the coun- without firing. Most of the cases when a taser was “dis-
tervailing governmental interests at stake.” In so doing, charged” involved the taser being fired—where the probes
the court stated “careful attention to the facts and cir- are shot toward the target still attached to the weapon by
cumstances of each particular case, including the sever- copper wiring. It can also be used to “drive stun”—where
ity of the crime at issue, whether the suspect poses an it is held against the target’s body.
immediate threat to the safety of the officers or others, In 2013, the Independent Police Complaints
and whether [the suspect] is actively resisting arrest or Commission (IPC) investigated 12 taser-related reports
attempting to evade arrest by flight.” The court indi- of misconduct, 3 of which involved death. The IPC noted
cated that it may also consider the result of the force. that, in 2010, there were 68 complaints filed by citizens
The appellate court stated that they must judge the involving law enforcement use of tasers. That figure
reasonableness of the force “from the perspective of a rose to 101 in 2011 but fell to 98 in 2013.12
reasonable officer on the scene, rather than with the 20/20 One of the reported fatal cases involved a 23-year-
vision of hindsight,” and that they must make “allow- old man. On July 11, 2013, the Manchester police were
ance for the fact that police officers are often forced to call to Beard Road in Gorton after receiving reports of
make split-second judgments—in circumstances that a man with a knife. After he was tasered, he stopped
are tense, uncertain, and rapidly evolving—about the breathing and was taken to a hospital where he died. The
amount of force that is necessary in a particular situ- deceased’s employer, who observed the scene, described
ation.” When the suspect made a sudden movement the officers at the scene as being “quite aggressive” and
toward the window, which the officers reasonably inter- he believed that the death was preventable. The incident
preted as an active attempt to evade arrest by flight, the occurred shortly after the deceased had finished his
officers were entitled to use force to prevent his escape work shift at an ice-cream factory. The employer stated
and effect the arrest. Despite the fatal consequences of that he was driving his ice-cream van when he saw his
the incident, the level of force employed was also not employee outside a terraced house with the police. The
considered unreasonable. deceased waved to him and tried to explain to the police
that the employer was his boss. The employer drove off
before the incident escalated. The employer stated that
Taser use in Great Britain the deceased had worked for the company for about
Most British police officers do not carry any kind of 4 years and was a very efficient, good worker. This was
firearm. After a test run in 2007, 10,000 taser guns were the tenth death that had occurred in Britain after police
ordered in 2008 to arm selected members of the U.K. had used a stun gun. One report indicated that, on aver-
law enforcement agencies. This action caused public age, an officer will draw a taser twice a year and dis-
concern in the United Kingdom. For example, Amnesty charge it every 4 years.
International U.K. described tasers as “potentially lethal The Police Superintendents’ Association of England
electrical weapons” that deliver “50,000 volts of electric- and Wales, President of the Police Irene Curtis, said that
ity into a person’s body. The result is excruciatingly using tasers could mean that fewer officers and mem-
painful, causing a person to fall to the ground and, at bers of the public were hurt. Curtis stated: “‘A taser
times, lose control of his or her bodily functions.”11 used appropriately can reduce the amount of time that
A British Broadcasting Corporation (BBC) news officers need to have off because it reduces injuries. It
report in September 2013 noted that the police use reduces harm to the public because if there’s a danger-
of tasers in England and Wales more than doubled ous individual, they can be restrained more quickly.12
between 2009 and 2011. The report indicated that the “And sometimes the only other option is firearms.
devices were used by law enforcement 3328 times in A Taser isn’t a gun. A Taser can in some circumstances
2009 and 7877 times in 2011. The report noted that, of the cause less harm than striking someone with a baton.”’
reported use, the tasers were actually fired about 26% of
the time. Generally, the tasers were pointed or readied
as a warning device. British officers are required to take Legal guidelines on use of force
a training course before being allowed to use a taser and U.S. Supreme Court via Graham v. Connor,
they are told to only deploy them when threatened with 490 U.S. 86 (1989), stated that force at arrest
54 Police Misconduct: A Global Perspective

must be “…objectively reasonable in view of substantive due process standard that the district court
all the facts and circumstances of each par- had used.
ticular case…” The court stated that, where the excessive force
claim arises in the context of an arrest or investigatory
In the 1989 case of Graham v. Connor, the U.S. stop of a free citizen, it is most properly characterized as
Supreme Court established the rules that are used to one invoking the protections of the Fourth Amendment,
determine the legality of law enforcement’s use of force.* which guarantees citizens the right to be secure in their
Graham, a diabetic, asked his friend Berry, to drive him person against unreasonable seizures of the person.
to a convenience store to purchase some orange juice to The court noted, in its decision in Tennessee v. Garner
counteract an insulin reaction. When Graham entered that the court held that the use of deadly force to appre-
the store, he noticed that there was a line of customers hend a fleeing suspect who did not appear to be armed
ahead of him. He hurried out of the store and requested or otherwise dangerous violated the suspect’s constitu-
that Berry drive him to a friend’s house. Connor, a city tional rights, notwithstanding the existence of probable
police officer, became suspicious after seeing Graham cause to arrest.† The court stated that it analyzed the
leave the store in a hurry. constitutionality of the challenged application of force
Connor followed Berry’s car and made an investi- solely by reference to the Fourth Amendment’s prohibi-
gative stop. Connor ordered Graham and Berry to wait tion against unreasonable seizures of the person, hold-
while he checked to find out what happened in the ing that the “reasonableness” of a particular seizure
store. Backup officers arrived and, ignoring Graham’s depends not only on when it is made, but also on how it
attempts to explain, handcuffed him. Later, Graham lost is carried out.
consciousness. The court opined:
Several officers lifted Graham up from behind, car-
ried him over to Berry’s car, and placed him face down Today we make explicit what was implicit in
on the hood. Regaining consciousness, Graham asked Garner’s analysis, and hold that all claims
the officers to check in his wallet for a diabetic decal that law enforcement officers have used
that he carried. In response, one of the officers told him excessive force—deadly or not—in the course
to “shut up” and shoved his face down against the hood of an arrest, investigatory stop, or other “sei-
of the car. Four officers grabbed Graham and threw him zure” of a free citizen should be analyzed
headfirst into the police car. under the Fourth Amendment and its “rea-
A friend of Graham’s brought some orange juice to sonableness” standard, rather than under a
the car, but the officers refused to let him have it. Finally, “substantive due process” approach. Because
Officer Connor received a report that Graham had done the Fourth Amendment provides an explicit
nothing wrong at the convenience store, and the officers textual source of constitutional protection
drove him home and released him. against this sort of physically intrusive gov-
During the encounter, Graham suffered multiple ernmental conduct, that Amendment, not the
injuries. At some point during his encounter with the more generalized notion of “substantive due
police, Graham sustained a broken foot, cuts on his process,” must be the guide for analyzing
wrists, a bruised forehead, and an injured shoulder; he these claims.‡
also claimed to have developed a loud ringing in his Determining whether the force used to
right ear that continues to this day. effect a particular seizure is “reasonable”
Graham filed a 42 U.S.C. 1983 action in the federal under the Fourth Amendment requires a
district court. The district court dismissed the case, careful balancing of “the nature and quality
using the test that in determining when excessive force of the intrusion on the individual’s Fourth
was used, the court should consider whether the force Amendment interests” against the coun-
was applied in a good-faith effort to maintain and tervailing governmental interests at stake.
restore discipline or was maliciously and sadistically Our Fourth Amendment jurisprudence has
used for the purpose of causing harm. long recognized that the right to make an
The U.S. Supreme Court reversed the ruling and arrest or investigatory stop necessarily car-
stated that claims that law enforcement officials have ries with it the right to use some degree of
used excessive force—deadly or not—in the course of an physical coercion or threat thereof to effect it.
arrest, investigatory stop, or other seizure of a free citi- Because “the test of reasonableness under the
zen should be analyzed under the Fourth Amendment’s Fourth Amendment is not capable of precise
“objective reasonableness” standard rather than the
† Tennessee v. Garner, 490 U.S. 386 (1985).
* Graham v. Connor, 490 U.S. 386 (1989). ‡ Graham v. Connor, at p. 395.
Chapter three: Excessive use of force 55

definition or mechanical application, how- ended. And this is exactly what occurred, as during the
ever, its proper application requires careful 10 second span when all the shots were fired, Rickard
attention to the facts and circumstances of never abandoned his attempt to flee. The court noted
each particular case, including the severity of that, had the officers initiated a second round of shots
the crime at issue, whether the suspect poses after an initial round had clearly incapacitated Rickard
an immediate threat to the safety of the offi- and ended any threat of continued flight, or if Rickard
cers or others, and whether he is actively had clearly given himself up, it may have been a dif-
resisting arrest or attempting to evade arrest ferent result. The court dismissed Rickard’s daughter’s
by flight. “The question is “whether the total- 1983 action, holding that the officers acted reasonably.
ity of the circumstances justifies a particular
sort of seizure.”
Mullenix v. Luna
In 2014, the Supreme Court affirmed the guidance In 2015, the U.S. Supreme Court, by an 8-1 vote, made
in the Graham v. Connor decision. The court’s ruling in it harder to sue police officers for use of deadly force
Plumhoff v. Rickard* further embedded the Graham v. against fleeing suspects. The court stated that police
Connor mandate: that any analysis of force under the officers are immune from lawsuits unless it was beyond
Fourth Amendment must be viewed from the perspec- doubt that a shooting was unjustified and clearly
tive of a reasonable officer at the scene, rather than with unreasonable. The case involved a Texas police officer
the 20/20 vision of hindsight. who ignored a warning by his supervisor and took a
Donald Rickard was stopped by a West Memphis, high-powered rifle to a highway overpass to shoot at an
Arkansas police officer because Rickard’s car had only approaching car. The officer apparently intended to stop
one operating headlight. After Rickard refused to give the car, but he killed the driver.
up his driver’s license when asked, and the officer had The Supreme Court said that the benefit of the
noticed Rickard’s nervous appearance and damage to doubt in such cases always goes to the police officer
the car consistent with vehicle theft, the officer ordered who sees a potential deadly situation. It is easy to agree
Rickard to step out of the vehicle. Rather than comply, with Justice Sonia Sotomayor, who dissented. She stated
Rickard sped away. in her dissent that the court adopted a “shoot first and
The ensuing pursuit, ultimately involving six police think later” approach to policing.
cruisers, lasted some 5 minutes, exceeded speeds of It was noted that the decision was announced a
100 mph, and came within close proximity to other few days after two officers killed a 6-year-old boy in
motorists on the road, including swerving through traf- Louisiana. It also came at a time when there was grow-
fic at high speeds. Eventually, Rickard lost control of his ing concern over the police’s use of deadly force. The
vehicle, “spun out” into a parking lot, and collided with case started when Leija fled from a drive-in restaurant
one of the pursuing officer’s vehicles. Now cornered, as the police tried to arrest him. He was considered
Rickard put his car into reverse in an attempt to escape drunk, and believed to be carrying a gun. He led offi-
but collided with another officer’s vehicle. At that cers on a chase that reached 110 mph. Texas Trooper
point, two officers got out of their cars and approached Mullenix heard about the chase and drove to the spot
Rickard’s car, with one of the officers drawing his pistol where the officers were putting down a strip of spikes
and ordering Rickard to stop and get out while knock- to puncture Leija’s tires.
ing on his passenger window. Once again, instead of According to the news reports, Mullenix had
complying, Rickard slammed on the accelerator in an been criticized for not reacting decisively in the past.
apparent attempt to push through the sitting police Apparently, he decided to take decisive action, even
cruiser blocking his car’s escape. At this point, one of though his supervisor advised him against it. He fired
the officers fired three shots into Rickard’s car. Rickard six shots. It was later determined that Leija had been
then reversed in a “180° arc,” narrowly avoiding a div- killed by Mullenix’s shots, four of which struck his upper
ing officer, and managed to maneuver onto a side street body. There was no evidence that any of Mullenix’s
and began to speed away. Other officers on scene then shots hit the car’s radiator, hood, or engine block.
fired 12 shots into the car. Rickard crashed shortly there- The Luna family sued, and the federal trial judge
after, and both he and his passenger died. ruled that the case could go to the jury to decide
As for the 15 shots fired, the court noted that it stands whether Mullenix was reckless or reasonable under the
to reason that, if police officers are justified in firing at a circumstances. The U.S. Court of Appeals for the Fifth
suspect in order to end a severe threat to public safety, Circuit agreed and said that the officer was not entitled
the officers need not stop shooting until the threat has to immunity.
Justice Sotomayor, in her dissent, stated that the
* Plumhoff v. Rickard, 572 U.S. ___ (2014). actions of the court “renders the protections of the
56 Police Misconduct: A Global Perspective

Fourth Amendment hollow” by sanctioning the officer’s allowing officers to use more severe forms of force only on
“rogue conduct.” She noted he had not been trained to actively aggressive suspects, other agencies are quite lib-
shoot at a moving car, and was not told to shoot before eral and place a large amount of discretion in officers hands
the vehicle encountered the spikes across the highway. by allowing them to use nearly all types of force against
According to Justice Sotomayor, “When Mullenix con- nearly all types of resistance faced, short of extreme imbal-
fronted his superior officer after the shooting, his first ance (e.g., allowing a baton strike to a compliant suspect).
words were, ‘How is that for proactive?’ She noted, “The The report noted that Colorado Springs relied on a
glib comment seems to me revealing of the culture this “Situational Force Model” (alternatively referred to as
court’s decision supports when it calls even reasonable— a “wheel” model) as its means of a force continuum in
or even reasonable use of deadly force for no discernible teaching officers when to use force. This model graphi-
gain and over a supervisor’s express order to standby.” cally depicted an officer standing in the middle of a
Apparently, Mullenix was more worried about what circle with various force options surrounding him or
people thought of him than the fact that he had just her. The force options are placed in random order to
killed a man for no reason. indicate that there is no natural progression of force
The court stated that the doctrine of qualified- (e.g., deadly force is placed next to soft hand tactics).
immunity shields officials from civil liability so long as There is no graphical depiction of citizen resistance as
their conduct “does not violate clearly established statu- to which types of force are most appropriate, given dif-
tory or constitutional rights of which a reasonable per- ferent types of resistance. The researchers noted that
son would have known.” And a clearly established right Colorado Springs had the lowest rate of force in relation
is one that is “sufficiently clear that every reasonable to workload. The Colorado Springs Police Department,
official would have understood that what he is doing however, had the highest rate of citizen complaints for
violates that right.” improper force/discourtesy of the police.
Justice Scalia, concurring in judgment, stated: “It is Columbus, Ohio, used a linear design referred to
conceded that Trooper Mullenix did not shoot to wound as the Action–Response to Resistance/Aggression (Use
or kill the fleeing Leija, nor even to drive Leija’s car off of Force) Model in training their officers, which did not
the road, but only to cause the car to stop by destroying graphically depict a force continuum but simply laid out
its engine. That was a risky enterprise, as the outcome eight levels of force (soft hands, chemical spray, elec-
demonstrated; but determining whether it violated the tronic devices, hard hands, impact weapon, canine, less-
Fourth Amendment requires us to ask, not whether it was lethal munitions, and deadly force). Columbus officers
reasonable to kill Leija, but whether it was reasonable to used the least amount of force relative to citizen resis-
shoot at the engine in light of the risk to Leija. It distorts tance. However, Columbus had the second highest rate
that inquiry, I think, to make the question whether it was of citizen complaints for improper force/discourtesy.
reasonable for Mullenix to apply deadly force.” Charlotte–Mecklenburg used a linear design,
According to Justice Sotomayor, “When confronting although their policy directive specifically stated that it
a claim of qualified immunity, a court asks two ques- is “not designed to be a step-by-step progression.” The
tions. First, the court considers whether the officer in model graphically depicted six levels of citizen resistance
fact violated a constitutional right. Second, the court in linear fashion (cooperative, verbal and nonverbal, pas-
asks whether the contours of the right were ‘sufficiently sive, defensive, active aggression, and aggravated active)
clear that a reasonable official would [have understood] on a horizontal axis above another horizontal axis that
that what he is doing violates that right.’ This Court has depicted seven levels of force in linear fashion (profes-
rejected the idea that ‘an official action is protected by sional presence and verbal dialogue and commands, soft
qualified immunity unless the very action in question hands, chemical spray, hard hands, conducted energy
has previously been held unlawful.’ Instead, the crux of devices, impact weapon, and deadly force). Charlotte–
the qualified immunity test is whether officers have ‘fair Mecklenburg had the highest amount of citizen injuries.
notice’ that they are acting unconstitutionally.” As can be seen by a review of the cities’ responses
examined in the report, no uniform measures were used
by the police departments in training officers on the
Research on police use of force use of force. The researchers concluded that, what was
The National Institute of Justice has funded numerous abundantly clear from the many analyses and rankings
studies on the use of force by police officers. The one that conducted, was that there was no ideal (or flawed) pol-
will be discussed in this section is the William Terrill, icy approach across all outcomes. The Terrell et al. study
Eugene Paoline, and Jason Ingram report of 2012.13 The used the matrixes set forth in Figures 3.2a–d to illustrate
report noted that it was difficult to identify a standard the use of force and citizen resistance matrixes.
practice used by police departments across the country. Police departments generally use one of the matrixes
While some departments are quite restrictive in terms of shown in Figure 3.2 to teach officers the appropriate use
Chapter three: Excessive use of force 57

Assaultive
deadly
e
ons

Citizen resistance
Assaultive er esp
abl
nondeadly s on
Rea
Active

Passive

Compliant

Soft–empty
Commands

compliance

maneuvers
Chemical

Electrical
direction
Presence

Striking
Threats

devices
Deadly
Verbal

sprays
hands

Pain
Force options
Citizen resistance/threat Level of corresponding officer force
Assaultive (deadly) Deadly force
Assaultive (nondeadly) Striking maneuvers, electrical devices
Active pain compliance Chemical sprays
Passive verbal commands Soft/empty hand
Compliant presence Verbal direction
(a)

Deadly
Force options Striking
maneuvers Assaultive
Electrical deadly
devices
Chemical
sprays Assaultive
Pain nondeadly
compliance
Commands
Threats Active
Soft–empty
hands

Presence Passive
Verbal
direction
Citizen resistance
Compliant
(b)
compliance

sprays al
ic
mpty

Chem

uvers
mane g
Pain

in
s

Soft–e
hands
eat

Strik

vic cal
Thr

de c t r i
ds

es
an

Ele

Force options
m
m
rb on

y
Co

l
ad
Ve recti

De
al

Active
di
ce

sive
en
es

nd tive
Pas
Pr

dly
no saul
ea
t

e
As
an

ad tiv
pli

de saul
om

ly
As
C

Citizen resistance
(c)

Figure 3.2 Matrixes of the possible use of force by police officers. (b) Linear design (e.g., step, ladder, FLETC model) with
graphic representation. (c) Half wheel example. (d) Wheel example.
58 Police Misconduct: A Global Perspective

Force options

Chemical
sprays

Striking Pain
maneuvers compliance
Assaultive Active
nondeadly
Soft–empty
Electrical
Citizen hands
devices
resistance
Threats
Assaultive Passive
deadly
Deadly Commands
Compliant
Verbal
direction
Presence

(d)

Figure 3.2 (Continued)

PROGRESSIVE DISCIPLINE AND ACCOUNTABILITY IN POLICE AGENCIES

Comments by Matthew O’Deane, PhD14

Officers and employees of law enforcement agencies have the responsibility to provide service to the public
in an appropriate manner. They are, therefore, expected to exercise judgment and discretion and observe
established and accepted standards of personal behavior in the performance of duties and responsibilities.
However, as we all see on almost a daily basis in media reports, the issues of unacceptable job performance,
misconduct, and violations of department policies and procedures occur in agencies all across the nation.
These incidents must be properly addressed, and when found to be true, may result in disciplinary action
ranging from a simple warning up to termination or in some rare cases criminal prosecutions.
Progressive discipline is characterized by addressing unacceptable job performance or conduct with a
corrective and rehabilitative (rather than punitive) approach, by addressing unacceptable job performance
or conduct with informal disciplinary action appropriate to the situation, and by addressing continuing or
repeated instances.
It is the policy of most police agencies to motivate its officers and employees to perform efficiently and
effectively through positive encouragement and recognition for satisfactory, above standard and outstanding
job performance.
There are two major categories of discipline I hope to describe and discuss in this article, they include
Informal and Formal. As we discuss the various options, consider the scenarios involving Officer Smith listed
below. Based on the facts presented, if you were the supervisor what actions you would take, what level of
discipline you would think is appropriate based on the facts you have been provided.

Scenario 1
Officer Smith accepted a free cup of coffee from the clerk at the local 7/11 store. The Chief made an announce-
ment to the entire department the week before that officers are not to accept gratuities of any kind, and if they
do they will be disciplined. Officer Smith was present in the room when the Chief made the announcement.
What level (Informal or Formal) and what action in the category would you take, and explain why?

Scenario 2
Officer Smith backed his patrol car into a light pole in a parking lot denting the bumper. Officer Smith parked
the car at the end of the shift and never reported the damage. When asked about the damage from his Sergeant,
Officer Smith said he did not know anything about it. The next day a citizen walked into the lobby and had a
cell phone video of the officer hitting the pole, getting out of the car and looking at the damage, then driving
away. What level (Informal or Formal) and what action in the category would you take, and explain why?
Chapter three: Excessive use of force 59

Scenario 3
Officer Smith backed his patrol car into a light pole in a parking lot denting the bumper. He immediately
called his supervisor and reported the damage and completed all of the required reports. Officer Smith had a
similar accident three months before which he attributed to inattention while driving. Officer Smith received
a counseling for the prior accident which was documented in his file. What level (Informal or Formal) and
what action in the category would you take, and explain why?

Scenario 4
Officer Smith was seen going into the evidence room of the police facility after hours. When he exited the
supervisor asked what he was doing and could see that Officer Smith had an item of evidence sticking out of
his gym bag. The evidence was a kilo of cocaine that had been impounded and was not checked out by Officer
Smith and Officer Smith had no reason for having the evidence. What level (Informal or Formal) and what
action in the category would you take, and explain why?

Progressive discipline: Informal

• Counseling
• Oral warning
• Written warning

Counseling and oral and written warnings are the most widely used methods of maintaining appropriate
standards and are the first steps in progressive discipline. Counseling is the most common, and usually the
most positive and timely means of addressing unacceptable performance. Counseling should be character-
ized by a clear statement of the unacceptable aspects of the employee’s job performance or conduct, using a
tone of inquiry rather than accusation.
There should be an opportunity for the employee to provide an explanation and presentation of mitigat-
ing circumstances if he or she feels that they are relevant. A restatement of expected standards of job per-
formance should be conducted with confidentiality and privacy, with respect to the location and subject of
discussion.
For some supervisors, the process of meeting with their officers and disciplining them is a bit uncomfort-
able, or they are not well-versed as to how this process should be conducted. The following is a suggested
process of what a supervisor can do before, during, and after a meeting with an employee in informal disci-
pline situations.

Progressive discipline: The meeting process

Before the meeting
• Inform your chain of command and employee relations officer.
• Arrange to meet with the employee privately.
• Do not discipline an employee in public or in front of other workers.
• Prepare for the meeting by reviewing your notes and files on the specific incident(s) and The problem(s)
in question and any past discipline taken, either verbal or written.
• Bring any resources or tools that will assist the employee.

During the meeting

• Explain to the employee why you have called the meeting (if the employee doesn’t know already).
• State the specific problem in terms of actual performance and desired performance.
• Explain the impact on others or on the department.
• Review your progressive discipline policy/program with the employee, and Explain what steps have
already been taken, and what the next step is.
• Give the employee a chance to respond, explain, and defend his or her actions.
• Acknowledge the employee’s story and be sure to include it in your notes of the discipline session.
• Tell the employee that you expect his or her behavior to change. Give specific examples and suggestions.
• Indicate your confidence in the employee’s ability and willingness to change the behavior.
60 Police Misconduct: A Global Perspective

• Have the employee repeat back to you or otherwise confirm that he or she understands the problem and
is clear on what changes are expected.
• Reassure the employee that you value his or her work and that you want to work with the employee to
make sure that he or she can continue to work at your business.

After the meeting

• Using your notes from the session, write a memo or other documentation that summarizes the
conversation.
• Give the employee a copy of the document no later than the end of the day following the conversation.
• If the employee has other supervisors, distribute copies to them but emphasize that the information is
confidential and not to be shared with anyone else.
• Monitor the employee’s behavior and performance to make sure that the problem has been corrected.
• Meet with the employee, as appropriate, to discuss progress and provide any additional feedback or
tools.

Progressive discipline: Verbal warnings

Despite the fact that the warning is a verbal one, this does not mean that it should not be documented.
Verbal warnings are a building block to more formal warnings in the future. All documentation should
include

• The employee’s name

• The date of the verbal warning
• The specific offense or rule violation
• The date(s) of the incident
• A specific statement of the expected performance
• An explanation given by the employee, or other information that is significant

Progressive discipline: Written warning

A written warning is more serious than a verbal warning and represents a progression in the progressive
discipline process. In documenting a written warning, include

• The employee’s name

• The date of the conversation
• The specific offense or rule violation
• References to previous conversations and verbal warnings about the problem
• A specific statement of the expected performance
• An explanation given by the employee or other information that is significant
• A statement indicating your confidence in the employee’s ability to perform properly in the future
• The employee’s signature; if the employee refuses to give it, include a note on the signature line indicat-
ing your attempt to get the employee to sign and his or her refusal to do so

Progressive discipline: Formal

• Reprimand
• Transfer to another position in the same class
• Suspension without pay or with reduced pay
• Demotion (reduction in rank or pay)
• Termination (removal)

The more severe forms of disciplinary action, that is, written reprimand, suspension, demotion, and ter-
mination, must be administered appropriately according to established county rules and regulations. It is
essential that the appointing authority or his or her designee carefully assesses each instance of unacceptable
performance or conduct in a precise and thorough manner, consulting their departmental human resources
officer and/or group human resources director, as necessary.
Chapter three: Excessive use of force 61

Serious instances of unacceptable job performance or conduct may require formal disciplinary action at
the outset to provide an appropriate remedy or to protect the agency or other employees.
The patient, diligent, consistent, equitable, and appropriate application of department rules and regula-
tions is the foundation for exercising effective discipline.
An appointing authority who is considering disciplinary action and who desires additional guidance
on the applicable policies or procedures should contact their Internal Affairs, Labor Relations Division, or
Department of Human Resources for assistance.
Supervising members of police agencies (sergeants, lieutenants, and captains) should avoid, as far as
circumstances warrant, censuring a subordinate in the presence of others, and should support a subordinate
when that member is acting within their rights.
Performance reports are not considered a disciplinary device. However, ratings of “improvement needed”
or “unsatisfactory” performance or conduct on a regular or supplemental report can support disciplinary
action.
Formal discipline procedures and processes require police supervisors to have a solid understanding of
police officer rights to ensure that the discipline is administered in a fair and equitable manner. Formal inci-
dents are typically investigated by a police agency internal affairs division, as opposed to a line supervisor,
but this may not be the case in all agencies.
When investigating a complaint against an officer which may result in formal discipline, it is critical that
the police supervisor establish the truth, maintain integrity, and remain fair during the investigative process.

of force. There is no correct or ideal continuum design in • Improper, abusive, illegitimate, and unnecessary use of
existence. Rather, agencies across the country simply pre- force are terms that describe situations in which
fer one design over another. These designs are basic exam- an officer’s authority to use force has been mishan-
ples of some of the continuum designs currently in use. An dled in some general way.
agency’s continuum may vary to some extent in terms of • To establish an excessive use of force claim, a
the number and location of resistance/force options. plaintiff must demonstrate an injury (injury must
be more than a de minimis injury), which resulted
directly and only from the use of force that was
Summary excessive to the need, and where the force used
• With the explosion of mass media, any incidents in was objectively unreasonable.
which the police are alleged to have used excessive • The use of excessive force by an officer is generally
force will be extensively covered in the media. considered a crime of assault or battery.
• Officers need to realize that, in present-day polic- • Assault is the crime of threatening to commit a
ing, they are working under the microscope of the battery or an attempt to commit a battery.
media. • The crime of battery is generally defined as the
• Any use of force will be examined in multiple dif- unlawful and offensive touching of another
ferent ways to see if the officer(s) used excessive person.
force. • The electric discharge of a taser is extremely pain-
• Law enforcement officers are authorized to use ful and overrides the body’s nervous system, usu-
force in specified circumstances. They are trained ally causing a suspect to fall down or otherwise
to use force under appropriate conditions. cease resistance long enough for the officers to
• According to the IACP, there is no universally handcuff the suspect or otherwise regain control.
agreed-upon definition of the use of force. It • The courts have traditionally used the rules set
defines the use of force as the amount of effort forth by the U.S. Supreme Court in Graham v.
required by the police to compel compliance by an Connor to determine whether or not the use of a
unwilling subject. taser has constituted excessive force.
• Police brutality is a phrase used to describe instances • In Graham, the court held that the “reasonableness”
of serious physical or psychological harm to civil- of a particular use of force must be judged from
ians, with an emphasis on cruelty or savageness. the perspective of a reasonable officer on the scene,
• The term excessive force is used to describe situa- rather than with the 20/20 vision of hindsight.
tions in which more force is used than is allow- • While some departments are quite restrictive in
able, when judged in terms of administrative or terms of allowing officers to use more severe forms
professional guidelines or legal standards. of force only on actively aggressive suspects, other
62 Police Misconduct: A Global Perspective

agencies are quite liberal and place a large amount Did the officers’ treatment of Koeiman constitute exces-
of discretion in officers’ hands by allowing them to sive force?
use nearly all types of force against nearly all types [See Koeiman v. City of New York, 829 N.Y.S. 2nd
of resistance faced, short of extreme imbalance (e.g., 24 (2007)]
allowing a baton strike to a compliant suspect).
Practicum three
Practicums RIVERSIDE, CA—A former officer with the San
Practicum one Bernardino Police Department (SBPD) was sentenced
today to 300 months in federal prison for violating the
Kenneth Siler filed a suit against the Crestview Police civil rights charges of two women he forced to perform
Department and several of the police officers alleging sex acts while he was in uniform.
the excessive use of force and battery. It appeared that Jose Jesus Perez, 47, of Menifee, received the sen-
Siler refused to obey an officer’s order to move from an tence from U.S. District Judge Virginia A. Phillips.
area where an ambulance and its crew were attending Perez was found guilty by a federal jury in May of
to an injured person. The officer placed his hand on two felony counts and one misdemeanor count of depri-
Siler’s chest to make him back away. vation of rights under color of law for sexually assault-
As trial judge how would you rule regarding the excessive ing two victims in 2011. The jury determined that both
force and the battery claims? felony offenses involved aggravated sexual abuse and
[See: Siler v. Floyd, 476 Fed. Appx. 710 (11th cir. 2012)] that one attack involved a kidnapping and bodily injury.
The evidence presented during a week-long trial
showed that Perez groped a woman and coerced her to
Practicum two
perform oral sex on him by using force against her on
On the evening of October 17, Koeiman entered the April 25, 2011.
44th precinct station house in the Bronx. Police Officer The jury also found that Perez had unlawful sexual
Mondello approached Koeiman, who was under the intercourse with another woman on two occasions in
influence of alcohol, and asked whether he could August 2011.
assist him. Koeiman, without provocation or warning, The testimony at trial indicated that the two vic-
punched Officer Mondello in the face. Officer Mondello tims, who worked as prostitutes in the City of San
took a step back before attempting to restrain Koeiman Bernardino, engaged in the sex acts demanded by Perez
by grabbing his shoulders. Another police officer, out of fear of arrest because he was a police officer. One
Officer Carson, who witnessed Koeiman punch Officer victim testified that he forced her to perform oral sex on
Mondello, “jumped” on both Koeiman and Officer him in his patrol car, and the other victim testified that
Mondello. Officer Carson took this action because he he forced her to have intercourse with him next to his
wanted to get Koeiman on the floor as quickly as possi- patrol car in a vacant lot and again in motel rooms.
ble, which would allow the officers to restrain Koeiman A third woman testified that Perez had aggressively
and prevent him from punching either of the officers. solicited sex from her while he was in uniform when
Notably, both officers testified that Koeiman was resist- he found her stranded in San Bernardino. The three
ing Officer Mondello’s efforts to subdue him. As a result women each testified that they feared repercussions if
of Officer Carson’s action, the three men fell to the floor, they did not comply with Perez’s demands.
thus permitting the officers to handcuff Koeiman. The Perez “has a long and escalating history of inappropri-
officers then picked Koeiman up off the floor. Both offi- ate sexual behavior towards women,” prosecutors wrote
cers insisted that neither of them punched, kicked, or in a sentencing brief that noted a lengthy history of mis-
otherwise struck Koeiman. The entire incident—from conduct toward women. “Although defendant is no lon-
the moment Koeiman struck Officer Mondello to the ger a police officer and is no longer able to abuse a position
moment the officers picked Koeiman up off the floor— of public authority to his own criminal ends, he remains
lasted between 5 and 15 seconds. the same person—someone who lacks basic respect for
After getting Koeiman to his feet, Officer Carson the humanity and autonomy of women. Unfortunately,
noticed that one of Koeiman’s legs was injured. The offi- sexual predators in this county do not lack for means of
cers escorted Koeiman to another room in the precinct carrying out their crimes, and a badge is unnecessary
and summoned an ambulance for Koeiman. Emergency for their purposes. Defendant poses a greater danger
medical technicians arrived at the precinct, immobi- than most sexual predators; although he lacks a badge,
lized the decedent’s injured leg, and transported him he retains his police tactical training and knowledge of
to a local hospital. Koeiman was diagnosed with a com- police investigative methods. Defendant remains a threat
minuted fracture of the left femur. to the public regardless of his employment.”
Chapter three: Excessive use of force 63

Perez became a police officer in 1997, when he was 3. Matthew J. Hickman (2006) Citizen complaints about
hired by the Los Angeles Police Department (LAPD). police use of force. Bureau of Justice Statistics Special
Perez worked for the LAPD until 2008, when he went to Report, Washington, DC: Bureau of Justice Statistics, p. 1.
4. International Association of the Chiefs of Police (2001)
work for the SBPD. Perez was released from employment
Police Use of Force in America. Alexandria, VA: IACP.
by the SBPD in December 2012 and has been in custody 5. National Institute of Justice Report “Use of Force by
since he was arrested in September 2013 in Texas. Police” (1999) Report NCJ 176330, p. 4.
The investigation into Perez was conducted by the 6. Kimberly T. Owens (Fall, 2000) Maryland’s common
SBPD and the Federal Bureau of Investigation (FBI). law right to resist unlawful arrest: Does it really exist?
What actions should be taken to reduce a city’s University of Baltimore Law Review, 30, 213.
chances of hiring and retaining officers such as Perez? 7. Don Baldwin (November 4, 2015) Video cited as more offi-
cers face charges in killings. St. Louis Post Dispatch, p. C-1.
8. The Guardian website at http://www.theguardian.
com/us-news/2015/nov/05/police-tasers-deaths-the-
Discussion questions counted. Accessed on November 5, 2015.
1. What constitutes “excessive force”? 9. Police Executive Research Forum (March, 2011) 2011
2. Explain the meaning of “qualified immunity.” Electronic Control Weapon Guidelines. Washington, DC:
3. When is it permissible for a police officer to use a Police Executive Research Forum. pp. 11–15.
10. Jay Zitter (2009) When does use of taser constitute viola-
taser?
tion of constitutional rights. 45 American Law Reports,
4. Explain the use of force matrixes. 6th ed.
5. When may a police officer use force to arrest a per- 11. As reported by CNN Website at http://edition.cnn.
son for a minor offense? com/2008/WORLD/europe/11/24/britain.tasers/index.
6. Explain the Graham Rule. html. Accessed on October 12, 2015.
12. As reported on BBC News Website at http://www.bbc.
com/news/uk-24029706. Accessed on October 12, 2015.
References 13. William Terrill, Eugene Paoline, and Jason Ingram
1. As reported by Jerome H. Skolnick and James J. Fyre (2001) Final technical report draft: Assessing police use
(1993) Above the Law: Police and the Excessive Use of Force. of force policy and outcomes. Document No. 237794.
New York: Free Press, p. 1. Washington, DC: DOJ.
2. Christine Byers (October 28, 2015) Former St. Louis 14. Matthew O’Deane currently works for the San Diego
prosecutor admits covering up officer’s assault on hand- County, California District Attorney Office. This article
cuffed suspect. St. Louis Post Dispatch, p. A-1. was written especially for this text.
chapter four

Use of deadly force

Learning objectives the reason why so many civilians are shot by police offi-
cers. Unless America can either reduce its colossal gun
After studying this chapter, the reader should under- ownership rates or fix its deep social problems, shoot-
stand the following concepts and issues: ings of civilians by police—justified or not—seem sure
to continue.” (Box 4.1).
• How frequently law enforcement officers use
deadly force in the United States compared with
other countries. When is the use of deadly
• The rules on the use of deadly force by law enforce- force justified?
ment officers.
• When is the use of deadly force justified? The leading case on when the police may use deadly
• The Federal Bureau of Investigation (FBI) policy force is the U.S. Supreme Court case of Tennessee v.
on the use of deadly force. Garner.* In the Garner case, a father, whose son was shot
• The guidelines issued by the U.S. Supreme Court by a police officer as he was fleeing from the burglary of
in Tennessee v. Gardner. an unoccupied house, brought a wrongful death action
under the federal civil rights statute against the police
officer who fired the shot, the police department, and
others. The U.S. District Court rendered judgment for
Introduction the defendants, and the father appealed. The court of
An article published by Economist magazine, shortly appeals reversed and remanded. The Supreme Court,
after the Ferguson shooting, indicated that “last Justice White, when writing the majority opinion held
year, in total, British police officers actually fired that
their weapons three times.” The number three reso-
nated when the private autopsy of Michael Brown, 1. Apprehension by use of deadly force is a seizure,
the teenager killed by Ferguson, Missouri, police offi- subject to the Fourth Amendment’s reasonable-
cer Darren Wilson concluded that Brown was shot at ness requirement.
least six times. Many tweets contrasted the numbers, 2. Deadly force may not be used unless it is neces-
saying Wilson had fired more shots at Brown than sary to prevent escape and the officer has probable
British police officers had discharged in all of 2013.1 cause to believe that the suspect poses a signifi-
The article noted that, even after adjusting for the cant threat of death or serious physical injury to
smaller size of Britain’s population, British citizens are the officer or others.
about 100 times less likely to be shot by a police offi- 3. The Tennessee statute under authority of which
cer than American citizens. The article also pointed the police officer fired the fatal shot was unconsti-
out that, between 2010 and 2014, the police force of tutional insofar as it authorized the use of deadly
Albuquerque, New Mexico, shot and killed 23 citizens. force against an apparently unarmed, nondanger-
This was seven times more than the number of British ous fleeing suspect.
killed by all of England and Wales 43 police forces. 4. The fact that the unarmed suspect had broken into
According to the article, in 2012, British officers actu- a dwelling at night did not automatically mean
ally fired their weapons only one time whereas the FBI that he was dangerous.
reported that 410 Americans were justifiably killed by
the police. Justice White noted that the Tennessee statute
The article also noted that American police officers is unconstitutional insofar as it authorizes the use
are also far more likely to be killed than British police of deadly force against, as in this case, an apparently
officers. For example, in 2013, 30 American police offi- unarmed, nondangerous fleeing suspect; such force
cers were shot and killed in the line of duty compared may not be used unless necessary to prevent escape and
with none in the England and Wales police forces. The where the officer has probable cause to believe that the
article stated: “Add to that a hyper-militarized police
culture and a deep history of racial strife and you have * Tennessee v. Garner, 471 U.S. 1 (1985).

65
66 Police Misconduct: A Global Perspective

BOX 4.1 WHAT IS THE FBI’S POLICY ON THE USE OF DEADLY FORCE BY ITS SPECIAL AGENTS?
FBI special agents may use deadly force only when necessary—when the agent has a reasonable belief that
the subject of such force poses an imminent danger of death or serious physical injury to the agent or another
person. If feasible, a verbal warning to submit to the authority of the special agent is given prior to the use of
deadly force.

suspect poses a significant threat of death or serious determination of guilt and punishment. Against these
physical injury to the officer or others. interests range governmental interests in effective law
In this case, Justice White stated that, whenever an enforcement.
officer restrains the freedom of a person to walk away, The court noted the argument that overall violence
he has seized that person. While it is not always clear would be reduced by encouraging the peaceful submis-
exactly when minimal police interference becomes a sion of suspects who know that they may be shot if they
seizure, there can be no question that apprehension by flee. Effectiveness in making arrests requires a resort to
the use of deadly force is a seizure subject to the reason- deadly force, or at least the meaningful threat thereof.
ableness requirement of the Fourth Amendment. “Being able to arrest such individuals is a condition prec-
The court noted that a police officer may arrest a edent to the state’s entire system of law enforcement.”
person if he or she has probable cause to believe that that The court stated that, without in any way dispar-
person committed a crime. Petitioners and appellants aging the importance of these goals, they are not con-
argue that, if this requirement is satisfied, the Fourth vinced that the use of deadly force is a sufficiently
Amendment has nothing to say about how that seizure productive means of accomplishing them to justify the
is made. This submission ignores the many cases in killing of nonviolent suspects. The use of deadly force
which the court, by balancing the extent of the intrusion is a self-defeating way of apprehending a suspect and
against the need for it, has examined the reasonableness so setting the criminal justice mechanism in motion. If
of the manner in which a search or seizure is conducted. successful, it guarantees that that mechanism will not
To determine the constitutionality of a seizure, a court be set in motion. And while the meaningful threat of
must balance the nature and quality of the intrusion on deadly force might be thought to lead to the arrest of
the individual’s Fourth Amendment interests against more live suspects by discouraging escape attempts,
the importance of the governmental interests alleged to the presently available evidence does not support this
justify the intrusion. The court has described “the bal- thesis. The fact is that a majority of police departments
ancing of competing interests” as “the key principle of in this country have forbidden the use of deadly force
the Fourth Amendment.” Because one of the factors is against nonviolent suspects. If those charged with the
the extent of the intrusion, it is clear that reasonableness enforcement of the criminal law have abjured the use of
depends not only on when a seizure is made, but also on deadly force in arresting nondangerous felons, there is a
how it is carried out. substantial basis for doubting that the use of such force
Applying these principles to particular facts, the is an essential attribute of the arrest power in all felony
court held that governmental interests did not support cases. Petitioners and appellants have not persuaded us
a lengthy detention of luggage and an airport seizure that the shooting of nondangerous fleeing suspects is so
not “carefully tailored to its underlying justification, or vital as to outweigh the suspect’s interest in his or her
detention for fingerprinting without probable cause.” On own life.
the other hand, under the same approach, it has upheld The court stated that the use of deadly force to
the taking of fingernail scrapings from a suspect, admin- prevent the escape of all felony suspects, whatever the
istrative housing inspections without probable cause to circumstances, was constitutionally unreasonable. The
believe that a code violation will be found, and a blood court stated that it was not better that all felony suspects
test of a drunk-driving suspect. In each of these cases, die than that they escape. Where the suspect poses no
the question was whether the totality of the circum- immediate threat to the officer and no threat to others,
stances justified a particular sort of search or seizure. the harm resulting from failing to apprehend him or her
The court held that, notwithstanding probable does not justify the use of deadly force to do so. It is
cause to seize a suspect, an officer may not always do no doubt unfortunate when a suspect who is in sight
so by killing him or her. The intrusiveness of a seizure escapes, but the fact that the police arrive a little late or
by means of deadly force is unmatched. The suspect’s are a little slower afoot than the suspect does not always
fundamental interest in his or her own life need not be justify killing the suspect. A police officer may not seize
elaborated on. The use of deadly force also frustrates the an unarmed, nondangerous suspect by shooting him
interest of the individual, and of society, in the judicial or her dead. The Tennessee statute is unconstitutional
Chapter four: Use of deadly force 67

BOX 4.2 THE RULE IN TENNESSEE V. GARNER CASE

Deadly force may not be used unless necessary to prevent escape and where the officer has probable cause to
believe that a suspect poses a significant threat of death or serious physical injury to the officer or to others.

insofar as it authorizes the use of deadly force against The Bureau recognizes that members may be
such fleeing suspects. required to use deadly force when their life or the
The court stated that, where the officer has probable life of another is jeopardized by the actions of others.
cause to believe that a suspect poses a threat of seri- Therefore, state statute and Bureau policy provide for the
ous physical harm, either to the officer or to others, it use of deadly force under the following circumstances:
is not constitutionally unreasonable to prevent escape
by using deadly force. Thus, if the suspect threatens 1. Members may use deadly force to protect them-
the officer with a weapon or there is probable cause to selves or others from what they reasonably believe
believe that he or she has committed a crime involving to be an immediate threat of death or serious phys-
the infliction or threatened infliction of serious physical ical injury.
harm, deadly force may be used if necessary to prevent 2. A member may use deadly force to effect the cap-
escape if, where feasible, some warning has been given. ture or prevent the escape of a suspect where the
As applied in such circumstances, the Tennessee statute member has probable cause to believe that the sus-
would pass constitutional muster. pect poses a significant threat of death or serious
The court disagreed with the principle that the physical injury to the member or others.
Fourth Amendment must be construed in light of the 3. If feasible, some warning has been given.
common-law rule, which allowed the use of whatever
force was necessary to effect the arrest of a fleeing felon, Specifically, Price argued that the city’s policy,
though not a misdemeanant. expressed in G.O. § 1010.10, where an officer reasonably
The court noted that there is an additional reason believes that a suspect poses an immediate threat of
why the common-law rule cannot be directly translated serious physical injury or death falls short of the proba-
to the present day. The common-law rule was developed ble cause requirement set forth in the Tennessee v. Garner
at a time when weapons were rudimentary. Deadly force case. Price claimed that the city’s policy only requires
could be inflicted almost solely in a hand-to-hand strug- that the officer reasonably believes that he or she is con-
gle during which, necessarily, the safety of the arresting fronted by an immediate threat. Price argues that rea-
officer was at risk. Handguns were not carried by police sonable belief is of a different, and lesser, standard than
officers until the latter half of the 1900s. Only then did probable cause.
it become possible to use deadly force from a distance The appellate court held that it was satisfied that
as a means of apprehension. As a practical matter, the the case law did not support Price’s contention that
use of deadly force under the standard articulation of reasonable belief is of a lesser standard than probable
the common-law rule now has an altogether different cause, as a matter of law. Both standards are objective
meaning—and harsher consequences—than in past and depend on the circumstances confronting the offi-
centuries (Box 4.2). cer rather than on the officer’s mere subjective beliefs or
intentions, however sincere. The case law requires that
a reasonable officer under the circumstances believes
Probable cause himself or herself, or others, to face a threat of serious
In Price v. Sery,* Gwen Price, as the personal representa- physical harm before using deadly force. Moreover, as
tive of a deceased motorist, brought suit against the City the Supreme Court has stated, the touchstone of the
of Portland and others. The deceased was shot by a city inquiry is “reasonableness,” which does not admit an
police officer during a routine traffic stop. Price alleged “easy-to-apply legal test.” The city’s policy requires
improper use of deadly force by the officer. that an officer has a reasonable belief in an “immedi-
Portland Police Bureau (PPB) policy, training, and ate threat of death or serious physical injury,” and thus
discipline practices, with respect to the use of lethal comports with the requirement.
force, are relevant to the constitutional claims. The
use of deadly force is governed by PPB General Order
(GO) § 1010.10, the relevant part of which reads as
Who is killed by the police?
follows: According to writer Al Vicens, Native Americans get
shot by cops at an astonishing rate and the media rarely
* 513 F.3rd 962 (2008). mentions it. Vicens uses as an example the killing of
68 Police Misconduct: A Global Perspective

Paul Castaway, a Lakota Sioux, in July 2015 in down- According to the center, the five states or juris-
town Denver. According to the reports, the police stated dictions where a person is most likely to be killed by
that a man was coming toward an officer with a knife, law enforcement are New Mexico, Nevada, District of
but the man’s family and witnesses at the scene dis- Columbia, Oregon, and Maryland. California ranks
puted those claims and stated that he was pointing the sixth from the top. Alabama, North Carolina, New
knife at himself. Witnesses at the scene stated that he Jersey, Massachusetts, and New York are the safest (or,
was holding the knife to his own throat and was not perhaps, the worst at reporting).3
threatening the officers.2 The center reports that the major counties and urban
He was shot four times and died later that night. jurisdictions with the highest rates of law enforcement
Castaway’s mother had called 911 after her son caused a killings are Wyandotte County (Kansas City); Denver
disturbance at her apartment, which was about a block County, Baltimore (city), Norfolk (city); and Anderson
away from the mobile home park where he was shot. County, South Carolina; interestingly, Harris County
She said that her son suffered from a mental illness (Houston) has the lowest reported rate. Fresno, Riverside,
and an addiction, and that she had called the police for Kern, San Bernardino, and San Diego have the highest
help because he was experiencing some sort of mental rates in California; Contra Costa has the lowest.
episode. His mother reported that Castaway struggled The racial group most likely to be killed by law
with schizophrenia and alcoholism. enforcement is Native Americans, followed by African
According to the writer, Castaway’s death brings Americans, Latinos, whites, and Asian Americans.
up a rarely discussed aspect of the ongoing conversa- Latinos are victimized by police killings at a level
tion around police brutality in the United States–Native 30% above average and 1.9 times the rate of white,
Americans are more likely than most other racial groups non-Latinos.
to be killed by police. According to the Center on Juvenile One-fourth of those killed by law enforcement are
and Criminal Justice, a nonprofit organization that studies under the age of 25, 54% are aged 25–44, and nearly one-
incarceration and criminal justice issues, police kill Native fourth are aged 45 and older. Teenagers comprise only
Americans at a higher rate than any other ethnic group.3 7% of all police killings. The risk of an older teen aged
The center’s analysis relied on data from the 15–19 being killed by police is about the same as for a
Centers for Disease Control and Prevention and the 50 year old; for a younger teen aged 10–14, the risk is
National Center for Health Statistics. It found that Native about the same as for an 80 year old.
Americans, making up just 0.8% of the population, are the It is interesting to note that police killings of African
victims in 1.9% of police killings. When the numbers are Americans aged 25 years and older have declined by
broken down further, they reveal that Native Americans 61% from the late 1960s, but that the rates for younger
make up three of the top five age groups killed by law African Americans are still 4.5 times higher than for
enforcement. According to the center, the following other races and ages.
groups are most likely to be killed by law enforcement: An attorney with the Lakota People’s Law Project
stated “You can tell they’re shooting out of fear. If it’s
• African Americans aged 20–24: 7.1 per million not out of hate, for some reason they’re pulling the trig-
population per year ger before determining what the actually is. Something
• Native Americans aged 24–35: 6.6 per million does need to happen. Somebody does need to take a
population per year look and we need help.”2
• Native Americans aged 35–44: 5.9 per million
population per year
• African Americans aged 25–34: 5.6 per million Deaths that caused public outcry
population per year According to a Washington Post analysis on police use of
• Native Americans aged 20–24: 4.6 per million deadly force, only a small number of shootings involv-
population per year ing deadly force by the police occur under circum-
• Latinos aged 20–24: 4.4 per million population per stances that raise doubts and draw public outcry. The
year Post states that the vast majority of individuals shot and
• Latinos aged 25–34: 3.2 per million population per killed by police officers were armed with guns and were
year killed after attacking police officers or civilians or mak-
• African Americans aged 35–44: 3.0 per million ing other direct threats.4 It also claimed that Jim Pasco,
population per year the executive director of the National Fraternal Order of
• African Americans aged 15–19: 2.9 per million Police, confirmed the Post’s finding.
population per year The Post reported that, in 74% of all fatal police shoot-
• Average, all races and ages: 1.2 per million popula- ings, the victims had already fired shots, brandished a
tion per year gun, or attacked a person with a weapon or with their
Chapter four: Use of deadly force 69

bare hands. Also, 16% of the shootings happened after During the period of time covered by the Post’s
incidents that did not involve firearms or active attacks research, there were 205 cases in which no opinions
but featured other potentially dangerous threats. These could be formed regarding the circumstances of the
shootings were mostly of individuals who brandished killing because of a lack of information or because of an
knives and refused to drop them. The majority of the 5% ongoing investigation (Box 4.3).
of cases that caused public outcry involved victims who
failed to follow police orders, made sudden movements,
or were accidentally shot. In 4% of the total number of Deaths where the police were
shootings, the Post stated that their analysis was unable held liable in civil court
to determine the circumstances of the shooting because As noted in a journal article by H. Lee and M.S. Vaughn,
of limited information or ongoing investigations. the police use of deadly force is a significant concern for
The Post stated that it would track all fatal shoot- municipal policymakers and law enforcement agencies.6
ings by the police while on duty, and reported that both Police agencies and municipal entities may be held civ-
the FBI and the U.S. Attorney General acknowledged illy liable under Section 1983 for force that is not objec-
the need to more thoroughly collect data on fatal police tively reasonable; for failure to train; and for policies,
shootings. customs, and practices that cause constitutional injury.
In the Post’s study of 595 fatal police shootings in the Lee and Vaugh analyzed 86 cases from the U.S. District
partial year 2015, in which a person fired a gun, bran- Courts and the U.S. Courts of Appeals on Section 1983
dished a gun, or attacked an officer or individual with a liability regarding police use of deadly force. Their
weapon or bare hands research focused specifically on police firearm use in
deadly force situations, highlighting how managerial
• The most common encounter (242 cases) occurred disorganization and administrative breakdown impacts
when individuals pointed or brandished a gun but departmental decision-making.
had not fired a weapon at a person. The researchers noted that federal courts are more
• The next largest group (224 cases) involved situ- likely to find the police liable when they use deadly
ations where the victim was firing a gun at an force against unarmed, nonviolent, and nonthreatening
officer or a bystander. In 87% of these cases, the fleeing suspects. They noted that oftentimes, long and
gunfire was directed at the officer. dangerous high-speed chases and foot pursuits make
• In 129 cases, the individuals had attacked police police officers frustrated because of “adrenalin over-
officers or civilians but had no gun. They were load,” which leads to the application of excessive force.
armed instead with weapons such as knives, Police must not use deadly force against suspects who
hatchets, chemical agents, and vehicles. Seventy are surrendering. While most police–citizen encounters
percent of these attacks were directed toward the begin with misdemeanor or nonviolent crimes, police
police. officers sometimes believe that their safety is threatened

BOX 4.3 WHEN COPS KILL: THE PSYCHOLOGY OF DEADLY-FORCE ENCOUNTERS

LAURENCE MILLER
According to a research study by Dr. Laurence Miller, 85 percent of the police officers killed in the line of
duty never discharged their service weapons. He concludes that this indicates that officers are far from being
trigger-happy gunslingers, many police officers hesitate in using justifiable deadly force, even when it puts
their own safety in jeopardy.
Dr. Miller notes that police culture is still important. According to him, all things being equal three fac-
tors have found to be associated with fewer police deadly force encounters in a community. Those are:

• The higher overall educational level of the rank and file patrol force.
• Higher investment in mental health response and verbal crisis intervention training.
• Greater efforts at police-community relationship building.

If these three factors reduce police deadly force, why are more police departments not using these factors to reduce the
use of deadly force? 5
70 Police Misconduct: A Global Perspective

when it is not, thus creating conditions for unnecessary of suspects and offenders from their initial contact with
deadly force. law enforcement personnel through to the time that
Cases where they identified that the individual they are incarcerated in jail or prison.7
officer was liable were classified under the following ARD data are collected to quantify and describe
classes: the circumstances surrounding civilian deaths that
take place during an arrest or while in the custody of
• Use of deadly force against suspects who were law enforcement. These data describe the prevalence
surrendering to police authority and incidence of arrest-related deaths across the nation,
• Failure of the officer to control adrenalin over- identify the circumstances or activities that contribute
load resulting from a hot pursuit to these deaths, and reveal trends in the causes and cir-
• Street justice cumstances of these deaths in custody at national and
• Deadly use of force against uncooperative suspects state levels. These data can be used to inform specific
• Failure to handle “suicide by cop” situations policies that may increase the safety of law enforcement
• Failure to consider a suspect’s intoxication officers and citizens, identify training needs in law
• Abuse of authority enforcement agencies, and assist in developing preven-
• Injuring a citizen by failure to apply “knock tion strategies.
and announce” procedures The current ARD program relies on state report-
• Killing a suspect while chasing a fleeing sus- ing coordinators (SRCs) in each of the 50 states and
pect on foot the District of Columbia to identify and report all eli-
• Killing a suspect who refused to open a door gible cases of arrest-related deaths. The BJS compiles
• Killing a suspect who was holding a pipe data from the states to produce national-level statis-
• Killing a suspect 90 seconds after contact tics on deaths that occur in the process of arrest by, or
• Killing a citizen after a private altercation while in the custody of, state and local law enforce-
• Reckless use of deadly force ment personnel. When the DICRA reporting require-
• Misidentification of a suspect ments ended in 2006, the BJS undertook efforts to
• Friendly fire understand the variability between and within SRCs
over time, in terms of data collection methodologies
The researcher noted that the code of silence and available resources. This variability has led to
frequently hampers an investigation into an officer- concerns about definitions, data quality, and under-
involved deadly incident. The researchers noted that coverage error.
the code of silence can be defined as unwillingness to
report official police misconduct to protect colleagues.
Highlights of the program
Unusually strong solidarity in police work, formulated
by low predictability and potential danger, drives • The ARD program collects information on deaths
police to maintain a code of silence that emphasizes that occur in the process of arrest.
loyalty to the department and to other officers and • An arrest-related death is defined as any death
makes officers reluctant to report unethical behavior (e.g., gunshot wound, cardiac arrest, or drown-
to the proper authorities. In addition, federal courts ing) that occurs during an interaction with state or
have found that maintaining a code of silence may local law enforcement personnel, including those
cause the police to turn a blind eye to serious police that occur
wrongdoing. • During an attempted arrest or in the process
of arrest
• While the person is in law enforcement cus-
Arrest-related deaths (ARD) program tody (before transfer to jail)
The Arrest-Related Deaths (ARD) program is an annual • Shortly after the person’s freedom to leave is
national census of persons who die either during the restricted.
process of arrest or while in the custody of state or • Exclusions include
local law enforcement personnel. The Bureau of Justice • Deaths of bystanders, hostages, and law
Statistics (BJS) implemented the ARD program in 2003 enforcement personnel
as part of the Deaths in Custody Reporting Program • Deaths occurring during an interaction with
(DCRP). The DCRP was initiated to fulfill the data col- federal law enforcement agents
lection requirement of the Deaths in Custody Reporting • Deaths of wanted criminal suspects before
Act of 2000 (DICRA, P.L. 106-247). It collects in-depth police contact
information on deaths during arrest and incarceration • Deaths by vehicular pursuits without any
and provides national-level information on the deaths direct police action
Chapter four: Use of deadly force 71

Methodology even a neutral, reception from the public may not be

guaranteed.
Centralized SRCs operate the state-level ARD data col- The authors point out that public perceptions of
lection. The ARD program has three main tasks: officer-involved shootings are usually as wide and
diverse as the population, often driven by media cover-
• To identify arrest-related deaths age, and sometimes influenced by a long-standing bias
• To acquire information about arrest-related deaths and mistrust of government. Documented cases of riots,
• To submit the CJ-11 form, Quarterly Summary of property damage, and loss of life have occurred in com-
Arrest-Related Deaths (or summary of incidents) munities where residents have perceived a police shoot-
and the CJ-11A form, Arrest-Related Death Report ing as unjustified. Some members of the public seem
(or incident report) to automatically assume that the officer did something
wrong before any investigation into the incident begins.
SRCs use one or more of the following sources to Conversely, others believe that if the police shot some-
identify eligible ARD cases: body, the individual must not have given the officer any
choice.
• Law enforcement Departmental perceptions can also prove diverse
• Medical examiner or coroner and difficult to express according to the authors. They
• Prosecutor’s office point out that, when interviewed, one chief of police
• Uniform crime reports (UCRs) advised that “it is sometimes easier to go through an
• National Violent Deaths Reporting System officer being killed in the line of duty than a ques-
(NVDRS) tionable police shooting.” The chief was referring to
• Open-source media search the public’s response, including civil unrest, to what
was perceived as an unjustified police shooting. At
various levels, however, administrators may feel that
Perceptions of deadly force a full and fair investigation will clear up any nega-
Shannon Bohrer and Robert Chaney contend that police tive perceptions by the public. While not all-inclusive,
investigations of the use of deadly force can influence departmental perceptions include many instances
perceptions and outcomes.8 The authors note that the where an officer-involved shooting was viewed with
law enforcement profession spends considerable time clear and objective clarity before, during, and after the
and resources in training officers to use firearms and investigation.
other weapons and to understand the constitutional The authors recommend six elements for correctly
standards and agency policies concerning when they investigating officer-involved shootings. While the ele-
can employ such force. Society expects this effort ments are not meant to be all-inclusive or broad enough
because of the possible consequences of officers not to cover every conceivable situation, they appear to be
having the skills they need if and when they become useful as a guide. The six elements are
involved in a critical incident.
The authors recommend that, in addition to receiv- • Investigators need to have correct and neutral
ing instruction about the use of force, officers should be attitudes. Not all officers are suited to conducting
taught investigative techniques. They must reconstruct police-shooting investigations.
the incident, find the facts, and gather evidence to pros- • There must be an appropriate response to and pro-
ecute the offenders. Historically, they have done this tection of the crime scene. Homicide or criminal
extremely well. But the authors questioned whether investigators should protect the site.
the same amount of attention is paid to examining the • The officers involved should be removed from the
investigative process of the use of deadly force and how scene as soon as possible and taken to a secure
this can affect what occurs after such an event. The location away from other witnesses and media
authors conclude that there are many reasons why the personnel.
police should approach the investigation of an officer- • The investigators need to gain the confidence
involved shooting differently. To help answer these and respect of civilian witnesses. After all, they
questions, the authors present an overview of percep- need their assistance. In most cases, investigators
tions about these events and some elements that law should handle witnesses the same way as the offi-
enforcement agencies can incorporate into investiga- cers involved.
tions of officer-involved shootings to help ensure fair • The need to have these cases vetted through the
and judicious outcomes. The authors point out that, criminal justice process as soon as possible is criti-
just because the officer had the right to shoot and the cal for the involved officers, their families, and
evidence supports the officer’s actions, a positive, or their employing agencies.
72 Police Misconduct: A Global Perspective

• The department’s public information officer In Wilson v. Meets,* the U.S. Court of Appeals for the
should contact the media before their representa- Tenth Circuit commented on the duty of a law enforce-
tives approach the agency. In the early stages of ment officer to render medical aid after the suspect had
the investigation, the department should demon- been shot by the officer: “We have found no authority
strate that it wants to cooperate with the media. By suggesting that the due process clause establishes an
informing the public through press releases and affirmative duty on the part of police officers to render
interviews, the agency shows that it is investigat- CPR in any and all circumstances.” The district court
ing the incident and that as soon as information erred in holding that it was a police officer’s duty to
can be released, it will be. Departments should provide medical treatment in all situations. The appel-
remember that the proverbial “no comment” often late court held that there was no duty to give, as well as
gives the impression that the police are hiding summon, medical assistance, even if the police officers
something. are trained in CPR. The district court here cited no other
authority for the duty to render medical aid or for guid-
ance on what circumstances would mandate action.
Nevertheless, the appellate court noted that there
Duty to provide medical assistance is a difference between medical aid and first aid. Few
According to one news report, a man shot by an off-duty citizens would be likely to want police officers to ren-
Houston, Texas, police officer lay bleeding from two der medical aid. Such steps are best left to the qualified
gunshots in his abdomen for 15 minutes as the respond- and highly trained personnel who act as paramedics or
ing officers stood by without providing first aid. At one emergency medical technicians (EMTs). However, any-
point, the victim, a 53-year-old black man, raised his one can render first aid. The goal of first aid is to sustain
head and an officer used his foot to keep the man’s face life until those who can render medical aid arrive. As
on the pavement. From the time the episode was first the plaintiffs suggested, first aid attends to the patient’s
reported, it took more than an hour for the man to arrive “ABC”—airway, breathing, and circulation, and is a
at an emergency room. An hour after his arrival at the limited form of intervention with the immediate goal
hospital in an ambulance, he was dead. The length of of preventing death. The appellate court stated that they
time that the dying man was left unassisted for has did not hold that police officers never have a duty to
angered his relatives and has been criticized by two wit- give first aid.
nesses to the episode and by law enforcement officials. The court further noted that this was a case of both
“He was shot twice, bleeding, and nobody did any- malfeasance and nonfeasance. The court denied the
thing,” said his mother. She also stated: “I don’t think that city’s request for a summary judgment, with the state-
if he was white they would have just left him like that. A ment that “Taking the facts as most favorable to plain-
dog would have gotten more attention than he did.” tiffs, defendants took deliberate actions that may have
It is unclear if the victim, a former computer pro- aggravated the dying person’s medical needs.”
grammer, would have survived if the officers had ren- In Howard v. Dickerson,† a police officer arrested a
dered aid before the paramedics arrived. But experts woman in her home following a hit-and-run accident.
on police procedure and law enforcement officials who The officer handcuffed the woman, despite her state-
examined the video said that the off-duty officer and his ments that she had recently undergone neck surgery
colleagues should have done more to assist him. and that handcuffing her hands behind her back would
He was shot by an off-duty Harris County deputy be painful. Ms. Howard was wearing a neck brace when
constable after getting into a confrontation with the offi- she was arrested. The court held that Ms. Howard had
cer at an apartment complex northwest of Houston. A stated a cause of action under section 1983 for failure of
video shows the dying man sprawled in a parking lot the police to render first aid.
before an ambulance arrives, as officers put up crime
scene tape and put him in handcuffs. They talk to him
and walk by him, but at other times they leave him Excited delirium syndrome
alone, bleeding, and are not in view of the camera.9 Excited delirium syndrome (ExDS) is a serious and
This appears to be an issue in need of attention. potentially deadly medical condition involving psy-
For example, some police agencies require officers who chotic behavior, elevated temperature, and an extreme
use force to perform first aid on injured suspects. For fight-or-flight response by the nervous system. Failure
instance, one police department has a policy stating that to recognize the symptoms and involve emergency
“the involved officer will render first aid to the individ- medical services (EMS) to provide appropriate medical
ual until the arrival of E.M.S. unit.” Many departments,
however, only place a duty on the officer to ensure that * Wilson v. Meeks, 52 F.3rd 1547 (10th Cir. 2004).
paramedics are notified. † Howard v. Dickerson, 34 F.3d 978 (10th Cir. 1994).
Chapter four: Use of deadly force 73

treatment may lead to death. Fatality rates of up to 10% regulation. Increased dopamine levels result in fast
have been reported in ExDS cases. heart rates, feelings of euphoria, and hallucinations.
According to medical researchers Brian Roach, Highly addictive drugs, specifically cocaine and meth-
Kelsey Echols, and Aaron Burnett, law enforcement amphetamine, increase the level of dopamine in the
officers have repeatedly seen cases of ExDS in the brain. Schizophrenia also results in elevated levels of
last 20 years.10 The researchers cite several cases that dopamine in the brain, and antipsychotics work to treat
involved in-custody deaths from ExDS. One occurred in hallucinations by blocking dopamine on a cellular level.
West Palm Beach, Florida, when a police officer found In chronic cocaine abusers who have died of ExDS,
a shirtless and distraught man stumbling on the road research has shown the loss of a crucial protein that
and attempting to stop vehicles. The officer instructed eliminates dopamine from the brain. This loss results
the man to relax, but he kept gesticulating wildly with in increased dopamine levels and chaotic signaling in
vehicles stopping to avoid him. After a struggle, the the brain. The elevated dopamine levels help to explain
officer placed him in a prone position and handcuffed some of the similarities between ExDS and schizophre-
him. Other officers arrived, helped to move the man out nia (e.g., hallucinations and paranoia) but do not account
of the street, and further restrained him by hog-tying for the high rates of sudden cardiac arrest seen in the
his legs and hands. The man later became unconscious. former but not the latter condition.
Responding paramedics failed to resuscitate him. The The researchers recommend that law enforcement
chief medical examiner for Palm Beach County deter- agencies undertake a concerted effort to increase aware-
mined that the cause of death was “sudden respiratory ness of ExDS among officers by providing information
arrest following physical struggling restraint due to to help identify symptoms and establishing protocols to
cocaine-induced ExDS.” engage the medical community. With this information,
Another case discussed by the researchers involved officers should be in a better position to engage EMS
an ExDS death after taser use in Dallas, Texas. The for urgent evaluation, treatment, and transport to the
police found a 23-year-old male subject in his under- hospital.
wear, screaming and holding a knife on a neighbor’s
porch on April 24, 2006. The man ignored English and
Spanish instructions and came at the officers with the Report of the use of deadly force
knife. One officer fired a taser, which failed to connect. Many states have enacted statutes requiring detailed
A second shot did, causing electrical shock. A third was reports on the use of deadly force by law enforcement
reportedly fired. After being handcuffed to an ambu- officers. Connecticut General Statutes Section 51-277a
lance backboard, the subject stopped breathing and was requires such a report. The following are excerpts
pronounced dead at hospital. The Dallas County medi- from a report submitted by the Chief State’s Attorney
cal examiner attributed the death to “excited delirium.” as required under the statute. A copy of these reports
The researchers noted that reports of presentations should be available under a state’s freedom of informa-
consistent with ExDS occurred as early as the 1840s. tion statutes. If not, a court order should force the state
They noted that, in 1849, Massachusetts psychiatrist to provide an interested party with a copy of the report.
Dr. Luther Bell described an acute, exhaustive mania in This report is being filed with the Chief State’s
which patients developed hallucinations, profound agi- Attorney as required under Connecticut General
tation, and fever, which were often followed by death. Statutes Section 51-277a(c).
The American College of Emergency Physicians On Saturday, May 7, 2005, at approximately
has recognized ExDS as a unique clinical syndrome 1930 hours, Officer Robert Lawlor, a sworn member of
amenable to early therapeutic interventions. According the Hartford, Connecticut Police Department, while on
to the researchers, although cocaine use is associated duty, was involved in an incident pertaining to the use
with ExDS, postmortem cocaine levels in those who of deadly force. Officer Lawlor shot Brandon Henry (date
have died from ExDS are similar to those of recreational of birth August 26, 1983) and Jashon Bryant (date of birth
cocaine users and lower than in individuals who have December 9, 1986). Brandon Henry was shot in the chest
died from heart attacks or other nonExDS causes after and Jashon Bryant was shot twice in the top of the head,
cocaine use. They concluded that the findings suggest causing his death. At the time of the shooting Officer
that cocaine intoxication alone does not cause ExDS, and Lawlor was working in plainclothes as part of a joint City
that a degree of cellular or genetic susceptibility may of Hartford and Federal Gun Task Force known as The
exist that leads some cocaine users to develop ExDS Violent Crime Impact Team (VCIT). With Officer Lawlor,
while others do not. at the time of the shooting, was U.S. Alcohol, Tobacco
The researchers noted that dopamine is a neu- and Firearms Special Agent Daniel Prather.
rotransmitter with many functions. It plays a role The initial investigation into the use of deadly force
in the brain’s perception of reward and temperature by Officer Robert Lawlor was conducted by the Hartford
74 Police Misconduct: A Global Perspective

Police Department and subsequently by the Office of conducting an investigation that was autho-
the State’s Attorney for the Judicial District of Hartford. rized by the Grand Jury Investigatory Panel
That investigation continued until June 2, 2005 when upon its approval of an application submitted
the State’s Attorney for the Judicial District of Hartford, by John A. Connelly, State’s Attorney, Judicial
James Thomas, requested, pursuant to Connecticut District of Waterbury. The Investigatory
General Statutes Section 51-277a, that Chief State’s Grand Jury Panel defined the scope of the
Attorney, Christopher Morano, designate a prosecuto- investigation as follows: “All events and
rial official from another judicial district to investigate circumstances relating to the use of deadly
the use of deadly force. On June 2, 2005, the investiga- force by Hartford Police Officer Robert
tion was assigned to the Waterbury State’s Attorney’s Lawlor on Saturday, May 7, 2005, resulting
Office. in the death of Jashon Bryant and serious
Upon the State’s Attorney’s office for the Judicial injury to Brandon Henry.” I have gathered
District of Waterbury assuming the investigation, and reviewed all the relevant evidence. The
inspectors from said office, along with a special inspec- investigation has been completed.
tor appointed pursuant to Connecticut General Statutes I conclude that there is probable cause
Section 51-277a(b) received from members of the to believe that a crime or crimes have been
Hartford Police Department: physical evidence, written committed. This finding is based on the
statements, photographs, videotapes, and recorded com- credible and legally admissible evidence
munications which transpired before, during and after revealed in the course of the investigation
the time of the use of deadly force by Officer Lawlor. and is made with knowledge that, should
These materials were reviewed, along with the autopsy there be a prosecution, the state will be
report of Jashon Bryant and the interviews of various required to prove beyond a reasonable
witnesses. doubt that Officer Robert Lawlor acted with-
The investigation of the use of deadly physical out legal justification.
force by Officer Robert Lawlor, upon Jashon Bryant
and Brandon Henry was conducted by members of
the State’s Attorney’s Office for the Judicial District
Circumstances of the incident
of Waterbury with the assistance of members of the On May 7, 2005 at approximately 7:15 p.m., Officer
Hartford Police Department, Connecticut State Police, Lawlor and Special Agent Prather were interviewing
Connecticut Forensic Science Laboratory and Office of an unknown white male at the corner of Main and
the Chief Medical Examiner. Nelson Streets in Hartford, directly in front of Olga’s
After having exhausted normal investigative means Market. Lawlor noticed a black Maxima across the
into the use of deadly physical force by Hartford Police street, in the parking lot of 2374 Main St., which is at
Officer Robert Lawlor on May 7, 2005, State’s Attorney the rear of the Ideal Market. Said market is located
John A. Connelly filed an application on September at the corner of Main and Sanford Streets. On the far
13, 2005 pursuant to Connecticut General Statutes side of the Maxima, Lawlor saw a black male (Jashon
Section 54-47c, for an investigation into the commis- Bryant), outside of the vehicle, handling what Lawlor
sion of a crime or crimes, and on October 4, 2005, the believed to be a semi automatic handgun. Prather did
Investigatory Grand Jury Panel approved said applica- not notice anyone outside the Maxima, nor did he see
tion. The Honorable George N. Thim was appointed as anyone with a gun. Lawlor turned his attention from
Grand Juror to conduct an investigation into all events the unknown white male, nodded across the street and
and circumstances relating to the use of deadly force by began walking across Main St. toward the parking lot
Hartford Police Officer Robert Lawlor on Saturday, May of 2374 Main St., which is at the rear of the Ideal Market.
7, 2005 resulting in the death of Jashon Bryant and seri- A black male later identified as Brandon Henry exited
ous injury to Brandon Henry. the Ideal Market and began walking to the parking area
The Grand Juror held eleven sessions during which at the rear of the building. Henry subsequently entered
forty-eight witnesses testified and two hundred and the driver’s seat of the black Maxima, and Bryant got
four exhibits were submitted into evidence. into the front passenger’s seat. Prather proceeded to
On March 31, 2006, the Grand Juror, pursuant to follow Lawlor across the street. While walking Lawlor
Connecticut General Statutes Section 54-47g, filed a asked Prather if he had his badge showing. Prather
report with his findings, in which he stated: then produced the badge he was wearing around his
neck, and Lawlor pulled out his service weapon, a .45
On October 12, 2005, I was appointed by caliber automatic. Lawlor began shouting commands at
the Chief Court Administrator as an inves- Henry, “police shut the vehicle off.” When they reached
tigatory grand juror for the purpose of the parking lot, Prather walked straight to the driver’s
Chapter four: Use of deadly force 75

side of the vehicle, while Lawlor angled north and driver’s seat. Nothing was found under the passenger’s
approached from in front of the vehicle. Lawlor now seat where Bryant was seated. On May 7, 2005, the police
pointed his weapon at Henry. Henry began to slowly conducted a massive search of the area, shooting scene
back the vehicle up. After commands from Lawlor to and Henry’s direction of travel. No weapon was found.
turn the vehicle off, Henry complied, raising his hands Two subsequent searches were conducted on May 8,
above the steering wheel. The Maxima was now facing 2005 during daylight hours, and again no weapon was
north-northwest. Lawlor then walked from the front found.
of the Maxima and approached the passenger side The Hartford Police Evidentiary Services Division
of the vehicle and began talking to Bryant. Bryant’s processed the shooting scene at 2374 Main Street, the
window was partially down. Prather remained on accident scene at the intersection of Westland and Clark
the driver’s side of the vehicle and began conversing Streets, and the Brandon Henry apprehension scene at
with Henry. Lawlor ordered Prather to call for back up. 68 Elmer Street. Photographs of the Nissan Maxima
Prather radioed fellow VCIT members at 7:21 p.m., and show that the driver’s side windows, front and rear, and
requested assistance. Fellow VCIT members acknowl- the passenger’s front window were all partially down.
edged Prather and indicated that they were responding The passenger’s rear window was shot out.
to his location. At this point Prather saw Henry lower Raphael Melendez witnessed the shooting from
his hands, and he ordered him to raise them. Henry across the street at Olga’s Market. Melendez was famil-
did, resting them on the steering wheel. Prather, now iar with Officer Lawlor having previously been arrested
standing aside the front tire, drew his service weapon, by him. According to Melendez, immediately following
and held it down by his side. Prather turned to look for the shooting, Lawlor came to the edge of the road and
fellow VCIT members, heard a noise, and turned back said “I can’t believe he pulled a gun on me.”
to see Henry begin to drive off. Prather stated he then Officer Lawlor in an I-call radio transmission to
heard “four pops.” Said pops were in fact (5) gunshots Detective William Rivera at 7:31 p.m., had the following
fired by Lawlor. Brandon Henry was shot in the chest conversation:
and Jashon Bryant was shot twice in the head (fatally).
At 7:23 p.m., Prather radioed “shots fired, shots fired.” Lawlor: Hey. …what’s going on with these two? Did, did
After being shot, Henry then drove the vehicle for- I hit anybody that tried to just kill me and this guy?
ward, over grass and curb, creating his own exit out Rivera: Yeah ya hit somebody bro. I’ll let ya know in a
of the parking lot, onto Main Street. Fellow VCIT offi- second.
cers pursued the vehicle. Henry then drove his vehicle Lawlor: Is he dead?
north on Main Street approximately 2110 feet to the Rivera: I’ll let ya know in a second
intersection of Westland Street. Henry turned left onto Lawlor: Alright
Westland and drove west approximately 1600 feet to Rivera: Say, ya all right?
the intersection of Westland and Clark Streets where Lawlor: No, I’m not. F...... guy almost hit me and f......
his vehicle collided with another car. Henry then ran pulled a gun on me. No, I’m not all right. I’m pissed.
from the Maxima, while Jashon Bryant remained in the
car. A short time later Henry was apprehended hiding Hartford Police Sergeant Mack Hawkins was the
underneath a porch. supervisor assigned to the Intelligence Division over-
Bryant was transported by ambulance to St. Francis seeing the VCIT, and was the first officer to respond to
Hospital where he was pronounced dead. His clothing the shooting scene. Officer Lawlor told Hartford Police
was seized as evidence by the Hartford Police, and his Sergeant Mack Hawkins that Bryant pulled up a gun,
hands were bagged prior to his removal to the Office of and that when he saw the gun, he jumped back from the
the Chief Medical Examiner. passenger’s door and fired four to five shots. Hawkins
Based on the evidence recovered at the scene (shell did not ask Prather what transpired, nor did Prather vol-
casings), and an examination of Officer Lawlor’s service unteer any information regarding the shooting. That all
weapon, it was determined that five shots were fired, all the information Hawkins ever ascertained came solely
from Officer Lawlor’s weapon. from Robert Lawlor.
Immediately after the shooting at 7:25 p.m., Officer On May 9, 2005, Special Agent Prather submitted
Lawlor made a radio transmission in which he warned to an interview conducted by ATF Shooting Review
other officers, “be careful 83s in the car.” Signal 83 is Coordinator Robert A. Schmitt. On May 11, 2005, Special
Hartford Police Department code for a gun or firearm. Agent Prather was interviewed at the Hartford Police
None of the officers that pursued the Maxima ever Department. Present were Special Agent Dennis Turman
saw anything thrown from the car during the pursuit. (ATF Agent in Charge), James T. Cowdery (Prather’s attor-
Following the capture of Brandon Henry, the Maxima ney), Lieutenant Achilles Rethis (Commander of Major
was searched. A bag of cocaine was found under the Crimes), Detective Patricia Beaudin (lead investigator)
76 Police Misconduct: A Global Perspective

and Detective Timothy Shaw (assistant investigator). shooting did Lawlor ever indicate to Prather that either
Agent Prather did not provide a written statement nor person in the Maxima had a gun.
allow the interview to be videotaped or orally recorded. Prather testified that although he spoke to Sergeant
Said interview was memorialized by notes of Detective Hawkins when he first arrived on the scene after the
Beaudin. On June 1, 2005, Attorney James T. Cowdery shooting, Prather did not tell him what had occurred.
submitted a signed unsworn statement of Special Agent None of Prather’s four oral or written statements
Dan Prather to Lieutenant Achilles Rethis, Commander indicated that he saw either person in the Maxima in
of the Major Crimes Division of the Hartford Police possession of a gun.
Department. Brandon Henry was shot in the chest, fled from the
On January 10, 2006, Special Agent Prather testified police, and when apprehended, was taken to the hospi-
before the Grand Jury. His testimony included the fol- tal for treatment of the gunshot wound. A subsequent
lowing information: While speaking to the unknown search of the vehicle revealed there was no weapon in
white male at the corner of Main and Nelson Streets, the car. No gun was recovered in the car nor in the course
Prather saw Lawlor nod toward the parking lot across of the escape route, however there were drugs found
Main Street and then begin crossing the street. Prather under the driver’s seat where Henry was seated. Based
did not recall Lawlor saying anything to him. When on the finding of drugs under the seat where Henry was
they got to the opposite side of Main Street, Prather sitting he was arrested for Possession of Narcotics and
heard Lawlor tell him to take out his badge. Prather tes- Interfering with Police. He was subsequently arrested
tified to the following: for Violation of Probation. Both cases are now pending
in the Judicial District of Hartford.
Question: And did Officer Lawlor at that time indi- Brandon Henry’s medical records were produced
cate to you that there was a weapon in the car while at the Grand Jury, and subsequently disclosed to
you were standing by the car and he’s crouched the Connecticut Forensic Laboratory for use in their
down on the side of the passenger door? reconstruction. Brandon Henry was shot in the chest.
Answer: I don’t recall him saying that. According to Dr. John Welch, his attending physician,
Q: He doesn’t say; Dan, watch out. There’s a gun, Henry had two wounds in his chest, which appeared to
or anything like that? be one entry and one exit wound. One wound was over
A: I don’t recall that. the center of the chest over the sternum. The second was
Q: Do you know the signal for gun in Hartford to the right near Henry’s right nipple. Dr. Welch con-
Police dispatch language? cluded that the bullet entered one of these wounds, trav-
A: I believe it was 83. eled horizontally along the front of his body, hit some
Q: Did you hear him say; Dan, 83? structure and exited out the other wound. Dr. Welch
A: I don’t recall. described Henry’s injury as nonlifethreatening.
Q: Did he tell you; Dan, take out your weapon. Or; On May 9, 2005, Associate Medical Examiner Ira
Dan watch out? Kanfer, M.D., performed a postmortem examination
A: I don’t recall any of that. on the body of Jashon Bryant at the Office of the Chief
Medical Examiner. Dr. Kanfer concluded Mr. Bryant
Prather testified that at no time while he was at the died of multiple gunshot wounds to the head, and
car with Officer Lawlor did he believe his life was in described the gunshots wounds of the head as follows:
danger, nor was Officer Lawlor’s. Prather indicated he
saw Lawlor approach the passenger side of the car and Gunshot wound “A” is an entry type gun-
at one point Lawlor was crouched down on the passen- shot wound located approximately at the top
ger side of the car. Prather indicated he stayed on the of the head, located 1-1/2 inches to the right
driver’s side of the Maxima throughout the entire inci- of the midline. It is a 1.5 cm., somewhat irreg-
dent, approximately one foot from the car, between the ular hole without soot or stippling associated
front tire and the driver’s door. with the wound.
Prather testified that while he was at the car with
the two men in the car, he was not aware of any activity Gunshot wound “B” is also located at the
that would lead to probable cause to make any type of top of the head, somewhat posterior. It is
an arrest. Prather did not see any criminal activity by also 1-1/2 inches to the right of midline. It is
Bryant or Henry at any time. a 0.5 cm irregular hole. Associated with the
Prather testified the shots were fired while the entry wounds are one copper jacketed bul-
car was moving forward. Prather testified that a few let recovered in the base of the cranial vault
moments after the shooting Lawlor said “something and the 2nd bullet is recovered in the soft
wasn’t right” but at no point, before, during or after the tissue posterior to the mandible. The bullets
Chapter four: Use of deadly force 77

are large caliber, copper jacketed bullets. The headrest and exited the front of the passenger
paths of the bullets are from back to front, headrest and then entered the passenger’s head to
right to left and downward. The brain is cause one of his head wounds. The bullet trajec-
markedly disrupted and pulverized. tory was from back to front, right to left, approxi-
mately 36 degree angle and 5 degrees downward.
In addition to the gunshot wounds there is a 2 cm 3. The next shot was fired from the back passenger
defect of the right thumb with hemorrhage surrounding side through the broken window toward the front
the defect. According to Dr. Ira Kanfer, Jashon Bryant passenger side. The bullet trajectory is back to
died instantly from the wounds to his head. front, right to left, approximately 50 degree angle,
On September 6, 2005, Dr. Kanfer, indicated to and 14 degrees downward. This bullet impacted
State’s Attorney John Connelly and Inspector James Bart the back side of the passenger’s head.
Deeley that, to a reasonable degree of medical certainty, 4. The last shot was fired from the back of the passen-
the grazed wound type injury to the deceased’s right ger side. This bullet impacted the rear passenger’s
thumb is consistent with a defensive wound, which door and did not exit the door. The trajectory of
would indicate that at the time of the shooting, at least this shot is from back to front, right to left, approx-
one of Bryant’s hands was on his head. imately 23 degree angle and 3 degrees downward.
According to Jashon Bryant’s grandmother Betty
Bryant, with whom he resided, Jashon Bryant was Dr. Lee testified on January 17, 2006 in accordance
right-handed. with his report’s conclusions.
Five bullets were discharged from Lawlor’s weapon, On November 13, 2005 the Connecticut Forensic
and all of the bullets were subsequently recovered. Two Laboratory submitted a report of the instrumental anal-
bullets were recovered from the head of Jashon Bryant. ysis on the Scanning Electron Microscopy tabs taken
One bullet was found on the ground outside the driver’s by the Hartford Police Evidentiary Services Division to
door at the site of the collision. One bullet was found in test for the presence of gunshot residues. The three ele-
the driver’s door map holder. The last bullet was recov- ments found in gunshot residue are lead, barium and
ered inside the rear passengers’ door panel. antimony. The analysis detected the presence of lead
Dr. Henry C. Lee of the Connecticut Forensic on samples from the: driver’s door exterior, passen-
Laboratory conducted a reconstruction of the shooting. ger’s door exterior, passenger’s door rear, left sleeve of
Based on the review of documentation, results of exami- Brandon Henry’s jacket, passenger’s side and driver’s
nation of physical evidence, reconstruction of the scene side headliner, sunroof cover and driver’s floor, but did
and location of physical evidence at the scene, Dr. Lee not detect the additional elements of barium and anti-
determined that: mony on any of these samples.
The vehicle was moving from a location near the The November 13, 2005 report from the Connecticut
center of the parking lot toward Main Street in a north- Forensic Laboratory on instrumental analysis failed to
west direction from the shooting incident. detect the presence of lead, barium or antimony (gun-
Based on the location of the spent casings and the shot residue) on samples from the: steering wheel, gear-
location of the tire marks on the parking lot, all five shift, passenger’s door interior, driver’s side rear door
shots were discharged from the passenger side of the exterior, driver’s door interior, passenger’s floor and the
vehicle. bags from Bryant’s hands.
The locations of the fired shell casings and glass On June 7, 2005, the Connecticut Forensic Laboratory
fragments and the conditions of the tire marks indicate submitted a report of the analysis of a gunshot residue
that both the vehicle and the shooter were moving at the kit from the hands of Jashon Bryant. The analysis failed
time of the shooting. to detect the presence of the elements of lead, barium or
The most likely sequence of events was: antimony (gunshot residue).
On June 14, 2005, the Stuart Somers engineering firm
1. The first two shots were fired from the front pas- surveyed the parking lot and intersection at Main and
senger side toward the front driver’s side. One of Nelson Streets. The lot at 2374 Main Street in Hartford
the bullets grazes the chest area of the driver. The was paved, but undeveloped, without designated park-
trajectories of these shots were from right to left. ing spaces. Based on Lawlor and Prather’s information
The driver appears to have been in an upright posi- as to their initial location on Main Street, the distance
tion at the time when this bullet impacted him. between Lawlor and the Maxima was approximately
2. Next a shot was fired from the back passenger 130 to 150 feet. The parking lot sloped downward from
side toward the front passenger side. The bullet the street and the back (easternmost) part of the lot was
impacted the rear passenger’s window and sub- four feet lower than the front (westernmost) section of
sequently entered the right side of the passenger the lot adjacent to the street.
78 Police Misconduct: A Global Perspective

Immediately after Brandon Henry’s apprehension, Police Department. Henry was in custody for the nar-
during questioning by Hartford Detective Andrew cotics charge. When questioned as to what happened
Weaver, Henry responded that he couldn’t believe he before and after the shooting, Henry indicated that he
had gotten shot over drugs. When questioned as to the went to 2374 Main Street Hartford with his friend Jashon
whereabouts of the weapon, Henry said, “I didn’t have Bryant. Henry admitted to having a half an eight ball of
a gun.” Following the capture of Brandon Henry, police cocaine (an eighth of an ounce) in the car and noticed
conducted a massive search of the area, shooting scene two plainclothes officers approaching his car with their
and Henry’s direction of travel. No weapon was found. guns drawn and pointed at him and Bryant. That when
Two subsequent searches were conducted on May 8, asked how he knew they were cops he stated he heard
2005 during daylight hours, and again no weapon was their police radios. Henry stated he didn’t want to go
found. back to jail and knew he was headed back if caught with
On May 7, 2005, while at Hartford Hospital, Officer the drugs. Henry stated he heard the officer on the pas-
Morrison and Officer Leger, advised Henry of his senger side of the car yelling “keep your hands where I
Miranda rights. Subsequent to that advisement, Henry can see them.” Henry then blamed the shooting incident
was interviewed. Henry stated that there was no gun on himself stating “because I made the decision to drive
in the car. Henry stated that he and his boy were off that’s when the shots were fired.” Henry stated he
parked, that the cops were walking up on them that he realized he and Jashon had been shot while fleeing the
knew they were cops in plainclothes when one of them scene. Henry stated he decided to run because he still
flipped his badge out from under his shirt. Henry stated didn’t want to go to jail for the cocaine that was in the
that there was a lot of yelling, then all of a sudden there car. When asked if he or Bryant had a gun in the car he
was shooting. Henry stated that his boy fell back into stated “no there was no gun.”
the car and there was blood everywhere. Henry stated On December 6, 2005, Brandon Henry testified
he was afraid so he just took off. before the Grand Jury under a grant of immunity, to the
At approximately 2255 hours on May 7, 2005, following:
Sergeant John Koch re-interviewed Henry at Hartford
Hospital. After being advised of his rights, Henry Henry was driving the black Maxima on
agreed to be interviewed. Henry stated he and the May 7, 2005 and drove to the Ideal Market on
deceased were both out of the Maxima when he saw Main Street in Hartford. Henry parked on
the two males approaching, and he told the deceased to Main Street but told Jashon Bryant to move
get in the car. That he saw one of the men pulled out a the car into the lot behind the Ideal Market
police badge from under his shirt, and he realized that while Henry went into the Ideal Market
the two males were police officers. Henry stated he had because Bryant wanted to look for his money.
an eighth of an ounce of cocaine in the vehicle, and he When Henry returned from the Ideal Market,
did not want to go back to jail. One officer was on the the Maxima was in the lot and Jashon Bryant
driver’s side while the other was on the passenger’s side. was outside the car. As Henry neared his
Henry stated that he stepped on the gas to take off at car, he saw two men looking at him. One
which time he heard gunshots being fired. Henry looked man was wearing a hoodie (Lawlor) and
at Bryant and said blood was coming out of his head like the other a hat (Prather). Henry and Bryant
a “waterfall” and that one of his eyes was swollen like both entered the car and Henry began to
he had been shot through it. At this point Henry fled back up. The cop with the hoodie pulled
with the intention of taking Bryant to the hospital. After out a gun and ordered them to stop and put
the collision with another car, Henry exited his vehicle their hands up. Henry indicated both he and
and fled, subsequently hiding under a residence porch Bryant complied. Henry indicated that he
until taken into police custody. When asked where the realized they were police officers when he
“half an eight ball” was now, Henry said it was probably heard their police radios. Henry indicated
still in his car. When asked whether there was a firearm that both officers were initially on the driv-
in the car Henry stated that he had “half an eight ball” er’s side of the car but that the man with the
but they didn’t have a gun. The interview was stopped gun moved in front of the car to the passen-
at 2330 hours. That the cocaine was later located in the ger side. The other man (Prather) remained
vehicle, under the driver’s seat, and submitted into evi- on the driver’s side of the car. The man with
dence. Nothing was found under the passenger’s seat the gun ordered Henry to turn off the car and
where Bryant was seated. he did. Henry saw the man with the gun take
On May 8, 2005 at approximately 2145 hours, out his cell phone and start dialing. Henry
Detectives Michael Sheldon and Patricia Beaudin con- saw the other cop with the walkie-talkie turn
ducted an interview with Brandon Henry at the Hartford his head, so Henry started the car “real quick
Chapter four: Use of deadly force 79

and pulled off, and like just started hearing Diaz still denied knowing Lawlor. Diaz left the police
shots.” Henry heard the shots fired after he department at 5:15 p.m.
pulled off. Henry decided to try to get away On May 16, 2005 at 11:15 p.m., Diaz again contacted
because he was on probation, had drugs in Detective Shaw and said he was at the police station
the car, was scared and did not want to go and needed to change his written statement. Diaz sub-
back to jail. Henry did not tell Jashon Bryant sequently dictated a detailed statement to Hartford
that he was going to attempt to flee. Henry Detective Mike Sheldon in which he stated he had lied
never saw Bryant reach under the seat or to on his previous statement, and fabricated the informa-
the floor. tion about the pellet gun to help Lawlor as a favor to
Lawlor for not arresting Diaz in 1995.
On May 9, 2005, Lieutenant Achilles Rethis con- An arrest warrant was subsequently issued for
tacted Robert Lawlor’s attorney Michael Georgetti Jaime Diaz charging him with violation of Connecticut
to schedule an interview of Officer Lawlor. Attorney General Statutes Section 53a-155—Tampering with or
Georgetti notified Lieutenant Rethis that his client had Fabricating Physical Evidence, 53a-157b False Statement
received information from one of his confidential infor- in The Second Degree, 53a-167a Interfering with Police.
mants that a junkie had picked up the gun thrown from The Waterbury States Attorney’s Office is handling the
the vehicle occupied by Mr. Henry and Mr. Bryant. prosecution of Jaime Diaz.
Attorney Georgetti was advised to have Officer Lawlor On January 31, 2006, Officer Lawlor testified before
transmit his information to the Major Crimes Division. the Grand Jury. He testified to the following:
On May 10, 2005 at approximately 10 a.m., Detective
William Rivera received a phone call from Robert He has been a Hartford police officer for
Lawlor. In said phone call, Lawlor told Rivera that he more than eighteen years. On May 7, 2005, he
(Lawlor) had received information from a confidential saw a black Maxima in the parking lot across
source that a “fiend” had picked up the gun and the the street from Olga’s market at Main and
“fiend” was from the Nelton Court housing project. Nelson Streets. The Maxima was “parked
According to Detective Rivera, fiend is a slang term inconsistent with standard—with parking
for a drug addict. Detective Rivera indicated Lawlor for the parking lot.” Main Street runs north
was referring to a gun having been thrown from the and south. The car was facing northwest.
Maxima. Detective Rivera told Lawlor to report that He saw a black male (Jashon Bryant) on the
information to Sergeant Hawkins. passenger’s side of the Maxima, outside the
Robert Lawlor never notified Sergeant Hawkins vehicle. The male appeared to be clutching
or the Major Crimes Division of the Hartford Police a small semiautomatic handgun with both
Department of any information concerning a “fiend” hands, and fumbling with it. Lawlor crossed
finding a gun. the street to approach the vehicle, and said to
On May 13, 2005, Jaime Diaz telephoned Hartford Prather “83” to signify a firearm. However,
Community Relations Officer Daniel Auciello and stated Prather did not realize what “83” meant
that he had the gun involved in the police shooting on because “he was never even familiarized
May 7, 2005. Diaz subsequently dictated a detailed state- with our Ten Codes.”
ment to Hartford Detectives Bruskey and Sheldon, in
which he described how he came into possession of the This testimony was contradicted by Prather’s, in
gun. In response to questions from the police officers that Prather testified he never heard Lawlor say “83,”
he denied knowing Officer Lawlor and Special Agent and Prather was aware that “83” signified a firearm in
Prather. Hartford Police Code.
A subsequent investigation revealed that Jaime Lawlor also testified that
Diaz had previously worked as an informant for Officer
Lawlor in 1995. Diaz had been involved in a drug sting Henry exited the Ideal market and returned
of a major drug dealer in Hartford in which he provided to the car. Both Henry and Bryant entered
information to Lawlor that resulted in the arrest of Angel the vehicle, Henry as driver and Bryant as
Garcia and the seizure of (600) bags of Heroin. Angel passenger. Henry started the car, and began
Garcia was arrested as a result of Jaime Diaz’ coopera- to slowly drive toward the exit, heading due
tion with Officer Lawlor, but Diaz was not arrested. west toward Lawlor and Prather. Lawlor
On May 14, 2005, at 4:55 p.m. Detectives Beaudin drew his service weapon, and began order-
and Shaw re-interviewed Diaz. Diaz was shown a pic- ing the two occupants of the Maxima to shut
ture of Officer Lawlor. Diaz denied ever having any con- off the vehicle and put their hands up. The
tact with Lawlor. When asked about the 1995 incident, car stopped and then began to go backwards.
80 Police Misconduct: A Global Perspective

The car was again facing northwest. Lawlor Lawlor testified that he began firing because the car
moved from the driver’s side to the passen- was moving forward, which is a violation of Hartford
ger’s side of the car while Prather remained Police Department Order 1-20.
on the driver’s side, between the driver’s door Hartford Police Officer Lewis Crabtree, a Hartford
and the front tire. The passenger’s window Police Department firearms instructor, testified on
was partially down. Lawlor repeatedly com- January 31, 2006 that all Hartford police officers are gov-
manded the occupants to show their hands. erned by General Order Policy and Procedures Number
Lawlor indicated he could see Henry’s hands 1-20, effective 11/20/88. Order 1-20 pertains to firearms
and he did not have anything in them. Lawlor guidelines, and establishes the limits within which
could not see Bryant’s hands because “he the use of firearms by members of the Hartford Police
would bring ‘em up a little bit, and then he Department is permitted, as well as prohibited. Under
would bring ‘em back down again.” Lawlor Order 1-20, § III. B.3. The use of firearms is prohibited “to
told Prather to call for backup. Lawlor then fire from or at a moving vehicle unless the occupants of
took out his phone and attempted to call for the other vehicle are using deadly physical force against
backup but could not because it was so cum- the officer or another person.”
bersome. At some point the Maxima was shut The evidence showed that neither occupant of the
off. Lawlor testified the driver and the pas- Maxima was using deadly physical force against Lawlor
senger did communicate with one another or Prather at the time Lawlor fired into their vehicle, and
and he felt they made the decision to flee. “... that neither occupant was armed.
I saw that their mind was made up, and they Lawlor testified in response to whether he had ever
both—one went for the keys, and whatever told anyone that a junkie had picked up the gun that
he did to get that car moving again. The pas- was thrown from the car, “I just don’t believe I ever said
senger of that car made—his hands were not that.”
up. He made movement to go to the floor. He Lawlor’s testimony was contradicted by Detective
went down.” William Rivera’s testimony regarding the phone call he
received from Lawlor regarding a “fiend.”
This testimony is contradicted by the physical evi-
dence, in that Bryant’s right thumb injury suggests that Determination of whether officer lawlor’s
his hand was at or above the level of the front passenger
window at the time he sustained the wound.
use of deadly force was appropriate
Lawlor testified that he jumped back and started Section 51-277a of the Connecticut General Statutes pro-
shooting, first at the passenger and then at the operator. vides that “the Division of Criminal Justice shall cause
This testimony is contradicted by the physical evi- an investigation to be made whenever a peace officer,
dence and reconstruction conclusions of Dr. Henry C. in the performance of his duties, uses deadly physical
Lee that the first shots were at the operator. force upon another person and such person dies as a
Lawlor testified he fired at the passenger because result thereof ...” The State’s Attorney must determine
“in my heart that passenger was coming up with a the circumstances of the incident, and whether the
handgun to shoot at me.” Lawlor testified that at no time use of deadly physical force by the peace officer was
did he actually see a handgun in the vehicle. appropriate under Connecticut General Statutes Section
Lawlor further testified that he never saw a gun 53a-22. Connecticut General Statutes Section 53a-22 pro-
while he was at the car, he never saw either the driver vides, in part, that
or the passenger pull a gun on him, did not see the pas-
senger point a gun at Lawlor, did not see the passenger A peace officer … is justified in using deadly
point a gun at Prather, and did not see the passenger physical force upon another person … only
point a gun at Lawlor as the car drove away. when he reasonably believes that such is nec-
When questioned as to what he meant when he said essary to (c) defend himself or a third per-
to Detective Rivera in the I-call shortly after the shoot- son from the use or imminent use of deadly
ing that “fucking guy almost hit me and fucking pulled physical force.
a gun on me,” Lawlor testified that, “I would have been
referring to the driver of the car. And I would have been Based upon the forensic investigation, autopsy and
referring to ‘fucking pulled a gun on me’ because that’s medical reports, statements of the witnesses, Officer
exactly what I believe that the passenger was about to Robert Lawlor’s own sworn testimony and the applicable
do to me.” case law (State v. Smith, 73 Conn. App. 173, 807 A.2d 500,
Lawlor testified that he intended to fire into the cert. denied 262 Conn. 923, 812 A.2d 865 (2002); Graham
“occupiable compartment of the vehicle.” v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L.Ed.2d
Chapter four: Use of deadly force 81

443 (1989)), the State’s Attorney for the Judicial District This was the case in 49% of unarmed incidents. Physical
of Waterbury determines that the use of deadly physi- altercations refer to incidents in which the suspect
cal force by Officer Robert Lawlor was not appropriate reached for the officer’s firearm or overwhelmed the
under Connecticut General Statutes Section 53a-22. officer with physical force. This was the case in 35%
of unarmed OISs. The remaining unarmed incidents
involved toy guns (10%), unarmed accomplices (3%), and
Further action accidental discharge (2%).
As a result of the determination that the use of deadly White suspects were unarmed in 8 of 32 OISs (25%),
physical force by Officer Robert Lawlor was not appro- black suspects were unarmed in 45 of 285 OISs (15.8%),
priate under Connecticut General Statutes Section 53a- Hispanic suspects were unarmed in 5 of 34 OISs (14.7%),
22, and the Grand Juror’s findings that a crime or crimes and Asian suspects were unarmed in 1 of 5 OISs (20%).
have been committed by Officer Lawlor resulting in the A closer look at OISs shows that black suspects in OISs
death of Jashon Bryant and physical injury to Brandon were most likely to be the subject of a threat perception
Henry, an arrest warrant should be applied for, charg- failure (8.8%) and white suspects in OISs were most
ing him with Manslaughter in the first degree in vio- likely (18.8%) to be involved in a physical altercation
lation of Connecticut General Statutes Section 53a-55(a) resulting in an OIS.
(3) for the homicide of Jashon Bryant and Assault in the They also examined the race of officers involved in
first degree in violation of Connecticut General Statutes threat perception failure OISs to gain a greater under-
Section 53a-59 for the wounding of Brandon Henry. standing of how cross-race encounters may influence
Signed and Submitted this 15th day of May 2006.11 threat perception. They found that the threat perception
failure rate for white officers and black suspects was
6.8%. Black officers had a threat perception failure rate
Assessment of deadly force in the of 11.4% when the suspect was black. The threat percep-
tion failure rate for Hispanic officers was 16.7% when
Philadelphia Police Department involved in an OIS with a black suspect.
George Fachner and Steven Carter12 conducted research The report noted that officers
on officer-involved shootings in Philadelphia during
the years 2007–2013. During that period, there were 394 • Do not receive regular, consistent training on the
officer-involved shootings (OIS). OISs mostly involved department’s deadly force policy.
three or fewer officers. The vast majority (94%) of offi- • The PPD requires officers to complete crisis inter-
cers involved in shootings were men. The majority (59%) vention training (CIT) in order to obtain an elec-
of officers were white, whereas 34% were black, 7% were tronic control weapon (ECW). This requirement
Hispanic, and less than 1% were Asian. conflates both tactical approaches and limits the
Officers were 33 years old, on average, and usu- distribution of less-lethal tools throughout the
ally in a patrol function. Although patrol officers had department.
the greatest number of OISs, when the size of differ- • The PPD’s drafted ECW policy is not detailed
ent Philadelphia Police Department (PPD) units was enough regarding the circumstances in which use
controlled for, the highway patrol, major crimes unit, of the tool should be limited.
and narcotics strike force had the highest rates of OISs. • PPD recruit training is not conducted in a system-
The average age of suspects was 20 years old. The atic and modular fashion. As a result, some recruit
racial composition of suspects in OISs was 80% black, classes receive firearms training close to the end
10% Hispanic, 9% white, and 1% Asian. Suspects were of the academy, whereas others receive it early on.
unarmed in 15% of OISs. • The PPD lacks a field-training program to help
Suspects were armed with firearms 56% of the time; transition academy graduates into full-time work
used vehicles as weapons 9% of the time; were armed as officers.
with a sharp object 8% of the time; were armed with • The PPD’s annual in-service training require-
a BB gun 3% of the time; and were armed with a blunt ments tend to be limited to municipal police officer
object 3% of the time. In 6% of cases, it has not been education and training commission standards. As
determined whether the suspect was armed. a result, officers do not regularly receive in-service
Unarmed OIS incidents were mostly attributable to training on threat perception, decision-making,
one of two factors: threat perception failures and physi- and de-escalation.
cal altercations. Threat perception failures occur when • OIS investigations generally lack consistency.
the officer(s) perceives a suspect as being armed due to • The PPD’s current practice for recording inter-
the misidentification of a nonthreatening object (e.g., a views of witnesses and discharging officers is
cell phone) or movement (e.g., tugging at the waistband). through typed notes.
82 Police Misconduct: A Global Perspective

• The IAD shooting team waits for the district attor- According to the center, the following groups are
ney’s office (DAO) to decline charges against an more likely to be killed by law enforcement:
officer before it interviews discharging officers
and closes its investigation. As a result, most offi- • African Americans aged 20–24: 7.1 per million
cers involved in shootings are not interviewed population per year
until three or more months after the incident has • Native Americans aged 24–35: 6.6 per million pop-
occurred. ulation per year
• The PPD has begun posting a significant amount • Native Americans aged 35–44: 5.9 per million pop-
of data and case information on its website. Still, ulation per year
more transparency is needed to keep the commu- • African Americans aged 25–34: 5.6 per million
nity properly informed. population per year
• Native Americans aged 20–24: 4.6 per million pop-
The research report concluded that the PPD is a ulation per year
large, complex organization with a deeply rooted his- • Latinos aged 20–24: 4.4 per million population per
tory and culture. The department’s complexity reflects, year
in part, the growing complexity of the role of police • Latinos aged 25–34: 3.2 per million population per
in society, which has evolved from reactive to proac- year
tive in its fight against crime. They recommended that • African Americans aged 35–44: 3.0 per million
the department take the same evolutionary steps in its population per year
approach to public interactions, use of force, and use of • African Americans aged 15–19: 2.9 per million
deadly force. population per year
• Average, all races and ages: 1.2 per million popula-
tion per year
Summary
• An article published by the Economist magazine,
shortly after the Ferguson shooting, indicated that Practicums
“last year, in total, British police officers actually Practicum one
fired their weapons three times.”
• Between 2010 and 2014, the police force of Two FBI agents possess an arrest warrant for a man who
Albuquerque, New Mexico, shot and killed 23 is wanted for bank fraud and embezzlement. As they
citizens. This was seven times more than the num- approach his residence to make the arrest, they observe
ber of British citizens killed by all of England and a man matching the subject’s description standing on
Wales 43 police forces. the front porch. When the agents are within about 20
• In 2013, 30 American police officers were shot and yards of the residence, the man looks in their direction
killed in the line of duty compared with none and immediately jumps from the porch and runs down
among the England and Wales police forces. the sidewalk away from them.
• FBI special agents may use deadly force only One of the agents shouts, “FBI! Stop!” When the man
when necessary—when the agent has a reason- ignores that command, the agent shouts a second time,
able belief that the subject of such force poses an “FBI! Stop or I’ll shoot!” The suspect continues running,
imminent danger of death or serious physical increasing the distance between himself and the pursu-
injury to the agent or another person. If feasible, ing agents. Realizing that they are not going to be able
a verbal warning to submit to the authority of the to overtake the fleeing suspect, the agent fires a shot,
special agent is given prior to the use of deadly striking the suspect in the back.
force.
• The leading case on when the police may use Discussion: Does this use of
deadly force is the U.S. Supreme Court case of
Tennessee v. Garner.
force violate FBI policy?
• The court stated that the use of deadly force to This incident is discussed in John C. Hall (April, 1996)
prevent the escape of all felony suspects, what- “FBI training on the new federal deadly force police,”
ever the circumstances, was constitutionally The FBI Law Enforcement Bulletin.
unreasonable. The court stated that it was not
better that all felony suspects die than that they
Practicum two
escape.
• Native Americans get shot by cops at an astonish- A defendant, police officer Scott Smith, is being tried
ing rate, and the media rarely mentions it. for the death of a suspect that he was in the process
Chapter four: Use of deadly force 83

of arresting. The fact is that the officer observed the Discussion questions
victim standing with his back to him; he could not
see the victim’s hands. At that time, the victim looked 1. What guidelines should law enforcement officers
back at the defendant with what the defendant termed follow regarding the use of deadly force?
a confrontational or thousand yard stare. Consistent with 2. Who is most likely to be killed by law enforcement
training that he had received as a police officer, the officers?
defendant perceived those looks, or cues, as indica- 3. Why are U.S. police more often involved in deadly
tive of a threat to his safety. The defendant drew his force compared with U.K. police?
sidearm from the holster on his hip and pointed it 4. What actions should be taken to lessen the number
at the victim, cradling the weapon with both hands. of deaths resulting from deadly force?
Immediately after drawing his weapon, the defendant 5. What criminal actions does a police officer face if
began yelling to the victim, “Show me your hands, he or she uses deadly force without justification?
show me your hands,” and he began to approach
him. The defendant wanted to “get both of them out References
of the middle of the road.” The last place the defen- 1. Armed police: Trigger happy. The Economist, August 15,
dant wanted to take somebody into custody was in 2014.
the middle of a busy street. The victim then raised his 2. Al Vicens (July, 2015) Native Americans get shot by cops
hands and surrendered. at an astonishing rate so why aren’t you hearing about
On reaching the victim’s location at the center of it? Mother Jones, p. 35.
3. Mike Males (August 26, 2014) Who are police killing?
the road, the defendant took hold of the victim and
Center on juvenile justice and criminal justice website
attempted to move him to the side of the road to arrest at http://www.cjcj.org/mobile/news/8113. Accessed on
and handcuff him. To move the victim, the defendant October 23, 2015.
changed the position he used to hold his weapon. 4. Amy Brittain (October 25, 2015) On duty, under fire.
Consistent with his training, the defendant held his Washington Post, p. A1.
weapon in his right hand, which he held close to the 5. Miller’s article was posted on PoliceOne web-
center of his body, while holding his empty left hand site at http://www.policeone.com/health-fitness/
out straight to take hold of the victim. The purpose of articles/8104031-When-cops-kill-The-psychology-of-
deadly-force-encounters/ Accessed on October 29, 2015.
that change in position was to maximize the distance
6. H. Lee and M.S. Vaughn (2010) Organizational factors
between the weapon and the victim. that contribute to police deadly force Liability. Journal of
The defendant led the victim back to the same Criminal Justice, 38, 193–206.
grassy area next to the road. On arriving at the 7. Michael Planty, Andrea Burch, Duren Banks, Lance
grassy area, the victim initially lay down on his back Couzens, Caroline Blanton, and Devon Cribbs (March
and elbows with his feet pointed toward the road, 2015) Arrest-Related Deaths Program: Data Quality Profile.
and then lay on his stomach with his hands pointed NCJ 248544. Washington, DC: U.S. Department of Justice.
straight over his head. The defendant straddled the 8. Shannon Bohrer and Robert Chaney (January 2010) Police
investigations of the use of deadly force can influence
victim, standing over him with his gun pointed at
perceptions and outcomes. FBI Law Enforcement Bulletin.
his back. At some point, the defendant placed his vol. 79, no. 1, pp. 1–11.
left foot on the victim’s back. The defendant used his 9. Manny Fernandez (October 11, 2015) Relatives of black
left hand to take the victim’s hands and secure them man shot by off-duty officer in Texas question police
behind his back. None of the witnesses that testified actions. New York Times, p. A-1.
at trial observed a struggle between the defendant 10. Brian Roach, Kelsey Echols, and Aaron Burnett (July,
and the victim. Moments later, the defendant fired 2014) Excited delirium and the dual response: Preventing
his weapon once at the victim, killing him. After the in-custody deaths. FBI Bulletin. vol. 83, no. 7, pp. 13–20.
11. Report obtained from the State of Connecticut, Division
defendant shot the victim, witnesses observed the of Criminal Justice website at http://www.ct.gov/Csao/
victim lying on the ground with his hands out in cwp/view.asp?q=314666 Accessed on October 29, 2015.
front of him. 12. George Fachner and Steven Carter (2015) Collaborative
As a trial judge would you convict the defendant, a police Reform Initiative: An Assessment of Deadly Force in the
officer, of murder? Philadelphia Police Department. Washington, DC: Office of
See: State v. Smith, 73 Conn. App. 173 (2002) Community Oriented Policing Services.
chapter five

Other types of misconduct

Learning objectives attitudes toward the police. Weitzer states that, regard-
less of class background, African Americans suffer sub-
After studying this chapter, the reader should under- stantial racial discrimination and this in turn influences
statnd the following concepts and issues: their assessments of police misconduct.1 He states that,
because crime rates typically are higher in both poor
• The treatment of minorities by the police black and white neighborhoods than in middle-class
• Police contact during traffic stops neighborhoods, the former are more likely to generate
• The issue of profiling frequent police–citizen encounters. And, according to
• Gender profiling issues Weitzer, more contacts can go awry as a result, and the
• Illegal searches by police chances of conflict are greater. He also notes that poor
• Police behavior during stops and frisks neighborhoods generate more frequent involuntary
• What actions the police should take when a sus- contacts with police officers; these are associated with
pect refuses to stop more negative evaluations of police than are voluntary
• Whether police have a duty to break off a high- contacts.
speed pursuit Much of the misconduct may be attributed to
• High-speed pursuits as excessive use of force implicit racial bias. For example, in many jurisdictions it
• Sexual misconduct by police officers appears to be a crime to “drive while black.” A researcher
once commented that, rather than use the phrase “driv-
ing while black,” we should use the phrase “patrolling
Introduction while racially biased.” The implicit racial bias is not
“There is no crueler tyranny than that which solely a U.S. problem. For example, the September 2015
is exercised under cover of law, and with the issue of the prestigious English journal CJM (Criminal
colors of justice …” Justice Matters) devoted the entire issue to implicit racial
bias in the United Kingdom.2
United States v. Jannotti, 673 F.2d 578, 614 Rebekah Delsol noted that “Police officers are
(3d Cir. 1982) racially profiling when they view people as suspicious
because of who they are, what they look like, or where
In earlier chapters, we explored the excessive use of they pray, rather than what they have done.” She states
force and the use of deadly force by law enforcement that race should be considered as a social construct;
officers. In this chapter, we will explore other forms of not knowable by sight. She concludes that racial pro-
misconduct. While most of the examples used in this filing exacts a high price on individuals, groups, and
text pertain to U.S. law enforcement officers, that does communities that are singled out for disproportionate
not mean that the officers in the United States are the police attention.3 She also points out that the damage
only ones involved in misconduct. that racial profiling can do is slowly being recognized
Police misconduct statistics gathered by the Cato in America and the United Kingdom.
Institute’s National Police Misconduct Reporting Project Jules Holroyd, in her discussion on recent psycho-
state that around 1% of all police officers commit police logical findings, contends that there are robust findings
misconduct in a given year. Keith Findley from the that indicate that, in a contemporary society, implicit
Wisconsin Innocence Project concluded that police mis- race bias is pervasive. He notes that the main strategies
conduct was a factor in as many as 50% of wrongful con- adopted to combat institutional racism in the United
victions involving DNA evidence. As noted by the Cato Kingdom have been to challenge “canteen culture” and
Institute, in most police misconduct cases, the misconduct the use of explicitly racist language, and to take steps
is more subtle than torture. Oftentimes, police simply to diversify the police force. He also notes that if biases
push the envelope in order to obtain a witness statement. are affecting practice then, as a matter of urgency, there
One of the most controversial issues involves allega- should be an investigation into how police practices
tions of police abuse of minority groups. As noted by should be reformed to try to prevent racial bias from
Robert Weitzer, race is one of the strongest predictors of infecting conduct.4 He concludes his article with the

85
86 Police Misconduct: A Global Perspective

comment that implicit biases are not inevitable and that The National Police Misconduct Statistics and
there are things that can be done to stop them from hav- Reporting Project’s 2010 (NPMSRP) Police Misconduct
ing an impact on actions. Statistical Report indicates that, from January 2010 to
Rebecca Roberts, in her article on “Racism and December 2010, there were 4861 unique reports of police
criminal justice,” quotes a statement by the former U.K. misconduct that involved 6613 sworn law enforcement
prime minister Tony Blair. She reports that Blair, while officers and 6826 alleged victims (Box 5.1).
discussing black-on-black crime in 2007, stated that

What we are dealing with is not general Traffic stops

social disorder; but specific groups or people According to Lynn Langton and Matthew Durose, stat-
who for one reason or another, are deciding isticians with the Bureau of Justice Statistics (BJS), in
not to abide by the same code of conduct as 2011, over 62.9 million U.S. residents aged 16 or older—
the rest of us…The black community-vast 26% of the population—had one or more contacts with
majority of whom in these communities police during the prior 12 months. For about half (49%)
are decent, law-abiding people horrified at of persons experiencing contact with police, the most
what is happening—need to be mobilized in recent contact was involuntary or police initiated. In
denunciation of this gang culture that is kill- 2011, 86% of persons involved in traffic stops during
ing innocent young black kids. But we won’t their most recent contact with police and 66% of per-
stop this by pretending it isn’t young black sons involved in street stops (i.e., stopped in public but
kids doing it. not in a moving vehicle) believed that the police both
behaved properly and treated them with respect during
Many of those listening to Tony Blair came away the contact. A greater percentage of persons involved in
with the opinion that he was declaring war on young street stops (25%) than those pulled over in traffic stops
black people in the United Kingdom. While there is no (10%) believed that the police had not behaved properly.
research on the issue, I am almost certain that his words Regardless of the reason for the stop, less than 5% of
had an effect on how the British police officers felt when persons who believed that the police had not behaved
engaging with a young black person. properly filed a complaint.5

BOX 5.1 FORMER INDIANA LAW ENFORCEMENT OFFICIALS SENTENCED

ON CONSPIRACY, TAX, AND MONEY LAUNDERING CHARGES
On June 27, 2013, in Hammond, Indiana, Ronald Slusser was sentenced to 70 months in prison and 1 year of
supervised release, and ordered to pay $198,817 in restitution to the Internal Revenue Service (IRS) for the
tax years 2005–2010. Slusser pleaded guilty to conspiring to provide false information to a federal firearms
licensee, conspiracy to defraud the Food and Drug Administration (FDA), making false statements on a tax
return, and laundering/structuring of monetary instruments. Joseph Kumstar was sentenced to 57 months in
prison and 1 year of supervised release, and ordered to pay $22,612 in restitution to the IRS for tax years 2005–
2009. Kumstar also pleaded guilty to conspiracy to provide false information to a federal firearms licensee,
conspiracy to defraud the FDA, and making false statements on a tax return. According to documents filed
by the government, Slusser, while a patrol officer with the Lake County Sheriff’s Department, and Kumstar,
while the Deputy Chief for the Lake County Sheriff’s Department, conspired to obtain restricted firearms and
defraud the FDA in order to retain restricted laser sights. The conspiracy involved the trafficking of between
25 and 99 firearms. According to the indictment, from about September 2008 until January 2010, Slusser,
Kumstar, and a third defendant used the Lake County Sheriff’s Department letterhead to create letters falsely
indicating that the weapons were purchased and would be used by the sheriff’s department, despite the fact
that the defendants used their own funds to purchase the weapons. When the weapons arrived, Slusser ille-
gally removed the upper receivers and other parts that could be removed from the lower receiver. These parts
were then illegally sold over the Internet with Slusser, Kumstar, and the third defendant retaining the profits.
In April 2007, Slusser filed his 2006 federal income tax return, understating his income by approximately
$298,566, and around December 16, 2008, Slusser made a series of cash withdrawals from various banks,
partly to avoid currency transaction reports and to hide the fact that the monies involved were derived from
an unlawful activity. Court documents also show that, in May 2010, Kumstar filed a federal tax return under-
stating his total income by about $30,102.
Chapter five: Other types of misconduct 87

According the researchers, relatively more black Profiling

drivers (13%) than white (10%) and Hispanic (10%)
drivers were pulled over in a traffic stop during their Most incidents involving profiling take place during
most recent contact with police. There were no statisti- traffic and street stops. A special report on police behav-
cal differences in the race or Hispanic origin of persons ior during traffic and street stops indicated that, in each
involved in street stops. The highlights of their research calendar year, about 26% of the population had one or
included the following findings: more contacts with police.5 The report noted that

• Persons involved in street stops were less likely • Relatively more black drivers (13%) than white
(71%) than drivers in traffic stops (88%) to believe (10%) and Hispanic (10%) drivers were pulled over
that the police had behaved properly. at a traffic stop during their most recent contact
• Of those involved in traffic and street stops, a with police. There were no statistical differences
smaller percentage of black people than white peo- in the race or Hispanic origin of persons involved
ple believed that the police had behaved properly in street stops.
during the stop. • Persons involved in street stops were less likely
• Drivers pulled over by an officer of the same race (71%) than drivers at traffic stops (88%) to believe
or ethnicity were more likely (83%) than drivers that the police had behaved properly.
pulled over by an officer of a different race or eth- • Of those involved in traffic and street stops, a
nicity (74%) to believe that the reason for the traffic smaller percentage of black people than white
stop was legitimate. people believed that the police behaved properly
• White drivers were both ticketed and searched at during the stop.
lower rates than black and Hispanic drivers. • Drivers pulled over by an officer of the same race
• Across race and Hispanic origin, persons who or ethnicity were more likely (83%) than drivers
were searched during traffic stops were less pulled over by an officer of a different race or eth-
likely than persons who were not searched to nicity (74%) to believe that the reason for the traffic
believe that the police behaved properly during stop was legitimate.
the stop. • White drivers were both ticketed and searched at
• About 1% of drivers pulled over in traffic stops lower rates than black or Hispanic drivers.
had physical force used against them by police. • Across race and Hispanic origin, persons who were
Of these drivers, 55% believed that the police had searched during traffic stops were less likely than
behaved properly during the stop. persons who were not searched to believe that the
• About 6 in 10 persons aged 16 or older involved in police had behaved properly during the stop.
street stops believed that they were stopped for a • About 1% of drivers pulled over in traffic stops
legitimate reason. had physical force used against them by police.
• About 19% of persons involved in street stops Of these drivers, 55% believed the police behaved
were searched or frisked by police. The majority properly during the stop.
of persons who were searched or frisked did not • About 6 in 10 persons age 16 or older involved in
believe that the police had a legitimate reason for street stops believed that they were stopped for a
the search (Box 5.2). legitimate reason.

BOX 5.2 FORMER TEXAS SHERIFF SENTENCED FOR MONEY LAUNDERING

On July 17, 2014, in McAllen, Texas, Guadalupe Trevino, aka Lupe Trevino, of McAllen, was sentenced to
60 months in prison and 2 years of supervised release, and ordered to pay a $60,000 fine. Trevino, the for-
mer sheriff of Hidalgo County, pleaded guilty on April 14, 2014, to conspiracy to commit money laundering.
According to court documents, Trevino received cash contributions during 2011 and 2012 for his election
campaign from an alleged drug trafficker. Trevino admitted that he had accepted the money, knowing it
was from illegal activities. Trevino also admitted that he accepted the monies directly and through others as
donations to assist with his 2012 election campaign. Some of the monies received were subsequently depos-
ited into bank accounts that Trevino controlled and were comingled with other funds. During and after the
transactions, Trevino and others acted to disguise and conceal the nature, location, source, ownership, and
control of the currency by filing false candidate/officeholder campaign finance reports and by producing
other documents.
88 Police Misconduct: A Global Perspective

Racial profiling • Provide training and establish policies to prevent

the abuse
The President’s Task Force on 21st Century Policing • Provide better supervision of officers on the street
Report noted in their summary report that racial bias • Establish an open and accessible citizen complaint
in the broader society, public concern about officer use system
of racial profiling, and the development of agency poli- • Hire more female officers (Box 5.3)
cies addressing racial profiling presented opportunities
for departments to engage officers, line supervisors,
leadership, and the broader community in proactive
and constructive strategies to ensure fair and equitable Police searches
treatment under the law. How often do police conduct illegal searches of citi-
The report recommended that all law enforcement zens? According to researchers Jon Gould and Stephen
agencies be required to have a written policy against the Mastrofski, direct field observations suggest that official
use of racial profiling and sanctions for any officer who records vastly understate the extent of constitutional
violated the policy. Furthermore, violations in this area. They cite studies indicating that
police officers are “pushing the Fourth Amendment”
• Departments should engage the community in to the verge of or beyond what is legally permissible.7
formulating their policies on racial profiling. The researchers noted that, for the past several decades,
• Early warning tracking should be initiated for all police researchers have tried to determine the extent
law enforcement officers who enforce traffic and and causes of police activities that fail to conform to the
arrest laws on minorities at a rate greater than requirements of the law.
their population census rates. Gold and Mastrofski indicate that there is no well-
• When police officers serve in the communities in developed theory that explains police conformance or
which they live, violence and abuses go down, nonconformance to the Constitution. They note that
public safety goes up, and trust is built. some persons may be more at risk than others to be
• Officer training, supervision, and performance targeted for punitive or intrusive police interventions.
review should address knowledge and skills They contend that there are a variety of relevant social
related to critical race theory, implicit bias, and dimensions—wealth, race, gender, culture, and orga-
cultural competency. nization affiliation—but all are premised on a single
point; those least able to wield social, political, or eco-
nomic power may be at the greatest risk of improper
police practices.
Gender profiling The researchers noted that wealthy suspects,
Professors Samuel Walker and Dawn Irlbeck, in a spe- because they command greater respect and are capable
cial report sponsored by the Police Professionalism of retaining a competent and motivated attorney, are
Institute at the University of Nebraska, indicated that less likely to experience improper police practices than
a national problem in police misconduct was “driving poor suspects. And suspects who show deference to
while female.”6 They related one case where a Suffolk police reduce the risk of punitive and intrusive police
County, New York police officer stopped a female driver behavior. The authors reported that a small sample of
for an alleged traffic violation and, instead of issuing her 115 suspects were analyzed in one medium-sized city
a citation, forced her to strip and walk home wearing and estimated that about 30% of the searches were
only her underpants. Reports of this incident brought unconstitutional.8
forth similar allegations—by 13 women and 1 man—of The researchers noted that if the rates were extrap-
sexual abuse arising from traffic stops conducted by the olated to cover a one-year period, based on typical
police departments on Long Island. The professors con- staffing levels, it would equal to about 12,000–14,000
cluded that “driving while female” is a nationwide prob- unconstitutional searches per year in that city, or
lem and that many departments failed to implement a roughly six unconstitutional searches per 100 citizens.
complaint system that allows the victims to come for- The researchers also noted that a search was more likely
ward, and also failed to take their complaints seriously. to be unconstitutional when the suspects were released
The professors recommended five remedies to curb than when they were charged, and that 44% of released
this type of abuse. Those were suspects were searched unconstitutionally whereas only
7% of the arrested/cited suspects were searched uncon-
• Better data collection so that the departments can stitutionally. Because a high percentage of those who
determine whether there is a problem and exactly were released had been unconstitutionally searched, no
how extensive it is records of their searches were made.
Chapter five: Other types of misconduct 89

BOX 5.3 HIGHLIGHTS

Police Use of Nonfatal Force, 2002–2011
Special Report (Nov. 2015) NCJ 249216
U.S. Department of Justice
Office of Justice Programs
Bureau of Justice Statistics

This report examines the prevalence of police threat or use of nonfatal force and whether it varies across race
and Hispanic origin. Data are from the 2002, 2005, 2008, and 2011 Police–Public Contact Survey (PPCS) supple-
ment to the National Crime Victimization Survey (NCVS).

• Across the four PPCS data collections from 2002 to 2011, black people (3.5%) were more likely to expe-
rience nonfatal force during their most recent contact with police than white (1.4%) or Hispanic (2.1%)
people.
• A greater percentage of persons who experienced the use of force (44%) had two or more contacts with
police than those who did not experience force (28%).
• Black people (14%) were more likely than Hispanic (5.9%) people, and slightly more likely than white
(6.9%) people, to experience nonfatal force during street stops.
• Of those who experienced force during their most recent contact, approximately three-quarters described
the verbal (71%) or physical (75%) force as excessive.
• Of those who experienced force during their most recent contact, 87% did not believe that the police
behaved properly.
• Traffic stops involving an officer and driver of different races were more likely to involve force (2.0%)
than traffic stops involving an officer and driver of the same race (0.8%).
• Black people (1.4%) were twice as likely as white people (0.7%) to experience force during contacts involv-
ing a personal search.
• Persons who had three or more contacts with police were more likely to experience the use of force dur-
ing the prior 12 months than persons with one or two contacts.
• The difference between white and Hispanic people in the prevalence of force during the 12-month
period was statistically significant among persons with one or two contacts, but not among those with
three or more contacts.
• Across all races and Hispanic origin, the perception that the force used was excessive varied with the
type of police action taken.
• A lower percentage of persons who were shouted or cursed at by police believed that the force was
excessive (49%) compared with those who were pushed or grabbed (79%), hit or kicked (97%), had pepper
spray used against them (81%), or had a gun pointed at them (81%).

Of the 115 cases examined, only 16% of the individ- York Police Department’s (NYPD) stop and frisk policy.
uals involved identified themselves as white. This fact, He stated that the NYPD’s purpose of stop and frisk
while from only a small sample, tends to indicate that is to remove guns from the streets. Under the law, the
race plays an important factor in an officer’s decision to NYPD is supposed to have reasonable suspicion before
search an individual. Since most officers were observed stopping and frisking an individual. Yet, over the last
for only one work shift, the researchers were unable to decade, less than 0.1% of those stopped had a gun, and
offer a rigorous test of any individual officer’s procliv- less than 5% of these were arrested. Nearly 4 million
ity to conduct illegal searches. The researchers did note, stops have occurred in New York City in the last decade,
however, that one officer made nine illegal searches with nearly 700,000 stopped in 2012. Eighty-four percent
(Box 5.4). of those stopped were black or Latino.
Peart testified that, in 2011, he was on the way to
the store when two police officers jumped out of an
Stop and frisks unmarked car and told him to stop and put his hands
Nicholas Peart testified in writing to the President’s up against the wall; he complied. Without his permis-
Task Force on 21st Century Policing regarding the New sion, they took his cell phone from his hand and one
90 Police Misconduct: A Global Perspective

BOX 5.4 CAN OFFICERS DETAIN AN OCCUPANT OF A HOUSE FOR THREE

HOURS WHILE THEY SEARCH THE HOUSE WITH A SEARCH WARRANT?
In Muehler v. Mena,* respondent Mena and others were detained in handcuffs during a search of the prem-
ises they occupied. The petitioners were lead members of a police detachment executing a search warrant
of the premises for, inter alia, deadly weapons and evidence of gang membership. Mena sued the officers
under 42 U.S.C. § 1983, and the district court found in her favor. The Ninth Circuit affirmed, holding that the
use of handcuffs to detain Mena during the search violated the Fourth Amendment and that the officers’
questioning of Mena about her immigration status during the detention constituted an independent Fourth
Amendment violation.
The U.S. Supreme Court held that
• Mena’s detention in handcuffs for the length of the search did not violate the Fourth Amendment. That
detention was consistent with Michigan v. Summers, 452 U.S. 692, 705, in which the court held that officers
executing a search warrant for contraband have the authority “to detain the occupants of the premises
while a proper search is conducted.”

The court noted there that minimizing the risk of harm to officers is a substantial justification for detain-
ing an occupant during a search, and ruled that an officer’s authority to detain incident to a search is cat-
egorical and does not depend on the “quantum of proof justifying detention or the extent of the intrusion to
be imposed by the seizure.” Because a warrant existed to search the premises, and Mena was an occupant
of the premises at the time of the search, her detention for the duration of the search was reasonable under
Summers. Inherent in Summers’ authorization to detain is the authority to use reasonable force to effectuate
the detention.
The use of force in the form of handcuffs to detain Mena was reasonable because the governmental inter-
est in minimizing the risk of harm to both officers and occupants, at its maximum when a warrant authorizes
a search for weapons and a wanted gang member resides on the premises, outweighs the marginal intrusion.
Moreover, the need to detain multiple occupants made the use of handcuffs all the more reasonable. Although
the duration of a detention can affect the balance of interests, the 2–3 hour detention in handcuffs in this case
does not outweigh the government’s continuing safety interests.

• The officers’ questioning of Mena about her immigration status during her detention did not violate
her Fourth Amendment rights. The Ninth Circuit’s holding to the contrary appears premised on the
assumption that the officers were required to have independent reasonable suspicion in order to so
question Mena. However, this court has “held repeatedly that mere police questioning does not consti-
tute a seizure.” Because Mena’s initial detention was lawful and the Ninth Circuit did not hold that the
detention was prolonged by the questioning, there was no additional seizure within the meaning of the
Fourth Amendment, and, therefore, no additional Fourth Amendment justification for inquiring about
Mena’s immigration status was required.
• Because the Ninth Circuit did not address Mena’s alternative argument that her detention extended
beyond the time for the police to complete the tasks incident to the search, this court declined to address
it.

* Muehler v. Mena, 544 U.S. 93 (2005).

of the officers reached into his pocket and removed his into his building, and tried to enter his apartment. His
wallet and keys. The officer looked through his wallet terrified younger siblings tried to call him as they heard
and then handcuffed him. The officer asked if he had strangers trying to get in. He couldn’t answer because
just come out of a particular building. “No” he told the police had confiscated his phone. The police tried to
them, he lived next door. They put him in a car, removed use his keys to get into his apartment; they banged on
his shoes and went through his socks, and asked if he the door but his siblings replied that only children were
had any marijuana in his possession and, if so, that he in the house, so they left. The police came back down-
should let them know. They then took his keys, went stairs; he was simply let go, and he felt helpless.
Chapter five: Other types of misconduct 91

Police pursuits The authors note that research has demonstrated

the impact of this on an officer’s vision, hearing, motor
How many persons are killed during high-speed car skills, and decision-making, and therefore it would
chases? According to an ABC news report, more bystand- appear necessary to prepare for the same adverse effect
ers are injured or killed during high-speed police chases it could have on fleeing suspects. While a pursuit is
than by stray bullets. In California, more than 10,000 an exciting event and involves one person running to
people have been injured and over 300 people killed escape and another chasing to catch, one important
because of police chases in the last decade, according to challenge for the officer is that there are only limited
newly released statistics from the California Highway ways to get the suspect to stop, including a tire defla-
Patrol. The report noted that, nationally, it is estimated tion devise, a precision immobilization technique (PIT)
that nearly 300 people die each year as a result of high- maneuver at proper speeds and locations, or an applica-
speed police chases. But a watchdog group reported that tion of deadly force.
the figure is easily two or three times higher because As pointed out by the authors, the dynamics of
there is no mandatory reporting system.9 most pursuits include the fleeing suspect raising risks
Exactly what is reported is left to the discretion of to the welfare of the officer, the public, and himself or
local law enforcement agencies. One watch group stated herself by not stopping and then driving recklessly. The
that bystanders who die later at the hospital are often authors contend that the fleeing suspect is attempting to
not counted in the police chase statistics. Also, babies escape the consequences of his or her actions and avoid
and children trapped inside the suspect’s vehicle are not being taken into custody. Most pursuits are for minor
counted as innocent victims. offenses, and whether those fleeing suspects have com-
Whether or not to engage in a high-speed vehicle mitted a serious crime is pure speculation.
pursuit depends on the police pursuit regulations of the The demographics of those who fled from the police
law enforcement unit and a balancing test. If the officer’s are
agency allows the pursuit, then the officer must balance
the values of crime control and offender apprehension • Average age of 26 years
with ensuring the safety of all parties who potentially • 94% were male
might be involved. This concern for safety should • 30% of the suspects crashed
include police officers, suspects, victims, bystanders, • 30% stopped
and the community. • 25% outran the police
David Schultz, Ed Hudak, and Geoffery Alpert
noted that police pursuit records provide some fright- Why they fled:
ening statistics. First, the majority of police pursuits
involve a stop for a traffic violation. Second, one per- • 32% were driving a stolen car
son dies every day as a result of a police pursuit. On • 27% had a suspended driver’s license
average, from 1994 to 1998, one law enforcement officer • 27% wanted to avoid arrest
was killed every 11 weeks in a pursuit, and 1% of all • 21% were driving under the influence
U.S. law enforcement officers who died in the line of
duty lost their lives in vehicle pursuits. Innocent third One of the more interesting findings noted by the
parties who just happened to be in the way constitute authors was that suspects who have fled from the police
42% of persons killed or injured in police pursuits. report that, once the officer terminates the pursuit, they
Furthermore, 1 out of every 100 high-speed pursuits will slow down within a reasonable period of time.
results in a fatality.10
The authors state that officers must understand that
when a suspect refuses to stop for the emergency lights Do the police have a duty to break
and siren, a common encounter quickly turns into a high- off the high-speed pursuit?
risk and dangerous event where the “show of authority”
In the McCain v. Florida Power Corp. case, the Florida
may negatively affect the suspect’s driving. And if the
state court questioned whether or not the police have
suspect continues his or her reckless operation of the
a duty to break off the chase when it becomes danger-
vehicle, the officer, basing his or her reaction on policy
ous to the public.* In the case of Brown v. City of Pinellas
and training, must respond to the potential benefit and
Park,† the pursued vehicle hit another vehicle, killing
risk of the pursuit and also understand the influence of
two people. The facts are as follows: After running a
the chase on the participants. The need to “win” and
make that arrest can be influenced by the adrenaline
* McCain v. Florida Power Corp., 593 So.2d 500, 503 (Fla. 1992).
rush felt by the officer who also must recognize that the † Brown v. City of Pinellas Park, 557 So.2d 161, (Fla. App. 2 Dist.,
fleeing suspect will have the same experience. February 16, 1990).
92 Police Misconduct: A Global Perspective

red light in Pasadena, Florida, John Deady attempted to contributory negligence of the person being
elude a sheriff’s deputy in a high-speed chase. Before chased. Accordingly, we believe the law must
this chase ended on a stretch of U.S. 19, it would pass recognize a duty in this context even though
along a 25-mile course in Pinellas County through the accident did not involve a police vehicle.*
which normal urban traffic was also passing. Thirty-
four separate traffic signals—at least some of which This case was appealed to the Florida Supreme
were ignored by this ill-fated caravan—were encoun- Court, which held that
tered along the way, thereby endangering everyone
lawfully passing through those intersections. The route 1. Police who engaged in 25-mile, caravan-type
stretched from the suburbs of St. Petersburg, north- chases owed a duty to deceased motorists.
ward through the urban area surrounding Clearwater, 2. Sovereign immunity did not shield officers from
and on beyond the fringes of Dunedin. This is part of liability.
the densely populated Tampa–St. Petersburg urban 3. Whether negligence of police officers was the prox-
area. imate cause of the accident was a jury question.†
As the chase continued, the sheriff’s deputy was
joined by at least 14 and as many as 20 separate police or Not all state decisions have agreed with the Brown
sheriff’s vehicles, each of which was pursuing Deady at case. For example, in a Kansas Supreme Court case, the
speeds that varied between 80 and 120 mph. Although court stated:
the chase was initiated by a Pinellas sheriff’s deputy,
officers from Kenneth City and the City of Pinellas Park The proper definition for “reckless disre-
also joined in. However, most of the officers involved gard,” as applied in statute requiring driv-
were from the sheriff’s department. At some point, the ers of emergency vehicles to drive with due
Pinellas County Sheriff’s Department ordered its offi- regard for the safety of all persons, is driv-
cers to discontinue the chase. For unknown or unstated ing a vehicle under circumstances that show
reasons, this order was not obeyed. a realization of the imminence of danger to
By this time, the caravan was approaching the another person or the property of another
intersection of U.S. 19 and State Road 584 at very high where there is a conscious and unjustifiable
speeds. At this intersection, Sheriff’s Corporal Daniel disregard of that danger.‡
Rusher was waiting in the turn lane, ready to move onto
the highway that Deady and the caravan were travel- Kansas therefore holds that the police are only liable
ing on. In the through-lane immediately next to Rusher to injured bystanders when the officer shows a reckless
was a vehicle occupied by two sisters, Susan and Judith disregard for human life.
Brown. Rusher made no attempt to block the intersec-
tion or to prevent the Browns from proceeding into the
intersection. Rather, he was preparing to become part of
High-speed pursuit as
the caravan. excessive use of force
When the light turned green, Rusher moved his If the police pursuit results in the death of a person,
vehicle onto U.S. 19 so that he could wait for Deady is this an excessive use of force? This question was
to pass and then join the chase. At the same time, the raised in the Plumhoff v. Richard case.§ In that case, the
vehicle containing the Brown sisters moved forward U.S. Supreme Court unanimously found that Arkansas
into the intersection to pass through it. Deady’s vehicle police officers did not use excessive force in violation
illegally entered the intersection at this precise moment of the Fourth Amendment when they shot and killed a
and struck the Browns’ vehicle at 90 mph. Deady and fleeing motorist, ending a high-speed car chase which
Susan Brown died instantly, and Judith Brown died risked the lives of both the officers and numerous inno-
3 days later. cent bystanders.
The state appellate court noted that: In July 2004, driver Donald Rickard was stopped
by a West Memphis, Arkansas police officer because
We think it manifest that a high-speed chase his car had only one operating headlight. After Rickard
involving a large number of vehicles on a pub- refused to give up his driver’s license when asked, and
lic thoroughfare is likely to result in injury the officer noticed Rickard’s nervous appearance and
to a foreseeable victim, and that the discon-
tinuance of this chase by police is likely to
* Brown v. City of Pinellas Park, at p. 177.
diminish the risk. In other words, some sub- † City of Pinellas Prak v. Brown, 604 So.2d 1222 (Fla. Sup Ct. 1992).
stantial portion of the risk is being created by ‡ Robbins v. City of Wichita, 172 P. 3rd 1187 (Ka. Sup. Ct. 2007).

the police themselves, notwithstanding any § Plumhoff, et al., v. Rickard, et al. (2015) 572 U.S. ___.
Chapter five: Other types of misconduct 93

damage to the car consistent with vehicle theft, the offi- circumstances that are tense, uncertain, and rapidly
cer ordered Rickard to step out of the vehicle. Rather evolving—about the amount of force that is necessary in
than comply, Rickard sped away. a particular situation.” Using this framework, the court
The ensuing pursuit, ultimately involving six police referred to the prior case of Scott v. Harris (2007) 550
cruisers, lasted some 5 minutes, exceeded speeds of U.S. 372, for support of its position that the officers’ use
100 mph, and came within close proximity to other of deadly force here was reasonable. In Scott, the court
motorists on the road, including swerving through traffic noted that, where a suspect leads police on a car chase
at high speeds. It was estimated that the pursuit passed that poses “an actual and imminent threat” to bystand-
more than two dozen vehicles. Eventually, Rickard lost ers, “a police officer’s attempt to terminate a dangerous
control of his vehicle, “spun out” into a parking lot, and high-speed car chase that threatens the lives of innocent
collided with one of the pursuing officer’s vehicles. Now bystanders does not violate the Fourth Amendment,
cornered, Rickard put his car into reverse in an attempt even when it places the fleeing motorist at risk of seri-
to escape, but collided with another officer’s vehicle. ous injury or death.”
At that point, two officers got out of their cars and In this case, the court saw “no basis for reaching
approached Rickard’s car, with one of the officers draw- a different conclusion.” It noted that “Rickard’s outra-
ing his pistol and ordering Rickard to stop and get out geously reckless driving posed a grave public safety
while knocking on his passenger window. Once again, risk,” as it “exceeded 100 mph,” “lasted over five min-
instead of complying, Rickard slammed on the accelera- utes,” and “passed more than two dozen other vehicles.”
tor in an apparent attempt to push through the sitting Furthermore, the court found that the chase was not
police cruiser blocking his car’s escape. At this point, “over” when Rickard was “cornered” in the parking lot,
one of the officers fired three shots into Rickard’s car. as he was still attempting to speed away, nearly hitting
Rickard then reversed in “a 180° arc,” narrowly avoid- an officer: “[u]nder the circumstances at the moment
ing a diving officer, managed to maneuver onto a side when the shots were fired, all that a reasonable police
street, and began to speed away. Other officers on the officer could have concluded was that Rickard was
scene then fired 12 shots into the car. Rickard crashed intent on resuming his flight and that, if he was allowed
shortly thereafter, and both he and his passenger died. to do so, he would once again pose a deadly threat for
Rickard’s daughter filed a federal lawsuit against others on the road.” Thus, “it [was] beyond serious dis-
the shooting officers, among other defendants, alleging pute that Rickard’s flight posed a grave public safety
“excessive force” in violation of the Fourth Amendment. risk, and here, as in Scott, the police acted reasonably in
The daughter made two central arguments considered using deadly force to end that risk.”
by the court: first, the officers used excessive force by Regarding the 15 shots fired, the court stated that
using deadly force to terminate the pursuit, and second, it stands to reason that, if police officers are justified in
the officers used excessive force by firing 15 shots in firing at a suspect in order to end a severe threat to pub-
total to end the pursuit. lic safety, the officers need not stop shooting until the
The district court favored the daughter’s arguments, threat has ended. This is what occurred, as during the
ruling that the defending officers’ conduct violated the 10 second span, Rickard never abandoned his attempt to
Fourth Amendment and also that they were not enti- flee. The court did note that, had the officers initiated a
tled to “qualified immunity,” as their conduct violated second round of shots after an initial round had clearly
“clearly established” Fourth Amendment law. The Sixth incapacitated Rickard and had ended any threat of con-
Circuit Court of Appeal agreed on both points. tinued flight, or if Rickard had clearly given himself up,
The Supreme Court reversed, rejecting both of the the results may have been different.
daughter’s contentions and the lower courts’ rulings. The court held that the passenger’s presence in the
Specifically, the court made two rulings: first, none of car did not alter the analysis before it, because the pas-
the officers’ conduct violated the Fourth Amendment, senger’s presence in the car did not enhance Rickard’s
and second, even if it did, they were entitled to “quali- Fourth Amendment rights. It would be perverse if
fied immunity.” The court also engaged in an interesting his disregard for the passenger’s safety worked to his
discussion about Rickard’s passenger’s right to be free benefit.
from unreasonable force under the Fourth Amendment. The passenger’s presence did not alter the analysis of
Strongly affirming Graham v. Connor’s familiar any possible violation of Rickard’s Fourth Amendment
Fourth Amendment analysis, the court reiterated the rights, because they are personal rights that may not be
rule that allegations of unreasonable force must be vicariously asserted. If a suit were brought on behalf of
analyzed “from the perspective of a reasonable officer the passenger, under the Fourth Amendment or state
on the scene, rather than with the 20/20 vision of hind- tort law, the analysis would focus on the officer’s actions
sight… We thus allow for the fact that police officers in relation to his right to be free from unreasonable
are often forced to make split-second judgments—in force.
94 Police Misconduct: A Global Perspective

Sexual misconduct The AP investigation looked at court records and

news reports during the period 2009–2014. The report
In the International Association of Chiefs of Police noted that during that period, Alabama decertified 20
(IACP) Executive Guide on Addressing Sexual Offenses officers for sex-related misconduct. Arizona decerti-
and Misconduct by Law Enforcement, sexual miscon- fied 27 officers during that period, Florida decertified
duct by law enforcement is defined as any behavior by 162, and Georgia 161. The report excluded the states of
an officer that takes advantage of the officer’s position California, Massachusetts, District of Columbia, New
in law enforcement to misuse his authority and power Jersey, and New York because those states did not have
(including force) in order to commit a sexual act, initi- statewide records, provide the information, or decertify
ate sexual contact with another person, or respond to officers at the state level.
a perceived sexually motivated cue (from a subtle sug- The Cato Institute’s NPMSRP noted that sexual
gestion to an overt action) from another person. It also misconduct by the police is one form of police brutal-
includes any communication or behavior by an officer ity that nobody talks about, but that officer-involved
that would likely be construed as lewd, lascivious, inap- sexual misconduct consistently ranks first or second
propriate, or conduct unbecoming of an officer and vio- among the types of police misconduct that the NPMSRP
lates general principles of acceptable conduct common tracks each month.13 Some of the cases reported by the
to law enforcement.11 NPMSRP included
In November 2015, the Associated Press (AP) stated
that, in a yearlong investigation of sexual misconduct • A Louisiana deputy who was fired after he was
by U.S. law enforcement, about 1000 law enforcement charged with sexual battery and forcible rape of
officers lost their badges in a 6-year period for rape, sod- a juvenile; no other details were released pending
omy, and other sexual assault; sex crimes that included an ongoing investigation.
possession of child pornography; or sexual misconduct • A Massachusetts police officer who was arrested
such as propositioning citizens or having consensual for viewing child pornography on a government
but prohibited on-duty intercourse.12 computer in the department’s evidence room.
The AP report stated that the number was unques- • An Alabama State trooper who had been indicted
tionably an undercount because it represented only for allegedly sexually abusing the female pas-
those officers whose licenses to work in law enforce- senger of a car belonging to the person driving
ment were revoked, and not all states take such action. her home who was arrested on outstanding war-
The report noted that California and New York— rants. The officer drove her down a dirt road
with several of the nation’s largest law enforcement and began to molest her, though he claims it was
agencies—offered no records because they have no consensual.
statewide system to decertify officers for misconduct. • A Florida police officer with an apparent penchant
Even among states that provided records, some reported for spanking women, who was recently sentenced
that no officers were removed for sexual misdeeds even to probation for pulling the pants off of an unwill-
though cases were identified via news stories or court ing victim and spanking her a dozen times, is now
records. seeking to cut that probation short.
The AP report quoted the Sarasota, Florida, police • A Louisiana deputy who was arrested on rape
chief as stating “It’s happening probably in every law charges for allegedly forcing a woman to perform
enforcement agency across the country.” The chief who an unspecified sexual act on him under threat of
had helped study the problem for the IACP is reported being jailed after a traffic stop arrest.
to also have stated “It’s so underreported and people are • A Tuskegee University, Alabama, police officer
scared that if they call and complain about a police offi- who was indicted for conspiracy to commit rape
cer, they think every other police officer is going to be and a count of conspiracy to commit sodomy of
then out to get them.” a 15-year-old girl who was allegedly raped by
The report noted that law enforcement officers fre- a second officer who was arrested a few weeks
quently accused of sexual misconduct have jumped previously.
from job to job and sometimes faced fresh allegations, • A California police officer who was arrested at
including the raping of women, because of a tattered work on charges of lewd acts with a child, for
network of laws and lax screening that allowed them to allegedly molesting a 14- or 15-year-old child.
stay on the beat. The report also noted a broken system
for policing bad officers, with significant flaws in how Many of the victims reported that the coerced sex
agencies deal with those suspected of sexual miscon- was not based on the threat of arrest and jail but that the
duct and with glaring warning signs that go unreported officer was armed and made suggestive moves toward
or are overlooked. his gun while discussing sex. The Cato project also noted
Chapter five: Other types of misconduct 95

that cultural issues within police departments contrib- that the city will not investigate those accusations in
ute to climates where sexual predators feel emboldened earnest.” The lawsuit also alleged that “This … victim
or accepted since officers can tend toward chauvinistic reported the rape, yet the Chicago Police Department
attitudes as part of the “macho cop” image many try to allowed (officers) to retain their employment as patrol
project. These can be tempered by proper management, officers, thus enabling them to commit a similar crime
training, and policies prohibiting sexually discrimina- … less than 1 month later.”16
tory behaviors and harassment and strict enforcement
of those policies. The report also indicated that a lax
disciplinary response to sexual misconduct reports was Abusive interrogation
a massive contributing factor to repeat sexual miscon- Consider the facts of the situation set forth in the case
duct by officers because it reinforces an attitude that the of Dahlia v. Rodriguez.* Following an armed robbery
authority to sexually assault the people they are sworn on December 28, 2007, at a cafe in Burbank, California,
to protect comes as a fringe benefit of the authority of Dahlia was assigned to assist in the robbery investiga-
a badge.13 The report concludes with the statement that tion, which was supervised by defendant Lieutenant
victims of sexual assault often feel safe because they Jon Murphy. The day after the robbery, Dahlia observed
believe that the police will help them, but soon realize defendant Lieutenant Omar Rodriguez grab a suspect
that victims of officer-involved sexual misconduct can’t by the throat with his left hand, retrieve his handgun
even trust the police. from its holster with his right hand, and place the barrel
In 2003, the federal government enacted the Prison of the gun under the suspect’s eye, saying, “How does
Rape Elimination Act (PREA) to protect prison inmates. it feel to have a gun in your face m------f---.” Rodriguez
Many advocates believe that a similar act should be noticed Dahlia looking on in disbelief. Later that same
enacted to help those who are sexually abused while evening, Dahlia heard yelling and the sound of some-
in police custody, detained on the street, or in patrol one being hit and slapped from inside a room where
vehicles. One advocate was reported to have stated defendant Sergeant Edgar Penaranda was interviewing
that the PREA had established some requirements for another suspect.
the independent investigation of prisoners’ accusa- Dahlia was subsequently excluded from participat-
tions of rape and sexual assault, which could benefit ing in suspect interviews, and high-ranking officers
those who come forward to report sexual assault by a within the department essentially took control of the
police officer.14 investigation. Witnesses and suspects continued to be
The Rape, Abuse, and Incest National Network physically assaulted and beaten in the interview rooms,
website contends that sexual assault is one of the most while officers prevented anyone from walking past the
unreported crimes and that only 32 out of every 100 rooms or into the audio room. Dahlia met with Murphy
rapes are even reported to the police.15 It is estimated to disclose the abuse that he had witnessed. Dahlia told
that victims of officer-involved sexual assault are even Murphy that the interviews were getting too physical
less likely to report the crime than the victims of sex- and that he was having difficulty maintaining order in
ual assaults not involving officers. There appears to the investigation. Murphy responded by telling Dahlia
be a natural reluctance to report to the police when a to “stop his sniveling.”
police officer is the offender. From a review of some The physical beatings continued in interview rooms
of the cases, it appears that officers tend to choose and in the field, evidenced by the booking photos of
victims that would lack so-called credibility in the various suspects. At one point, Chief of Police Stehr
eyes of other law enforcement officers, whether it was appeared at a briefing and, on learning that not all of
somebody who was engaged in sex work or somebody the robbery suspects were in custody, said, “Well then
who was intoxicated or using drugs, and then they beat another one until they are all in custody.”
often use that justification for why the victim cannot After witnessing the misconduct and abuse, Dahlia
be believed. approached Murphy a second time and pleaded that
In reviewing victims of officer-involved sexual con- he did not have control over the case. Murphy became
duct reports, a common complaint is that the depart- upset and told Dahlia that he “didn’t want to hear this
ment, after receiving the complaint, failed to investigate shit again” and that he was “tired of all the B.S.” In
it. For example, in May 2011, a 22-year-old woman January 2008, Dahlia and another detective met with
claimed that she was raped by two on-duty Chicago Murphy a third time, telling him that “the beatings have
police officers. In her section 1983 federal lawsuit, she to stop” and “the madness ha[s] to stop.” Murphy did
alleged a widespread practice of abuse within the nothing to respond to these complaints and the abusive
department that goes largely unpunished. In her law- tactics continued.
suit, she alleged that “Chicago police officers accused
of sexual misconduct against citizens can be confident * Dahlia v. Rodriguez, 735 F.3rd 1060 (9th Cir. 2013).
96 Police Misconduct: A Global Perspective

On May 11, 2009, the Los Angeles County Sheriff’s Weitzer, as a result, there are more contacts to go awry
Department (LASD) interviewed Dahlia about the a as a result, and the chances of conflict are greater. He
robbery investigation. During the interview, Dahlia also notes that poor neighborhoods generate more fre-
disclosed the defendants’ misconduct, threats, intimi- quent involuntary contacts with police officers; these
dation, and harassment. Four days later, Dahlia was are associated with more negative evaluations of police
placed on administrative leave pending discipline. than are voluntary contacts.
Dahlia alleges that he was subjected to adverse Much of the misconduct may be attributed to
employment actions as a result of his protected speech implicit racial bias. For example, in many jurisdic-
activities and that there was no legitimate justification tions, it appears to be a crime to “drive while black.”
for the adverse actions. In alleging a § 1983 violation, One researcher once commented that rather than use
Dahlia claims that defendants’ retaliatory acts included, the phrase “driving while black” we should use the
inter alia, threats, ostracism, denial of employment phrase “patrolling while racially biased.” The implicit
opportunities, undue scrutiny of work performance, racial bias is not solely a U.S. problem. For example the
denial of continued employment, and malicious state- September 2015 issue of the prestigious English journal
ments calculated to destroy his reputation. CJM (Criminal Justice Matters) devoted the entire issue to
The appellate court ruled that malfeasance by implicit racial bias in the United Kingdom.
officers of the Burbank Police Department, which Rebekah Delsol noted that “Police officers are
Dahlia witnessed, and the threats and intimidation he racially profiling when they view people as suspicious
endured—if true—were shocking and intolerable. “Yet, because of who they are, what they look like, or where
we must stay our collective hand, ever mindful that the they pray, rather than what they have done”. She states
Constitution does not provide a cure for every social ill”, that race should be considered as a social construct; not
nor does it vest judges with a mandate to try to remedy knowable by sight. She concludes that racial profiling
every social problem. Alongside his First Amendment exacts a high price on individuals, groups, and commu-
cause, Dahlia brought claims under the provisions of nities that are singled out for disproportionate police
California law that (1) protect public employees from attention. She also points out that the damage that racial
retaliation for disclosing an abuse of authority or a dan- profiling can do is slowly being recognized in both
ger to the public safety, California Government Code § America and the United Kingdom.
53298; and (2) that shield employees who complain to Jules Holroyd, in her discussion on recent psycho-
a government agency, California Labor Code § 6310. logical findings, contends that there are robust findings
These are the kinds of remedies that the Supreme Court that indicate that, in a contemporary society, implicit
has explained that whistleblowers should pursue in the race bias is pervasive. He notes that the main strategies
absence of a constitutional claim. However righteous adopted to combat institutional racism in the United
the aims, when the court stretches the Constitution to Kingdom have been to challenge “canteen culture” and
match its sense of justice, the courts exceed “the judicial the use of explicitly racist language, and to take steps
power” vested to the courts in Article III and, by render- to diversity the police force. He also notes that, if biases
ing state law nugatory, disserve our federal union. are affecting practice, then as a matter of urgency there
In earlier chapters, we explored the excessive use of should be investigation into how police practices should
force and the use of deadly force by law enforcement be reformed to try to prevent racial bias from infecting
officers. In this chapter, we will explore other forms of conduct. He concludes his article with the comment that
misconduct. While most of the examples used in this implicit biases are not inevitable and there are things
text pertain to U.S. law enforcement officers, that does that can be done to stop them from having an impact
not mean that the officers in the United States are the on actions.
only ones involved in misconduct. Rebecca Roberts, in her article “Racism and crimi-
One of the most controversial issues involves allega- nal justice,” quotes a statement by the former United
tions of police abuse of minority groups. As noted by Kingdom prime minister Tony Blair. She reports that
Robert Weitzer, race is one of the strongest predictors of Blair, while discussing black-on-black crime in 2007,
attitudes toward police. Weitzer states that, regardless stated that
of class background, African Americans suffer substan-
tial racial discrimination and that this in turn influences What we are dealing with is not general
their assessments of police misconduct. He states that, social disorder; but specific groups or people
because crime rates typically are higher in both poor who for one reason or another, are deciding
black and white neighborhoods than in middle-class not to abide by the same code of conduct as
neighborhoods, the former are more likely to generate the rest of us…The black community-vast
frequent police–citizen encounters. And, according to majority of whom in these communities
Chapter five: Other types of misconduct 97

are decent, law-abiding people horrified at Retaliation

what is happening—need to be mobilized in
denunciation of this gang culture that is kill- In Abella v. Simon,† Officers Juan Rodriguez, Benjamin
ing innocent young black kids. But we won’t Rivera, and Richard Baez, and their supervising officer,
stop this by pretending it isn’t young black Major Frank Bocanegra, appealed the denial of their
kids doing it. motion to dismiss Gustavo Abella’s third amended com-
plaint based on qualified immunity. Abella complained
Many of those listening to Tony Blair came away about retaliation by each of the officers. The appellate
with the opinion that he was declaring war on young court affirmed.
black people in the United Kingdom. While there is no Abella complained that Rodriguez, Rivera, Baez,
research on the issue, his comments undoubtedly had and their superior officer, Bocanegra, retaliated against
an effect on how British police officers felt when engag- Abella for engaging in conduct protected by the First
ing with a young black person. Amendment. Abella alleged that his conduct included
displaying a political sign in his truck, reporting police
misconduct, and photographing officers.
Other police misconduct Abella complained that Rodriguez had retaliated
The types of misconduct that police have been involved against Abella and his family for displaying a political
are probably too varied to list. In this section, a few of sign, voicing their opinion about the ordinance at town
those types are discussed. The types of misconduct are meetings, and filing grievances against Rodriguez.
frequently grouped by type of corruption. These include Abella alleged that Rodriguez ordered Abella to remove
the sign from his truck; threatened to issue a citation
• Demanding free or discounted meals or services to Abella if he failed to remove the sign; appeared
• Demanding and receiving kickbacks outside Abella’s home and his daughter’s school;
• Thefts of opportunity such as stealing money from and “made signs” at Abella while following him around
a dead victim or a suspect town. Abella also alleged that, after he photographed
• Shakedowns Rodriguez outside the school, Rodriguez issued a cita-
• Bribery tion to Abella for a parking violation and told Abella
• Internal payoffs that “the complaints he had filed with the Commission
• Protection payments on Ethics would not do anything.”
• Abuse of authority Abella’s complaint alleged that Rivera had retali-
• Street justice ated for Abella’s complaints about police misconduct.
• Lying and false testimony Abella alleged that Rivera had issued Abella with a
parking citation, followed him home, and then yelled
out, asking Abella’s wife if she wanted his badge num-
ber or the phone number for the Miami–Dade internal
Stealing money from a suspect affairs office. Later, during a hearing about the citation,
In the New Jersey case of In Re Furlow,* the appellant Rivera grumbled about being assigned to the school
was a police officer with the City of Newark Police because of the grievances filed by Abella.
Department (NPD). On December 3, 2002, the appellant Abella also complained that Baez interfered with
arrested a suspect for possession of a handgun, know- his being photographed and retaliated for the photos
ing that the charge was false; took money from the sus- and having a grievance filed against him. Abella alleged
pect for his personal gain; failed to submit the money that his wife photographed Baez standing outside her
as property/evidence; and falsified the police report. On house and Baez approached the house to question her
April 18, 2003, the appellant took money from another about the photos. Because the encounter frightened
suspect for his personal gain, and failed to submit the Abella’s wife, she reported Baez’s conduct to his super-
money into property/evidence. The appellant admitted visor. Two days later, Baez noticed that he was being
both thefts to the NPD internal affairs department in photographed outside the school, walked to Abella’s
August 2004, and signed a plea agreement promising vehicle, and pushed the camera into Abella’s face.
to cooperate in an investigation of police corruption. Abella’s complaint also alleged that Bocanegra
However, in 2009 and 2012, the appellant falsely testi- deliberately ignored the grievances against his subor-
fied in court that he was coerced into making his 2004 dinate officers and failed to discipline them for their
confession. The appellate court denied his claim. alleged misconduct. Abella alleged that his attorney

* 2014 WL 9966171 (NJ app. Div. 2014). † 522 Fed. Appx. 872 (11th Cir. 2013).
98 Police Misconduct: A Global Perspective

complained to Bocanegra about Rodriguez, but Abella Golodner’s theory based on the second alleged moti-
did not witness a change in Rodriguez’s conduct. Abella vating factor was the fact that he had previously “made
also alleged that he and his wife filed grievances and complaints about police misconduct to the New London
sent letters and e-mails to Bocanegra about his officers’ Police Department.” Golodner claimed that, because
misconduct. the officers “harbored actual malice against” him and
To survive a motion to dismiss, based on retaliation did not “want to have anything to do with him,” they
for exercising rights under the First Amendment, Abella disregarded his complaints concerning disputes he had
had to allege facts establishing, “first, that his speech with his neighbors, and further because the officers
or act was constitutionally protected; second, that the “knew that he had previously complained about police
officers’ retaliatory conduct adversely affected the pro- misconduct to their Superiors at the New London Police
tected speech; and third, that there is a causal connec- Department, they were inspired by a malicious intent
tion between the retaliatory actions and the adverse to retaliate against him for having complained against
effect on speech.” The First Amendment affords the a brother officer.” He asserted that his arrests based on
broadest protection to political expression, and protects this motive were unsupported by probable cause. The
the rights of speech and to petition for redress, and to appellate court held that Golodner had alleged that the
photograph police activities. To establish a causal con- individual defendants’ conduct violated a clearly estab-
nection, Abella had to allege that his protected conduct lished right.
was a “motivating factor behind” the officers’ alleged
misconduct, and that the history of widespread abuse
put their responsible supervisor on notice of the need
False testimony
to correct the alleged deprivation, and that he failed to A Philadelphia police officer was charged with perjury
do so. in 2014 after a complaint was made to the internal affairs
The district court did not err by denying the officers’ unit about testimony he gave in 2011. The indictment
motion to dismiss based on qualified immunity. Abella indicated that the officer gave false testimony during a
alleged facts sufficient to establish that Rodriguez, hearing about the circumstances surrounding the arrest
Rivera, and Baez had retaliated because Abella had of a suspect. The officer testified that, when the suspect
exhibited a political sign, reported police misconduct, was arrested, the car’s windows were tinted. Three other
and photographed the officers. Abella also alleged facts witnesses testified in court that the windows were not
sufficient to establish that Bocanegra knew about, and tinted. When the officer and his partner stopped the
failed to correct, his subordinate officers’ unlawful con- vehicle in question and searched it, they found narcotics.
duct. Although Abella was not deterred by being fol- The officer testified that, after stopping the car, he and his
lowed, stopped, ticketed, and intimated by the officers, partner waited for a search warrant before conducting
those actions would likely deter a person of ordinary the search. That statement was determined to be false.
firmness from the exercise of First Amendment rights. Why would the officer commit perjury? Probably
The appellate court denied the officers’ motion to because after he and his partner discovered the narcot-
dismiss. ics as the result of their illegal search, they concluded
In Golodner v. Berliner,* the plaintiffs Golodner and that it was noble to lie to make sure that the criminals
his company brought suit under 42 U.S.C. 1983, alleg- would be prosecuted.
ing that that the City of New London and two city
officials retaliated against Golodner for exercising his
Corruption
rights under the First Amendment when he filed an
earlier lawsuit against the city and several of its offi- A Philadelphia police officer was promoted in 2015
cers. The claims in the first lawsuit arose from a dis- after he was acquitted of corruption charges after being
pute that Golodner had had with his neighbors, and implicated in a wide-ranging federal investigation. The
that he was arrested multiple times as a result of those police commissioner had described the officer’s involve-
disputes. Golodner asserted two factors that motivated ment as one of the worst cases of corruption he had
the arresting officers: a constitutionally impermissible seen. The commissioner’s decision to dismiss the officer
policy promulgated by the city, and malice directed and the others involved was overturned by an arbitrator
toward him personally. He claimed that the city’s pol- and the officers were reinstated.
icy of arresting both the complaining witness and per- The officer and the others were charged in a sweep-
son complained about in the context of a neighborhood ing racketeering conspiracy case in which prosecutors
dispute resulted in a denial of equal protection of the alleged that the officers beat drug suspects, stole money
law. from them, and then filed false police reports to cover
up their actions. One witness testified that the officers
* 770 F.3d. 196 (2nd Cir. 2014). held him over the balcony of his high-rise apartment
Chapter five: Other types of misconduct 99

and threatened to let him fall to his death if he did not Malicious prosecution
provide information on his drug business.
Since 2012, the District Attorney’s Office has refused In Groark v. Timek,† plaintiff Matthew Groark alleged
to accept testimony in cases stemming from arrests that Atlantic City police officers Frank Timek and
by any of the officers implicated in the criminal case. Sterling Wheaten beat him up without provocation and
Now that the officers have been reinstated, prosecutors then filed false criminal charges. The plaintiff learned,
announced that they will decide on a case-by-case basis in discovery, that from May 2001 to November, 2013.
whether to allow their testimony in future cases. To date, Timek and Wheaten had collectively been the subject of
393 convictions in criminal cases that relied on arrests approximately 78 complaints similar to those asserted
or testimony by the six officers have been reversed. An here—excessive force, assault, threats, improper search
additional 89 are scheduled to be reversed. and arrest, and malicious prosecution. Atlantic City’s
According to a New York Post story, the top rea- Police Department (“Atlantic City”) did not sustain any
son people are falsely imprisoned is because of offi- of the complaints and Timek and Wheaten were never
cial misconduct. The article states that 47% of cases disciplined. The plaintiff’s Motion to Compel Discovery
of people falsely imprisoned are the result of miscon- asked the court to order Atlantic City to produce Timek
duct by authorities. Prosecutorial misconduct includes and Wheaten’s complete internal affairs (IA) files so that
withholding exculpatory evidence from the defense, the plaintiff could determine if Atlantic City’s IA unit
destroying evidence, and allowing unreliable wit- and investigations were a sham.
nesses or fraudulent experts to testify. Police mis- The plaintiff argued that Atlantic City was delib-
conduct includes coercing false confessions, lying on erately indifferent to its police officers’ misconduct
the witness stand, or failing to turn over evidence to and condones the obvious consequences of its failure
prosecutors.17 to properly train, supervise, and discipline its officers.
The plaintiff also argued that he wanted to get to the
bottom of why it appeared that Timek and Wheaten
Executing search warrants in an had repeatedly used excessive force with impunity. The
unreasonable manner plaintiff’s motion had been fully briefed and argued.
The court granted the motion. The court also noted that
In Basilio v. City of Philadelphia,* Mercedes Basil asserted
complaints made against Timek and Wheaten by senior
a claim for damages from the City. Specifically, the
police department personnel fared no better than citi-
amended complaint alleged that it is the pattern and
zen complaints. The charges made by Chief Snellbaker,
practice of the City, through its police officers, “to exe-
Captain Wm. Burke, Captain Dooley, and Acting Chief
cute search warrants in an unreasonable manner, which
Jubilee were also “not sustained.” The same was true for
includes destroying personal property, ruining personal
Chief Mooney’s complaint against Wheaten of “simple
belongings, and disrupting the homes and businesses
assault and standard of conduct.”
of citizens in violation of the Fourth and Fourteenth
Amendments of the United States Constitution.”
Plaintiffs claimed that the City “routinely executes Summary
search warrants in an unreasonable manner that causes
unnecessary destruction of property.” They asserted • The NPMSRP states that around 1% of all police
that, as a direct and proximate result of this policy, the officers commit police misconduct in a given year.
individual defendants executed the search of Basilio’s • As noted by the Cato Institute, in most police mis-
home in an allegedly unreasonable and violent manner, conduct cases, the misconduct is more subtle than
used excessive force, and caused unnecessary damage torture. Oftentimes, police simply push the enve-
to Basilio’s property. lope in order to obtain a witness statement.
The appellate court in the Basilio case found no evi- • One of the most controversial issues involves alle-
dence suggesting that the City should have had notice gations of police abuse of minority groups. As
about any history or pattern of these individual officers, noted by Robert Weitzer, race is one of the stron-
or of the narcotics officers in general, executing search gest predictors of attitudes toward police.
warrants in the unreasonable manner alleged in this • The NPMSRP Police Misconduct Statistical Report
case. Therefore, summary judgment for the City was indicates that, from January 2010 to December
appropriate on this claim. The decision, however, indi- 2010, there were 4861 unique reports of police mis-
cated that had the city known, it probably would have conduct that involved 6613 sworn law enforcement
been liable for failure to train. Note: The plaintiff’s case officers and 6826 alleged victims.
against the individual officers was not dismissed.

* Basilio v. City of Philadelphia, 2013 WL 4823146 (ED, Pen. 2013). † 989 F.Supp 2d. 378 (NJ DC, 2013).
100 Police Misconduct: A Global Perspective

POLICE PERFORMANCE MANAGEMENT AND CRIME REPORT MANIPULATION

By John A. Eterno, PhD and Eli B. Silverman, PhD

Police crime reports are a staple of research, crime analysis, police strategies, real estate values, politics, and
much more. They are significant because they determine and provide the public face of the crime rate. Often
mayors and other politicians will talk about their cities, towns, and villages being the safest, based on these
crime numbers. These numbers will influence real estate values, tourism, obtaining money for grants, police
tactics, and many other things. Subsequently, there are enormous pressures on the police to make sure these
numbers are “going in the right direction.”
Police agencies throughout the United States are now using a performance management system known
as Compstat (to compare statistics). Under this system, commanders of local areas such as precincts are held
strictly accountable for the crimes that occur in their commands. The commanders are constantly compared
to what happened last year with respect to these crime numbers. The focus of Compstat is not simply on
any crime numbers, but more specifically on the 7 major felonies that are used to determine the crime rate
(murder/nonnegligent manslaughter, robbery, burglary, aggravated assault, grand larceny, grand larceny
auto, forcible rape (arson is also included but not included Compstat meetings).
Commanders are grilled quite extensively about these index crimes. If the numbers are going up, com-
manders may be in trouble. At times, commanders are yelled at and berated in front of their peers. The informal
message is: if crime goes up you may lose your command and have a terrible career—pigeon-holed as a failure.
However, if crime decreases, you may be rewarded with promotion and an excellent career. Based on a survey
of 1770 retired New York City officers, we know that the pressures on commanders to ensure that crime goes
down as well as the pressures to downgrade crime have skyrocketed in recent years.18 Additionally, this model
of policing in New York City has been emulated throughout the United States and the world.
Police are tasked with taking crime reports from the public. With pressure so high, there is strong temp-
tation to manipulate the crime reports. We have found that police will succumb to this temptation and
manipulate the reports. How is this done? In short, it is “creative accounting.” Based on research19 conducted
in New York City, there are many ways to change the classification of reports—often very nefariously. Some
examples:

• A police captain racing with lights and sirens will go to the scene of an obvious homicide. The captain
then orders the lieutenant to take the report as “investigate a dead human body” rather than the homi-
cide it actually clearly is. This buys time to try to find any way possible to keep the crime away from the
7 majors such as: the District Attorney does not charge homicide, the lack of clarity in the case allows
it to be classified as something else, the medical examiner leaves room for another interpretation. It is
ambiguity that is the key. Any little bit will be used to keep the report out of the 7 majors.
• Officers in crime analysis units reviewing websites to find lower prices for stolen property so that the
crime could be lowered to petty larceny (downgraded).
• Taking reports for lost property, even though the property was obviously stolen.
• Leaving a few key words out of a report to lower a crime classification. This was especially a problem
in New York City with sex crimes victims, who had to approach the police commissioner because the
problem became so severe. One victim advised how she was groped and attacked in an attempted
rape (which is counted as a full rape in the crime reporting system that counts index crime). The offi-
cers responding to the scene took the report but left out key words that reduced the crime to a minor
misdemeanor crime forcible touching. The victim, however, knew the right people and the report was
changed to reflect the rape. However, what happens to the vast majority of victims who do not know
anyone?

Creative accounting involves changing words, calling victims back to change stories, scrubbing reports
by numerous officers to find another crime to classify the acts (often parsing the crime into its constituent
parts such as criminal trespass and petit larceny (rather than burglary). Officers might take one big report
for numerous burglaries in apartment buildings rather than the correct way of recording each apartment
as a burglary—one burglary for each apartment.
Chapter five: Other types of misconduct 101

Officers today will look for any ambiguity at all to classify a report as a non-seven majors offense. There
are numerous officers dedicated to this task at the lower level. One commander even took an officer off patrol
to try to find cars that were reported stolen but were not. Such accounting practices are a completely different
way of counting, compared with the past and with the rules required by the Federal Bureau of Investigation,
who collects and collate these reports.
The pressures on commanders ultimately lead to these unethical behaviors. These pressures are
inherent in the police performance management system known as Compstat. With most departments now
using some form of Compstat, how much crime report manipulation is taking place? Just a short list of
jurisdictions where crime report manipulation has been reported includes Atlanta, Baltimore, Broward
County (Florida), Dallas, Los Angeles, Milwaukee, Mobile (Alabama), New Orleans, New York City, and
Philadelphia. Clearly this is not a localized problem. It influences the official crime report numbers that
are used for numerous purposes. It appears that the eminent social psychologist20 is correct when he
writes, “The more any quantitative social indicator is used for social decision-making, the more subject it
will be to corruption pressures and the more apt it will be to distort and corrupt the social processes it is
intended to monitor.”

• In 2011, over 62.9 million U.S. residents age 16 or these were arrested. Nearly 4 million stops have
older, or 26% of the population, had one or more occurred in New York City in the last decade, with
contacts with police during the prior 12 months. nearly 700,000 people stopped in 2012. Eighty-four
For about half (49%) of persons experiencing con- percent were black or Latino.
tact with police, the most recent contact was invol- • How many people are killed during high-speed
untary or police initiated. car chases? According to an ABC news report,
• In 2011, 86% of persons involved in traffic stops dur- more bystanders are injured or killed during high-
ing their most recent contact with police and 66% speed police chases than by stray bullets.
of persons involved in street stops (i.e., stopped in • Plumhoff v. Richard case: The U.S. Supreme Court
public but not in a moving vehicle) believed that unanimously found that Arkansas police offi-
the police both behaved properly and treated them cers did not use excessive force in violation of the
with respect during the contact. Fourth Amendment when they shot and killed a
• Most incidents involving profiling take place dur- fleeing motorist, ending a high-speed car chase
ing traffic and street stops. A special report on that risked the lives of both the officers and numer-
police behavior during traffic and street stops ous innocent bystanders.
indicated that in each calendar year, about 26% • In November 2015, the AP stated that, in a year-
of the population had one or more contacts with long investigation of sexual misconduct by U.S.
police. law enforcement, about 1000 law enforcement offi-
• The President’s Task Force on 21st Century Policing cers lost their badges in a 6-year period for rape,
Report noted, in their summary report, that racial sodomy, and other sexual assault; sex crimes that
bias in the broader society, public concern about included possession of child pornography; or
officer use of racial profiling, and the development sexual misconduct such as propositioning citi-
of agency policies addressing racial profiling pre- zens or having consensual but prohibited on-duty
sented opportunities for departments to engage intercourse.
officers, line supervisors, leadership, and the • The types of misconduct that police have been
broader community in proactive and constructive involved are probably too varied to list.
strategies to ensure fair and equitable treatment
under the law.
• How often do police conduct illegal searches of Practicums
citizens? According to researchers Jon Gould and Practicum one
Stephen Mastrofski, direct field observations sug-
gest that official records vastly understate the In 2015, a U.S. border agent in South Texas was arrested
extent of constitutional violations in this area. in connection with the decapitation of a Honduran
• Under the law, the NYPD is supposed to have rea- national earlier in the year. Cameron County sheriff’s
sonable suspicion before stopping and frisking an deputies arrested a 30-year-old U.S. border patrol agent
individual. Yet, over the last decade, less than 0.1% for possession of a controlled substance. The officer
of those stopped had a gun and less than 5% of now faces charges of capital murder and engaging in
102 Police Misconduct: A Global Perspective

organized criminal activity charges, local authorities 7. Jon Gold and Stephen Mastrofski (July, 2004) Suspect
said. searches: Assessing police behavior under the U.S.
The officer was arrested at his home in Hebbronville Constitution. Criminology and Public Policy, 3(3), 315–361.
8. Jon Gold and Stephen Mastrofski (July, 2004) Suspect
after local authorities seized around a kilo of cocaine,
searches: Assessing police behavior under the U.S.
three handguns, and nearly $90,000 hidden in a safe Constitution. Criminology and Public Policy, 3(3), 331.
at his mother-in-law’s home in San Juan. It is believed 9. David Wright (June 19, 2012) Police pursuits in
that the officer was dealing with the Mexican organized California have injured more than 10,000. ABC News.
crime gangs. website http://abcnews.go.com/US/police-chases-cal-
What can a supervisor do to ensure that none of his or her ifornia-injured-10000/story?id=16605443. Accessed on
officers are involved with organized crime units? November 3, 2015.
10. David Schultz, Ed Hudak, and Geoffery Alpert (March,
2010) Evidence-based decisions on police pursuit: The
Practicum two officer’s perspective. FBI Law Enforcement Bulletin, 79(3),
12–18.
Consider that you are serving as the police commis- 11. International Association of Chiefs of Police’s
sioner of a major U.S. city. An officer is charged with Executive Guide on Addressing Sexual Offenses and
giving false testimony in several cases. She is acquitted. Misconduct by Law Enforcement (2011) Washington,
The officer now demands to be reinstated as a police DC, IACP, p. 3.
officer. 12. As reported in the Orlando Sentinel article by Jonathan
What action would you take? Banks (November 2, 2015) Hundreds of officers lose
licenses over sex misconduct: AP investigation. p. A-1.
13. David Packman (November 5, 2009) The police brutal-
Discussion questions ity nobody talks about—Officer-involved sexual mis-
conduct, Cato website at http://www.policemisconduct.
1. What is the best way to identify officers who are net/the-police-brutality-nobody-talks-about-officer-
corrupt? involved-sexual-misconduct/. Accessed on November 2,
2. Why do officers give false testimony? 2015.
3. What steps can be taken to eliminate racial profil- 14. Candice Bernd (July 2, 2014) Police departments
ing by police? ignore Rampart sexual assault by officers. Truth-Out
Organization website at http://www.truth-out.org/
4. Explain why officers use abusive interrogation.
news/item/24677-police-departments-ignore-rampant-
5. Should there be a national register of police offi- sexual-assault-by-officers. Accessed on November 2,
cers who have been fired for cause? 2015.
15. Rape, Abuse, and Incest National Network website
References at https://www.rainn.org/get-information/statistics/
reporting-rates. Accessed on November 2, 2015.
1. Ronald Weitzer (December, 1999) Citizen’s perceptions 16. Jason Meisner (May 25, 2011) Lawsuit: Sex misconduct
of police misconduct: Race and neighborhood context. by Chicago cops not instigated by city. Chicago Tribune,
Justice Quarterly, 16(4), 819–846. p. A-1.
2. Centre for Crime and Justice Studies (September, 2015) 17. Reuvion Fenton (November 15, 2015) Top reasons people
Black lives matter. CJM (Criminal Justice Matters), 101, are falsely imprisoned. New York Post, p. A-1.
1–12. 18. Eterno, J. A., Verma, A., and Silverman, E. B. (2014). Police
3. Rebekah Delsol (September, 2015) Racial profiling. CJM, manipulations of crime reporting: Insiders’ revelations.
101, 34–35. Justice Quarterly, doi:10.1080/07418825.2014.980838 31(3),
4. Jules Holroyd (September, 2015) Implicit racial bias and 1–27.
the anatomy of institutional racism. CJM, 101, 30–31. 19. Eterno, J., and Silverman, E. B. (2012). The Crime Numbers
5. Lynn Langton and Matthew Durose (September, 2013) Game: Management by Manipulation. Boca Raton, FL: CRC
BJS Special Report, NCJ 242937 Police behavior dur- Press.
ing traffic and street stops, 2011. Washington, DC: U.S. 20. Campbell, D. T. (1976). Assessing the impact of
Department of Justice. planned social change. Evaluation and Program
6. Samuel Walker and Dawn Irlbeck (March, 2002) Planning, 2, 67–90. https://www.globalhivmeinfo.
Driving while female, a Special Report by the Police org/CapacityBuilding/Occasional%20Papers/08%20
Professionalism Institute available on line at http://sam- Assessing%20the%20Impact%20of%20Planned%20
uelwalker.net/wp-content/uploads/2010/06/dwf2002. Social%20Change.pdf
pdf. Accessed on November 2, 2015.
chapter six

Police corruption in international

and transnational situations
Learning objectives power to protect themselves against crime or corrupt
police officers who extort money from them through all
After studying this chapter, the reader should under- manner of threats.
stand the following concepts and issues: Kumssa concludes that police corruption is a vice
that must be addressed for peace and tranquility to pre-
• Police corruption is both an international and a vail in a society, and to maintain public order and the
transnational problem rule of law. This will restore public trust in the demo-
• There are forms of police corruption in all nations cratic processes and public institutions. Although police
• The issues involved in organizing an international corruption is a universal problem, it is chronic and ram-
police force pant in developing countries due to weak institutions,
• The problems with police corruption in Liberia poverty, and poor enforcement of laws. A prime exam-
• Police corruption in nation building ple of police corruption is set forth in Box 6.1.
• Police misconduct in Canada

Introduction Police corruption involving

Police corruption is both an international and a trans- international and
national problem, as noted by Asfaw Kumssa in his transnational commerce
article on police corruption.1 Kumssa notes that police
Bribery on the international level
corruption is a global phenomenon that is widespread
in both developed and developing nations. He argues According to Transparency International’s “Global
that police officers in New York City were involved not Corruption Barometer 2013 Report,” bribery is one of
only in the usual shakedown and protection activities, the most frequent forms of police corruption in interna-
but also in trafficking cocaine and other illicit drugs. tional and transnational commerce.3 Citizens in 36 of the
Similarly, police officers in the United Kingdom were 107 countries surveyed perceived that the police were
involved in corrupt activities, including concealment of among the most corrupt organizations. Worldwide, 31%
serious crimes, bribery, and the fabrication and plant- of citizens concluded that police were one of the most
ing of evidence. Kumssa comments on a study on cor- corrupt organizations in their county. Only political
ruption within a South African police force that noted parties were considered more corrupt. The judiciary
that police corruption is one of the biggest challenges took third place, with 24% of the citizens concluding
the government is faced with, hitting rock bottom when that the judiciary was among the most corrupt.
South Africa’s former National Commissioner of police The low opinion of police organizations was com-
was relieved of his duties in 2010 because of corruption parable with reports from the years 2010–2012. Most citi-
charges. zens opined that police corruption had increased rather
According to Kumssa, police corruption is a reflec- than declined in the previous 10 years. While only 5%
tion of the weakness in a country’s legal and political of citizens in Australia, Belgium, Canada, and Denmark
institutions. Kumssa states that police corruption will reported having paid a bribe to the police, 75% of citi-
undermine good governance and adversely affect the zens in Liberia and Sierra Leone claimed to have paid at
fight against crime, violence, and effective protection of least one bribe to the police. About 10% of U.S. citizens
property. In this kind of environment, citizens live in reported having paid a bribe to the police.
fear, and are compelled to hire private security guards,
install alarms, grills, and so on, thus increasing their
Arbitrary arrests in Argentina
personal costs and reducing their disposable incomes.
The people who suffer most from these types of corrupt A 2005 report on Argentina by the U.S. Department of
practices are the poor, refugees, and those who live in State stated that arbitrary arrests or detentions were
slum areas as they do not have the economic or political frequent in Argentina.4 The Argentina Federal Code

103
104 Police Misconduct: A Global Perspective

BOX 6.1 MEXICO FEDERAL POLICE AND THE DISAPPEARANCE OF 43 STUDENTS

Many researchers in Mexico believe that Mexico’s federal police collaborated with local criminals in the
September 26, 2014, attack on 43 students. The disappearance and presumed murder of the 43 students has
led to mass protests in the country. One reporter stated that “We have information that proves the federal
government knew what was happening in the moment it was happening, and participated in it.” The reporter
also stated that the government has tried to hide this information.
In 2015, it was announced that investigators are now certain that the 43 college students missing since
September 2014 are dead. According to one report by the Mexican attorney general, the students were killed
and incinerated after they were seized by police in the southern Guerrero state.2 According to the news article,
the attorney general cited confessions and forensic evidence from an area near a garbage dump where the
crime occurred, showing that the fuel and temperature of the fire were sufficient to turn 43 bodies into ashes.
Note that an independent group of investigators has disputed the fact that the method used to burn the bod-
ies was sufficient to create the necessary heat to completely destroy all traces of DNA.
Mexican authorities announced that the students’ incinerated remains were found in garbage bags
dumped in a nearby river. An independent commission studying the crime concluded that the government’s
account of the incident was not correct. By 2015, 99 individuals had been detained in connection with the
crime, including a former mayor.
The case has sparked protests both inside and outside Mexico and has forced the Mexican government to
refocus its attention from touting economic and education reforms to dealing with the country’s crime and
insecurity issues. A movie, The Documentary 43, has been developed based on the crime.

of Criminal Procedure limits arrests and detention occurred in connection with killings believed to be
without warrants to certain restricted situations, for committed by members of the security forces or their
example, criminals caught in the act, fleeing suspects, criminal allies.
or overwhelming evidence of a crime being committed Police may detain suspects for up to 10 hours without
and, while the government generally observed these an arrest warrant if the authorities have a well-founded
prohibitions, provincial police sometimes ignored these belief that the suspects have committed, or are about to
restrictions and arbitrarily arrested and detained citi- commit, a crime, or if they are unable to determine the
zens. In the past, human rights groups reported diffi- identity of a suspect. Human rights groups have argued
culties in documenting such incidents because victims that this provision of law has been disregarded to extort
were reluctant to file complaints for fear of police retali- money from persons by threatening to charge them
ation or inaction. with illegal weapon or drug possession.
In addition to the Argentine Federal Police (PFA) The law provides for the right of prompt deter-
and border police, each province has its own police mination of legality, but this right has often not been
force. These generally come under a provincial police respected in practice. The law provides for investigative
hierarchy, which in turn responds to a provincial secu- detention of persons charged with a crime but await-
rity ministry or secretariat. The effectiveness of and ing or undergoing trial for up to 2 years. This term can
respect for human rights among different forces varies be extended to 3 years under certain situations: A par-
considerably. Corruption is systemic in some forces, and ticularly complex or serious crime; intentional delays by
impunity for police abuse is common. the defense, or where investigations could be hampered
Some of the most common abuses included contract by release of the detainee; or if there is a serious risk
abuses, extortion of and protection for those involved of flight. The slow pace of the justice system has often
in illegal gambling, prostitution, and auto-theft rings, resulted in lengthy detentions beyond the period stip-
as well as detention and extortion of citizens under ulated by law. If convicted, a prisoner usually receives
the threat of planting evidence to charge them with credit for time already served. According to the Federal
crimes. Some police were also involved in drug traf- Bureau for Criminal Policies, approximately 62% of
ficking and kidnapping. Addressing police corruption inmates in federal prisons have been charged but are
was difficult, in part because the suspects intimidated awaiting trial or completion of their trials. The effective-
whistleblowing colleagues, judicial officials, and civil- ness of and respect for human rights by different forces
ian witnesses. Threats and beatings allegedly aimed to varies considerably. Corruption is systemic in some
intimidate witnesses were common and, in some cases, forces, and impunity for police abuses are common.
Chapter six: International and transnational corruption 105

Arbitrary police actions in Brazil same period in 2012. In April 2014, a court sentenced
police officer Carlos Adilio Maciel Santos from the
According to a 2013 report by the U.S. Department of Seventh Military Police Battalion in Rio de Janeiro to
State, human rights problems in Brazil include exces- 19 years and 6 months in prison for the 2011 killing
sive force and unlawful killings by state police; exces- of Judge Patricia Lourival Acioli. Four other military
sive force, beatings, abuse, and torture of detainees and police officers had already been tried, convicted, and
inmates by police and prison security forces; prolonged sentenced, while the six remaining defendants contin-
pretrial detention and inordinate delays of trials; judi- ued to await trial dates.
cial censorship of media; government corruption; vio- The federal police, operating under the Ministry
lence and discrimination against women; violence of Justice, is a small, primarily investigative entity that
against children, including sexual abuse; social conflict plays a minor role in routine law enforcement. Most
between indigenous communities and private land- police forces fall under the control of the states, where
owners that occasionally led to violence; discrimination they are divided into two distinct units: the civil police,
against indigenous persons and minorities; violence and performing an investigative role, and the military police,
social discrimination against lesbian, gay, bisexual, and charged with maintaining law and order.
transgender (LGBT) persons; insufficient enforcement Despite its name, the military police does not report
of labor laws; and child labor in the informal sector.5 to the Ministry of Defense. The law mandates that spe-
In Rio de Janeiro, there were reports that both on- cial police courts exercise jurisdiction over state military
and off-duty police employed indiscriminate use of police except those charged with “willful crimes against
force. These acts often occurred in the city’s approxi- life,” primarily homicide. The police are often respon-
mately 763 favelas, where an estimated 1.4 million sible for investigating charges of torture and excessive
persons lived, according to the 2010 census by the force carried out by fellow officers, although indepen-
Brazilian Institute of Geography and Statistics (IBGE). dent investigations have increased. Delays in the spe-
The Rio de Janeiro Public Security Institute, a state gov- cial military police courts have allowed many cases to
ernment entity, reported in 2013 that from January to expire due to statutes of limitations.
July, police killed 197 civilians in “acts of resistance” The Brazilian Association of Investigative
(similar to resisting arrest) in Rio de Janeiro state, com- Journalism has reported that police tactics, includ-
pared with 263 during the same period in 2012. Most ing excessive force, rubber bullets, and tear gas, have
of these deaths occurred while police were conducting resulted in injuries to hundreds of individuals, includ-
operations against drug-trafficking gangs operating in ing at least 15 journalists, during the 2014 June 13 pro-
Rio’s poor communities. A disproportionate number of tests in Sao Paulo.
the victims were Afro-Brazilian and under 25 years of According to the Rio de Janeiro State Secretariat
age. Nongovernmental organizations (NGOs) in Rio de for Public Security, human rights courses are a man-
Janeiro questioned whether all of the 197 victims had datory component of training for entry-level military
truly resisted arrest, contending that police continued police officers. UPP officers for the favela pacification
to depend on repressive methods. program have received additional human rights train-
On June 24, 2014, the Special Police Operations ing. Under the pacification program, the Rio de Janeiro
Battalion entered the New Holland favela in Rio de State Secretariat for Public Security inaugurated six new
Janeiro in pursuit of criminals. The operation resulted UPPs during the year, for a total of 34. As of September
in a gunfight that left 10 dead, including at least two res- 2014, 8592 UPP officers are responsible for patrolling
idents who were not implicated in criminal activity. In approximately 226 favela areas in Rio de Janeiro state.
another case, Rio de Janeiro resident Amarildo de Souza In Rio de Janeiro’s favelas, so-called militia groups,
went missing after officers from the Police Pacification composed of off-duty and former law enforcement offi-
Unit (UPP) operating in the Rocinha favela brought him cers, often took policing into their own hands. Many
in for questioning on July 14, 2014. Family members militia groups intimidated residents and conducted
claimed that the police were responsible for his disap- illegal activities such as extorting protection money
pearance; other Rocinha residents alleged that the police and providing pirated utility services. Human rights
offered them money in exchange for false testimony observers believed that militia groups controlled up to
casting suspicion on drug traffickers. In September, the half of Rio’s favelas.
Public Ministry charged 10 UPP police officers, includ- Former Alagoas police officer Edgelson Ribeiro
ing commanding officer Major Edson Santos, with tor- Guimaraes and 10 other members of an illegal militia
ture, murder, and hiding the body of de Souza. group, arrested in mid-2011 for committing murders
The Sao Paulo State Secretariat for Public Security in the states of Pernambuco and Alagoas, were freed
reported that state military police killed 239 civilians on bail awaiting trial, but Ribeiro Guimaraes was
from January to June 2014, compared with 251 in the arrested again on August 22 for alleged involvement in
106 Police Misconduct: A Global Perspective

a robbery in Pernambuco. He was later cleared of the posed by corruption to the stability and security of
robbery charges but remains in prison awaiting trial for societies, undermining the institutions and values of
homicide. democracy, ethical values, and justice, and jeopardizing
With the exception of arrests of suspects caught in sustainable development and the rule of law.7
the act of committing a crime, arrests must be made with While the UNCAC was directed at corruption in
a warrant issued by a judicial official. Officials must general, several portions of the resolution concerned
advise suspects of their rights at the time of arrest or police misconduct. For example, Article 25 Obstruction
before taking them into custody for interrogation. The of Justice provides:
law prohibits use of force during an arrest unless the
suspect attempts to escape or resists arrest. According Each State Party shall adopt such legislative
to human rights observers, some detainees have com- and other measures as may be necessary to
plained of physical abuse by police officers while being establish as criminal offences, when commit-
taken into custody. ted intentionally:
Authorities generally respect the constitutional
right to a prompt judicial determination of the legal- (a) The use of physical force, threats or
ity of detention. Detainees are informed promptly of intimidation or the promise, offering or
the charges against them. The law permits provisional giving of an undue advantage to induce
detention for up to 5 days under specified conditions false testimony or to interfere in the giv-
during an investigation, but a judge may extend this ing of testimony or the production of
period. A judge may also order temporary detention for evidence in a proceeding in relation to
an additional 5 days for processing. Preventive deten- the commission of offences established
tion for an initial period of 15 days is permitted if police in accordance with this Convention;
suspect that a detainee may leave the area. (b) The use of physical force, threats or
The law does not specify a maximum period for intimidation to interfere with the exer-
pretrial detention, which is decided on a case-by-case cise of official duties by a justice or law
basis. Time in detention before trial is subtracted from enforcement official in relation to the
the sentence. commission of offences established
Defendants arrested in the act of committing a in accordance with this Convention.
crime must be charged within 30 days of arrest. Other Nothing in this subparagraph shall
defendants must be charged within 45 days, although prejudice the right of States Parties to
this period may be extended. The backlog in the courts have legislation that protects other cat-
has often resulted in an extension of the period for egories of public official.
charging defendants.
The resolution (convention) requires countries to
establish criminal and other offenses to cover a wide
International obligations range of acts of corruption, if these are not already
Human Rights Watch (HRW) has noted that police bru- crimes under domestic law. In some cases, states are
tality is one of the most serious, enduring, and divisive legally obliged to establish offenses; in other cases, in
human rights violations in the United States. The prob- order to take into account differences in domestic law,
lem is nationwide, and its nature is institutionalized. For they are required to consider doing so. The convention
these reasons, the U.S. government—as well as state and goes beyond previous instruments of this kind, crimi-
city governments, which have an obligation to respect nalizing not only basic forms of corruption such as
the international human rights standards by which the bribery and the embezzlement of public funds, but also
United States is bound—deserve to be held accountable trading in influence and the concealment and launder-
by international human rights bodies and international ing of the proceeds of corruption. Offenses committed
public opinion.6 in support of corruption, including money-laundering
and obstructing justice, are also dealt with. Convention
United Nations Convention against offenses also deal with the problematic areas of private-
sector corruption.
Corruption (UNCAC) Since the passage of the resolution, nations world-
The United Nations Convention against Corruption wide have been observing the International Anti-
(UNCAC) was adopted by the UN General Assembly Corruption Day (IAC) of December 9 each year. UNCAC
Resolution 58/4 of October 31, 2003. The concern of the was the first multilateral convention negotiated by the
UN General Assembly when the resolution was passed member countries of the UN aimed at preventing cor-
was about the seriousness of the problems and threats ruption worldwide.
Chapter six: International and transnational corruption 107

World corruption police The authors noted that, when police sell their
services for private profit, the rule of law ceases to exist.
In a column in the New York Times, Alexander Lebedev Eliminating police corruption is required for any coun-
proposed the creation of a “world corruption police.”8 try that has establishing the rule of law as a national
Lebedev, a businessman and former senior officer in objective. They see that ignoring this imperative means
the KGB, is an owner of the Moscow newspaper Novaya that international efforts at nation building proceed at
Gazeta and publisher of the London Evening Standard their own peril. The lesson has been powerfully dem-
and the Independent. Lebedev notes that, whenever gov- onstrated in Afghanistan, where one of the funda-
ernment representatives from around the world meet, mental objectives of the U.S. assistance effort has been
they’re often able to make progress in many areas of to establish the rule of law. Illicit revenue from opium
common interest: combating climate change, poverty, production has fueled widespread corruption, affecting
the drug trade, Islamic extremism, human trafficking all levels of the Afghan government from ministers and
and modern-day slavery, and even cybercrime—the list members of parliament to local officials and the Afghan
is long. What these officials often fail to dwell on is cor- national police (ANP).
ruption. All of their nations suffer from it; they agree it’s Afghans believe that officials of the Ministry of
a cancer of our age and should be stamped out. Interior (MOI), provincial police chiefs, and members of
Lebedev notes that in China, nearly $4 trillion is the ANP are involved in the drug trade, based on reports
thought to have disappeared between 2000 and 2011, of senior MOI officials accepting large bribes for pro-
much of it the profits of corruption, channeled into secret tecting drug traffickers and for selling senior provincial
offshore financial havens. In Russia, the figure is close to and district police positions to people engaged in drug
$1 trillion. In the European Union, the total is estimated trafficking. The authors see how drug money combined
at $1.2 trillion. Various nations have launched initiatives with local loyalties, links to criminal networks, low or
to tackle corruption, but these moves ignore the interna- often no pay, and a residual culture of impunity have
tional, cross-border nature of the problem: Recovering contributed to endemic corruption in the ANP.
stolen assets inevitably involves some degree of coop- In most of the communities, the ANP is considered
eration with another jurisdiction. Countering this, how- as predatory and a greater threat to the citizens than
ever, is an entire industry devoted to helping people the Taliban. To many Afghans, the police are identified
hide their wealth overseas, far from the prying eyes with corruption that includes bribery, illegal taxes, and
of the authorities. Lebedev opines that if governments various types of human rights violations. Apparently,
want to have any chance of recovering what has been the corrupt police activities are felt most directly by the
lost, they must join together to create an international poorest Afghan citizens.
anticorruption force, along the lines of Interpol, to defeat The authors noted that the reports of the 32 police
these financial oligarchs. commissions on the police identified 35 forms of cor-
ruption, which can be grouped into four categories:
scale and organization, predatory forms, subversion of
Police corruption in nation building justice, and gifts and discounts. They saw the most com-
According to a special report of the U.S. Institute of mon forms of corruption as making false reports and
Peace, police corruption is a universal challenge to committing perjury, protecting illegal gambling, theft
nation building. In emerging nations, it appears that of drugs on the street, theft of seized property, receiv-
police corruption wastes resources, undermines secu- ing discounts on purchases, and selling information
rity, makes a mockery of justice, slows economic devel- about police operations. According to the authors, these
opment, and alienates citizens from their governments.9 forms accounted for slightly less than 40% of the 117
According to Bayley and Perito, general surveys reveal times that the reports noted specific incidents of corrup-
that police corruption is a fundamental obstacle to ful- tion. The nature of the corruption varied considerably
filling the basic objectives of most interventions, namely from report to report; only a third of the commissions
establishing the rule of law. reported the most common form (false reports and per-
Bayley and Perito consider that corruption in jury). According to Bayley and Perito, this implies that
the administration of law means that equal access is even blue-ribbon panels have not found a strong stan-
denied, and it undermines fair trials, fair elections, eco- dard model of police corruption.
nomic and social opportunities, cultural expression, In addition, the reports noted another category
and access to the necessities of food, housing, health, of corruption that was not a focus of investigation,
education, and water. Because the police are the pri- namely, corrupt manipulation of internal administra-
mary institution for implementing law in any society, tive processes such as corruption of promotions and
police corruption stops the implementation of the rule assignments and the diversion of police property to
of law. personal use. Police frequently reported this type of
108 Police Misconduct: A Global Perspective

internal corruption as a major irritant, and were much cross-country corruption available, where each single
less forgiving of it compared with the public forms. country is recognizable. It is compiled by a team of
The authors noted that there were two trends in the researchers at Göttingen University, headed by Johann
reporting about the forms of police corruption. First, Lambsdorff. The CPI assesses the degree to which pub-
drug involvement is not mentioned at all before 1970. lic officials and politicians are believed to accept bribes,
In the category of vice, drugs became the major driver take illicit payment in public procurement, embezzle
of corruption after 1970, replacing gambling, prosti- public funds, or commit similar offenses. The index
tution, and alcohol. An interesting exception is the ranks countries on a scale from zero to 100, according
2000 Uganda report, which reported corruption to be to the perceived level of corruption. A score of 100 rep-
endemic but did not mention drugs as a corruptor at all. resents a reputedly totally honest country, while zero
The authors wondered if this meant that drug-related indicates that the country is perceived as completely
police corruption was a problem only in the developed corrupt.11
West. Given what is known from other sources about The CPI has ranked 175 countries. The 2014 rank of
police corruption in supplier and transshipping coun- countries includes the following:
tries, they opined that this was unlikely.
The second trend was described by the authors as 1. Denmark (92)
being systemic in police departments only since 1970, 2. New Zealand (92)
and rarely before then. This is curious, since the impres- 3. Finland (89)
sion from general histories of the police in Western coun- 10. Canada (81)
tries is that internal discipline was characteristically lax 14. United Kingdom (78)
in earlier periods and that newly recruited officers had 17. United States (74)
to “go along” in order to be accepted. Corruption before 136. Russia (27)
1970 seems to have been part of a general lack of disci-
pline, meaning the failure of police officers to do what
they were assigned to do. In effect, the systemic charac-
Organizing an international
ter of corruption seems to have been so pervasive earlier police force
that it was not considered remarkable. The information in this section was taken from the U.S.
Marine Corps Warfighting Publication, No. 3.33.5 and
the U.S. Army Field Manual No. 3-24.12 This section
Research on foreign aid policies addresses aspects of developing host nation (HN) secu-
According to a Sweden research report, corruption has rity forces. It begins with a discussion of the challenges
become a major issue in foreign aid policies. However, it involved and the resources required, and provides a
has always been there behind the scene, referred to as the framework for organizing the development effort. It
“c word.” The major concern for international aid policy concludes with a discussion of the role of police in coun-
over the last five decades was to improve the living condi- terinsurgency operations.
tions for the poor in the poorest countries of the world.10 6-49. Effective security forces can help improve HN
According to the report, the phenomenon of corruption social and economic development through the benefits
ranges from the single act of a payment contradicted by each member receives. Every recruit should receive a
law to an endemic malfunction of a political and eco- basic education, job training, and morals and values
nomic system. The problem of corruption has been seen inculcation.
either as a structural problem of politics or economics, or
as a cultural and individual moral problem. The defini-
Leader recruiting and selection
tion of corruption consequently ranges from the broad
terms of misuse of public power and moral decay to strict 6-50. Officer candidate standards should be high.
legal definitions of corruption as an act of bribery involv- Candidates should be in good health and pass an aca-
ing a public servant and a transfer of tangible resources. demic test with a higher standard than the test for
enlisted recruits. Officer candidates should be carefully
vetted to ensure that they do not have close ties to any
Corruption Perception Index radical or insurgent organization.
Police corruption is a dangerous phenomenon in any soci- 6-51. Non-commission officers (NCOs) should be
ety. Approximately one-third of the countries surveyed selected from the best enlisted security force members.
in the Corruption Perception Index (CPI) perceived the Objective standards, including proficiency tests, should
police as the institution most affected by corruption. The be established and enforced to ensure that promo-
CPI is the most comprehensive quantitative indicator of tion to the NCO ranks comes from merit, not through
Chapter six: International and transnational corruption 109

influence or family ties. Many armies lack a profes- 6-96. Countering an insurgency requires a police
sional NCO corps; establishing one for a host nation force that is visible day and night. The host nation will
may be difficult. In the meantime, adjustments will not gain legitimacy if the populace believes that insur-
have to be made, placing more responsibility on com- gents and criminals control the streets. Well-sited and
missioned officers. protected police stations can establish a presence in
communities as long as the police do not hide in those
stations. Police presence provides security to communi-
Personnel accountability
ties and builds support for the HN government. When
6-52. HN leaders must carefully track and account for police have daily contact with the local populace, they
security force personnel. Proper personnel accountabil- can collect information for counterinsurgents.
ity reduces corruption, particularly in countries with 6-97. Good pay and attractive benefits must be com-
manual banking systems where security force person- bined with a strict code of conduct that follows the rule
nel are paid in cash. In addition, large numbers of per- of law and allows for the immediate dismissal of police
sonnel failing to report for duty can indicate possible officers for gross corruption. Good planning ensures
attacks, low unit morale, or insurgent and militia influ- that police pay, housing, benefits, and work conditions
ences on the security forces. attract a high quality of police recruit as well as discour-
6-92. Police often consist of several independent but age petty corruption. Such corruption undermines the
mutually supporting forces. These may include populace’s confidence in the police and government.
An important step in organizing a police force involves
• Criminal and traffic police setting up an independent review board composed
• Border police of experts, government officials, or nongovernmental
• Transport police for security of rail lines and pub- organization members. It should not be under the direct
lic transport command of the police force. This board should have
• Specialized paramilitary strike forces the authority to investigate charges of police abuse and
• In addition, a host nation may establish various corruption, oversee the complaints process, and dismiss
reserve police units or home guards to provide and fine police found guilty of misconduct (Box 6.2).
local security

The force may include paramilitary units. Police Police corruption in Liberia
might be organized on a national or local basis. Whatever It would be easy to write a chapter on police corruption
police organization is established, soldiers and marines in every country. There is not a single country in the
must understand it and help the host nation effectively world that does not have some form of police corrup-
organize and use it. This often means dealing with tion. But, for this section, I will focus on Liberia primar-
several police organizations and developing plans for ily because its level of corruption is documented. It is
training and advising each one. not necessarily the most corrupt police force.
6-93. A formal link or liaison channel must exist A common description used when referring to
between the HN police and military forces. This chan- police corruption in Liberia is “no money, no justice.”13
nel for coordination, deconfliction, and information For example one individual complained about his arrest
sharing enables successful Counterinsurgency (COIN) in 2012. Apparently, he was arrested and jailed for
operations. 5 days. He was told that he would be released when he
6-94. Military forces might have to perform police paid some money.
duties at the start of an insurgency; however, it is best to During the period 1989–2003, Liberia was involved in
establish police forces to assume these duties as soon as two deadly civil wars that resulted in over 200,000 deaths.
possible. U.S., multinational, and HN partners should Since 2013, with the removal of peacekeeping forces, the
institute a comprehensive program of police training. Liberian police has been solely under the stewardship of
Moreover, plans for police training need to envision a the Liberian government. But the HRW noted that the
several-year program to systematically build institu- country’s ability to enforce the law and investigate crimes
tions and leadership. was severely compromised by the lawlessness and abuse
6-95. Although roles of the police and military that was being inflicted by the Liberian police.
forces in COIN operations may blur, important distinc- During this period, the HRW concluded that the
tions between the two forces exist. If security forces Liberian police acted like predators, violating the law
treat insurgents as criminals, the police may retain the rather than protecting the citizens of Liberia, and that
primary responsibility for their arrest, detention, and the police often hustled on the street for money, compel-
prosecution. ling citizens to pay bribes.
110 Police Misconduct: A Global Perspective

BOX 6.2 DEVELOPING A POLICE FORCE IN MALAYA

In 1948, the Malayan Communist Party, whose members were primarily ethnic Chinese, began an insurgency
against the British colonial government. The British first responded by dramatically expanding the Malayan
security forces. The police, not the army, served as the lead counterinsurgency force. Between 1948 and 1950,
the number of Malayan police expanded fivefold to 50,000, while the British army garrison expanded to 40,000.
However, there was only time to provide a few weeks of rudimentary training to the new police officers before
throwing them into operation. Police with little training and little competent leadership were ineffective in
conducting operations. They also abused the civilian population and fell into corrupt practices. The population
largely regarded the police as hostile; they were reluctant to give them information on the insurgents.
By 1952, the insurgency had reached a stalemate. The British then established a new strategy. The strategy
included reforming and retraining the entire Malaya police force. First, 10,000 corrupt or incompetent police
officers were removed from the force. Then, police officers who had proved the most competent in operations
were made instructors in new police schools. During 1952 and 1953, every police officer attended a 4-month
basic training course. Commissioned and noncommissioned police officers were sent on 3–4 month advanced
courses. All senior Malayan police officers were required to attend the police intelligence school, where they
learned the latest criminal investigation techniques. Teams of Britain’s top police officers also taught them
intelligence collection and analysis methods. Dozens of the most promising Malayan officers attended the full
year-long course in advanced police operations in Britain.
To win the ethnic Chinese away from the insurgents, the British worked closely with ethnic Chinese
organizations to recruit Chinese for the Malaya police force. In 1952, the number of ethnic Chinese in the
force more than doubled. Although the percentage of ethnic Chinese in the police force did not equal their
percentage in the population, the ethnic Chinese saw this reaching out as a sign that the government was
addressing their interests. At the same time, some Chinese and Malay political groups were building a coali-
tion to establish an independent Malaya in which all the major ethnic groups would participate. The two
efforts complemented each other.
Better trained police officers and soldiers led by fully trained commissioned and noncommissioned offi-
cers dramatically improved discipline in the Malayan security forces. Better relations between the population
and security forces resulted, and the people began to provide information on the insurgents. Thanks to their
intelligence training, the security forces could develop intelligence from that information and act on it. They
began to break the insurgent organization. In 1953, the government gained the initiative. After that, the insur-
gent forces and support structure declined rapidly. In late 1953, the British began withdrawing forces. They
progressively turned the war over to the Malayans, who were fully prepared to conduct counterinsurgency
operations without a drop in efficiency.
The Malaya insurgency provides lessons applicable to combating any insurgency. Manpower is not
enough; well-trained and well-disciplined forces are required. The Malayan example also illustrates the
central role that police play in counterinsurgency operations. British leaders concentrated on training the
Malayan leadership. The British insisted that chosen personnel receive the full British Army and police officer
courses. These actions built the Malayan security forces on a sound foundation. By taking a comprehensive
approach to security force training and reform, the British commanders transformed a demoralized organiza-
tion into a winning force. This transformation required only 15 months.

People smuggling many cases, people-smuggling organizations are oper-

ating under the protection of local police agencies.
People smuggling is an international problem. It is also
a complex issue. While many of the criminals involved
in people smuggling are not police officers, unfortu-
nately many of the criminals are also police officers. Summary
The modus operandi of criminal organizations involved • Police corruption is both an international and a
in people smuggling is becoming increasing sophisti- transnational problem.
cated. Crimes that are necessarily included in people • According to Kumssa, police corruption is a reflec-
smuggling include human trafficking, identity-related tion of the weaknesses in a country’s legal and
crimes, corruption, money laundering, and violence. In political institutions.
Chapter six: International and transnational corruption 111

POLICE MISCONDUCT IN CANADA: INTERNAL AND EXTERNAL OVERSIGHT

Figure 6.1 Professor Rick Parent.

[Dr. Rick Parent is Associate Professor and Associate Director, Police Studies Centre, School of Criminology,
Simon Fraser University, Vancouver, Canada (Figure 6.1). Dr. Parent completed 30 years of service as a police
officer with the Delta Police and is the coauthor of the book Community-based Strategic Policing in Canada. His
research interests include comparative policing, the police use of deadly force, and police ethics and account-
ability. Dr. Parent can be contacted at rparent@sfu.ca www.rickparent.ca]
Canada, with a population of roughly 36 million, employs just under 70,000 full-time police officers.
Within the 10 provinces and 3 territories that make up this northern nation, there are 238 police agencies, and
of those, 117 have fewer than 25 staff. Five Canadian police agencies—the Royal Canadian Mounted Police
(RCMP), the Toronto Police Service, the Ontario Provincial Police (OPP), the Sûreté du Québec (SQ), and the
City of Montreal Police Service (Service de police de la Ville de Montréal, or SPVM)—account for just over
60% of all full-time police officers in Canada. In most areas of this large nation (the second largest geographi-
cal area in the world), police officers work alone. With a police-to-population ratio of only 193 per 100,000
population (lower than the United States and England/Wales), back-up in rural areas may be more than an
hour away.14 In most jurisdictions across Canada, police activities are overseen both internally and externally.
Police commissions, boards, and bodies established under provisions of various legislated police acts exist as
a measure of external oversight of policing. Boards and commissions, typically governed by elected officials,
ensure accountability at both the municipal and provincial level. Within police agencies, there are sections
often titled “Professional Standards” or “Internal Affairs” that investigate allegations of professional mis-
conduct on the part of officers and, in rare instances, police corruption. Police officers may be held liable for
violating the policies and procedures of the police agency in which they work. They can also be held liable
administratively, civilly, and criminally for their conduct. Over the last 15 years, police officers and police
departments have been found civilly liable for negligently supervising employees, conducting deficient inves-
tigations, and failing to warn the community about dangerous persons.
Canadian police officers can be held accountable for conduct that occurs both on and off duty. Off-duty
conduct may include involvement in domestic violence, impaired driving, and assault. While these issues
impact all individuals, regardless of their occupation, police officers additionally face the real possibility of
being disciplined in the workplace for their off-duty behavior. Disciplinary measures may include manda-
tory counseling, suspension from work without pay, reduction in rank (pay), and termination of employment.

Transparent and accountable policing

The police are responsible for the services they provide to the community as well as for their conduct within
the community. There are both legislative and administrative frameworks for holding Canadian police offi-
cers accountable for their actions and for dealing with police misconduct. The Canadian Charter of Rights and
Freedoms has had a significant impact on police work; since its enactment, there have been a number of major
decisions by the Supreme Court of Canada that have defined the role and powers of the police. One of the
112 Police Misconduct: A Global Perspective

most significant developments is the Supreme Court of Canada’s decision in R. v. McNeil,* that requires police
agencies to release a police officer’s disciplinary records to defense counsel prior to criminal prosecutions.15
Police agencies and their employees are also held externally accountable by coroner’s inquests or fatality
inquiries and by human rights boards, commissions, and civil litigation. In addition, freedom of information
legislation has also established a heightened level of accountability in relation to police records and their
management. These legislative provisions, combined with public recording and posting of policing activities
on social media sources, have placed Canadian police personnel under increased scrutiny and often criticism.
While misconduct in policing has generally been considered an individual officer phenomenon, the
investigation of serious misconduct and criminal acts by police officers has required police departments to
reorganize their resources to better respond to these emerging challenges. The RCMP, for example, has estab-
lished internal anticorruption units in major urban centers. The Toronto Police Service has also enhanced
their internal investigative capacity following a serious investigation into the misappropriation of money and
property in their drug unit.
To maintain public confidence in policing, investigations must be transparent and open to the public.
Police officers who work in internal investigation units have a difficult and challenging mandate. They must
investigate fellow police officers as objectively and neutrally as possible. Critics of this system argue that it is
virtually impossible for the police to objectively investigate their own personnel, while those who favor this
approach argue that investigations are conducted thoroughly by insiders who know and understand policing.
In certain situations, police agencies will request that officers from another police agency conduct the internal
investigation. For example, in the eastern province of Quebec, it is common practice for the Montreal Police
Service to call on the Quebec provincial police (and vice versa) to conduct investigations into serious matters
such as police shootings and police conduct resulting in death. In recent years, there has also been a trend
toward external oversight in order to achieve transparent and accountable policing. All Canadian provinces
have external agencies that are mandated with receiving and reviewing complaints against police officers
(excluding RCMP officers policing under contract). These include the province of Alberta Law Enforcement
Review Board, the province of Manitoba’s Law Enforcement Review Agency, the province of Nova Scotia
Police Review Board, and the Office of the Police Complaint Commissioner in British Columbia. Oversight of
the federal RCMP occurs through the Commission for Public Complaints against the RCMP and the External
Review Committee (ERC).
In the province of Ontario, the Special Investigations Unit (SIU) and the Ontario Civilian Commission on
Police Services (OCCPS) perform these tasks. Of note, the role of each oversight body varies, ranging from
reviewing complaint investigations and making recommendations to conducting the investigation itself.
Models of police oversight that have the mandate to conduct actual independent investigations of police offi-
cers have been established in the western Canadian provinces of Alberta, through the creation of the Alberta
Serious Incident Response Team (ASIRT),16 and in British Columbia, through the creation of the Independent
Investigations Office (IIO).17

The province of Ontario and the Special Investigation Unit

Canada’s most populous province of Ontario employs roughly 26,148 police officers. These officers are respon-
sible for policing roughly 14 million individuals, representing nearly 40% of all Canadians in the second
largest province in total area.18 Ontario employs their own provincial police agency to enforce the majority
of laws, typically in rural and sparsely populated areas. Regional, municipal, or city police agencies such as
the Toronto Police Service provide the bulk of policing to large urban centers or townships. Notably, Canada’s
internationally famous federal police agency, the RCMP, plays a very minor role in Ontario, enforcing only a
few federal laws.
Within Ontario, the SIU is perhaps the best example of a Canadian civilian review of police activities.
Created in 1990, the SIU came about due to controversial police shootings and racially charged interactions
involving police officers and youth from visible minority groups. Established under provisions of the Police
Services Act, the SIU investigates cases involving serious injury, sexual assault, or death that may have been
the result of criminal offenses committed by police officers. A serious injury inflicted by a police officer is
initially presumed when the complainant:

* R. v. McNeil [2009] Supreme Court of Canada, 3.

Chapter six: International and transnational corruption 113

is admitted to the hospital; suffers a fracture to a limb, rib or vertebrae or to the skull; suffers burns
to a major portion of the body or loses any portion of the body; suffers loss of vision or hearing; or
alleges sexual assault.19

The SIU is independent of any police agency; operates directly under the provincial attorney general;
and has the authority to investigate municipal, regional, and provincial police officers. An attempt is made
to complete case investigations within 30 days, although in more complex cases this is typically not possible.
The SIU’s primary purpose is to enhance police accountability and maintain public confidence by assuring
the Ontario public that police actions resulting in serious injury, death, or allegations of sexual assault are
subjected to rigorous and independent investigations.
If a preliminary investigation determines that a police officer was involved in a serious injury or
death of a civilian, a full investigation is conducted. SIU investigators are required to go to the scene of the
incident, collect and secure evidence, interview police and civilian witnesses, and provide evidence to foren-
sic specialists for examination.
Following a comprehensive and independent (of police) investigation, a detailed report is referred to the
director of the SIU to review. The director’s job is to determine if, based on the investigation, there are reason-
able and probable grounds to believe that the suspected police officer(s) committed a criminal offense. If there
is evidence of a criminal wrongdoing on the part of the officer(s) involved, the director will make a decision on
whether or not there are reasonable grounds to lay a criminal charge. These charges can include manslaugh-
ter, criminal negligence causing death, assault causing bodily harm, and sexual assault.19 After a charge is
laid, the director then forwards his report to the Justice Prosecutions branch of the Crown Law Office, thus
ensuring that the process is carried out.19 See Table 6.1 regarding the yearly number of SIU occurrences and
investigations.

Police use of deadly force: Canada and the United States

In both Canada and the United States, police shootings and the use of deadly force tend to generate the most
media attention, public interest, and controversy in regard to police misconduct. However, the police use of
deadly force is far more of a concern in the United States than in Canada. In absolute numbers, as well as pro-
portionately, far more people die by legal intervention in the United States than in Canada. One explanation
for this difference is the availability of handguns in the United States and the U.S. constitutional provision to
bear arms. In contrast, the possession of a handgun is highly regulated and restricted in Canada and there is
no provision within the Canadian Charter of Rights enshrining the right to possess firearms.
It is within this setting that approximately 500 individuals are shot and killed by U.S. law enforcement
personnel each year.20 It has been speculated that this number is far higher due to a lack of accurate report-
ing in the United States. In contrast, there have been 139 fatal police shootings in Canada between January
1, 1999 and December 31, 2009, reflecting a rate of approximately 12 fatal police shootings per year.21 On
adjusting for population figures, the number of deaths by legal intervention within the United States is
almost three times greater than the corresponding number of legal intervention deaths within neighboring
Canada.22

Table 6.1 Ontario special investigations unit—Occurrences

Types of occurrences 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014
Firearm injuries 10 12 14 10 5 12 12 8 8 3
Firearm deaths 7 6 7 4 7 10 8 5 9 6
Custody injuries 98 128 124 182 172 165 172 214 200 154
Custody deaths 32 35 21 27 15 30 17 34 20 12
Vehicular injuries 25 28 29 33 51 26 33 48 33 38
Vehicular deaths 9 5 9 7 9 4 6 7 11 6
Sexual assault complaints 23 24 41 34 24 44 55 49 34 41
Other injuries/deaths 0 0 1 2 4 1 1 3 3 6
Totals 204 238 246 299 287 292 304 372 318 266
114 Police Misconduct: A Global Perspective

Interestingly, research has revealed that there are relatively few differences overall in relation to the
dynamics and circumstances of police use of deadly force in the United States and Canada. The issues per-
taining to police use of deadly force are, for the most part, very similar. The major difference that was noted
between these two nations was in relation to the frequencies of incidents and not the individual characteris-
tics of a police shooting.23

Discussion
The expectations placed on police officers have been shaped largely by Canadian society, ensuring that offi-
cers are held accountable for their actions. Police agencies have responded to this trend by developing organi-
zational policies and procedures that are reinforced by internal processes and mechanisms. Several external
factors, such as evolving case law and designated police oversight agencies, provide additional checks to
ensure police transparency and accountability. However, the Canadian public continues to have the greatest
impact on reducing police misconduct by demanding high standards and expectations of police agencies and
their personnel within a supportive and constructive framework.

• Kumssa states that police corruption will under- • The problem is nationwide, and its nature is
mine good governance and adversely affect the institutionalized. For these reasons, the U.S.
fight against crime, violence, and effective protec- government—as well as state and city govern-
tion of property. ments, which have an obligation to respect the
• According to Transparency International’s report international human rights standards by which
“Global Corruption Barometer 2013 Report,” bribery the United States is bound—deserve to be held
is one of the most frequent forms of police corrup- accountable by international human rights bodies
tion in international and transnational commerce. and international public opinion.
• Worldwide, 31% of citizens concluded that police • The UNCAC was adopted by the UN General
were one of the most corrupt organizations in Assembly Resolution 58/4 of October 31, 2003.
their county. • The concern of the General Assembly, when
• Only political parties were considered more cor- the resolution was passed, was about the seri-
rupt worldwide. ousness of the problems and threats posed by
• The judiciary took third place, with 24% of citizens corruption to the stability and security of soci-
concluding that the judiciary was among the most eties, undermining the institutions and values
corrupt. of democracy, ethical values and justice, jeopar-
• A 2005 report by the U.S. Department of State on dizing sustainable development, and the rule of
Argentina stated that arbitrary arrests or deten- law.
tions were frequent in Argentina. • According to a special report of the U.S. Institute
• According to a 2013 report by the U.S. Department of of Peace, police corruption is a universal challenge
State, human rights problems in Brazil include exces- to nation building.
sive force and unlawful killings by state police; exces- • In emerging nations, it appears that police cor-
sive force, beatings, abuse, and torture of detainees ruption wastes resources, undermines security,
and inmates by police and prison security forces; makes a mockery of justice, slows economic
prolonged pretrial detention and inordinate delays development, and alienates citizens from their
of trials; judicial censorship of media; government government.
corruption; violence and discrimination against • According to a Sweden research report, corruption
women; violence against children, including sexual has become a major issue in foreign aid policies.
abuse; social conflict between indigenous commu- However, behind the scenes it has always been
nities and private landowners that occasionally led there, referred to as the “c word.”
to violence; discrimination against indigenous per- • The major concern for international aid policy
sons and minorities; violence and social discrimina- through the last five decades is to improve the liv-
tion against lesbian, gay, bisexual, and transgender ing conditions for the poor in the poorest countries
(LGBT) persons; insufficient enforcement of labor of the world.
laws; and child labor in the informal sector. • Police corruption is a dangerous phenomenon in
• The HRW noted that police brutality is one of the any society. Approximately one-third of the coun-
most serious, enduring, and divisive human rights tries surveyed in the CPI perceived the police as
violations in the United States. the institution most affected by corruption.
Chapter six: International and transnational corruption 115

• The CPI is the most comprehensive quantitative 6. Allyson Collins (1998) Shielded from Justice: Police Brutality
indicator of cross-country corruption available, and Accountability in the United States. New York: Human
where each single country is recognizable. Rights Watch.
7. United Nations (October 31, 2013) United Nations
• It is compiled by a team of researchers at Göttingen
Convention against Corruption Resolution 58/4. Geneva: UN.
University, headed by Johann Lambsdorff. 8. Alexander Lebedev (February 26, 2014) A world corrup-
• The CPI assesses the degree to which public offi- tion police. New York Times, Opinion page.
cials and politicians are believed to accept bribes, 9. David Bayley and Robert Perito (November, 2011) “Police
take illicit payment in public procurement, embez- corruption: What past scandals teach about current
zle public funds, and commit similar offenses. challenges,” posted on the U.S. Institute of Peace website
at www.usip.com. Accessed on November 16, 2015.
10. Jens Chr. Andvig and Odd-Helge Fjeldstad (December,
Practicum 2000) “Research on corruption: A policy oriented sur-
vey,” posted on NORAD website at www.icgg.org
According to the Tax Justice Network, an independent accessed on November 16, 2015.
group promoting efforts to curb tax avoidance, crooked 11. Posted on Transparency International website at
business people, working with corrupt officials, have https://www.transparency.de/. Accessed on November
embezzled $30 trillion over the last 15 years—or half of 16, 2015.
the world’s annual gross domestic product. 12. Marine Corps Warfighting Publication, No. 3-33.5 (2006)
From China, nearly $4 trillion is thought to have dis- Headquarters, Marine Corps Combat Development
appeared between 2000 and 2011, much of it the profits Command, Department of the Navy, Headquarters, U.S.
Marine Corps, Washington, DC.
of corruption, channeled into secret offshore financial
13. An excellent description of Liberia’s police corruption is
havens. From Russia, the figure is close to $1 trillion. In contained in The Human Rights Watch (August, 2013)
the European Union, the total is put at $1.2 trillion.24 “No Money, No Justice” on the Human Rights Watch
What steps can nations take to reduce or stop illegal tax website at hrw.org. Accessed on November 17, 2015.
avoidance? 14. Statistics Canada (2015) Police officers, by province and
territory (Police Officers). Retrieved from http://www.
statcan.gc.ca/tables-tableaux/sum-som/l01/cst01/leg-
Discussion questions al05a-eng.htm. Accessed on December 22, 2015.
15. Brian Whitelaw and Richard Parent (2013) Community-Based
1. Why is transnational police corruption difficult to Strategic Policing in Canada. 4th edition. Nelson, Toronto.
control? 16. Alberta Serious Incident Response Team (2012) A year
2. Explain the rationale behind the UNCAC. in review. Retrieved from https://solgps.alberta.ca/
3. Explain the oversight control over Canadian police asirt/publications/Documents/ASIRT%202012%20
as described by Professor Parent. Annual%20Report.pdf. Accessed on December 22, 2015.
4. Do we need a world police force? 17. Brian Whitelaw and Richard Parent (2013) Community-
5. What are the issues in trying to prevent people Based Strategic Policing in Canada. 4th edition. Nelson,
Toronto. pp. 25–28.
smuggling?
18. Statistics Canada (2015) Police officers, by province and
territory (Police Officers). Retrieved from http://www.
statcan.gc.ca/tables-tableaux/sum-som/l01/cst01/leg-
References al05a-eng.htm. Accessed on December 22, 2015.
1. Asfaw Kumssa (March, 2015) Police corruption: A per- 19. Special Investigations Office (2015) Special investiga-
spective on its nature and control. Donnish Journal of tions unit stats report 2014–2015. Retrieved from http://
Political Science and International Relations, 1(1), 1–8. www.siu.on.ca/en/report.php?reportid=6. Accessed on
2. Alberto Arce and Maria Verza (January 27, 2015) Mexico: December 22, 2015.
All 43 missing students are dead. The World Post web site 20. Uniform Crime Reports (2013) Crime in the United States.
at http://www.huffingtonpost.com/2015/01/27/mexico- Washington, DC: Federal Bureau of Investigation. U. S.
missing-students-dead_n_6559812.html. Accessed on Department of Justice.
November 25, 2015. 21. Richard Parent (2011) The police use of deadly force in
3. Transparency International (2014) Global corruption British Columbia: Mental illness and crisis negotiation.
barometer 2013 report, available on line at http://www. Journal of Police Crisis Negotiations, 11(1), 57–71.
transparency.org/research/gcb/overview. Accessed on 22. Uniform Crime Reports. (2013) Crime in the United States.
November 25, 2015. Washington, DC: Federal Bureau of Investigation. U. S.
4. U.S. Department of State (2005) Report on Argentina, Department of Justice.
available online at http://www.state.gov/j/drl/rls/ 23. Richard Parent (2004) Aspects of Police Use of Deadly Force
hrrpt/2004/41746.htm. Accessed on November 25, 2015. in North America: The Phenomenon of Victim-Precipitated
5. U.S. Department of State (2014) 2013 Human Rights Homicide. Burnaby, BC: Simon Fraser University.
reports: Brazil, available online at http://www.state. (Doctoral Thesis).
gov/j/drl/rls/hrrpt/2004/41746.htm. Accessed on 24. Alexander Lebedev (February 26, 2014) A world corrup-
November 25, 2015. tion police New York Times, p. 1.
chapter seven

Preventing police misconduct

Learning objectives Criminal convictions
After studying this chapter, the reader should under- Law officers, like other citizens, are liable in criminal
stand the following concepts and issues: courts for violations of criminal law. For example, a fed-
eral jury in Huntsville, Alabama, convicted a Huntsville
• The mechanism in place to detect and prevent police officer in 2015 of deprivation of rights under
police misconduct the color of law (42 U.S. Code 1983) and obstruction of
• The role of the U.S. Department of Justice (DOJ)’s justice. The officer was found guilty after he injured a
Civil Rights Division detainee and filed a false police report on the incident.1
• The use of psychologists to control police A police car video showed police officer Brett
misconduct Russell pulling a domestic violence suspect out the back
• The profiles of violence-prone officers of a squad car in 2011, then hitting and kicking him as
• How to request an investigation he was held down by other officers. The suspect had
kicked out the squad car’s window and allegedly called
Russell a racial slur.
Introduction After his conviction, the officer faced a statu-
Remember that the police force is the most tory maximum sentence of 10 years in prison for the
visible arm of the government, and its mem- civil rights charge and a statutory maximum sentence
bers often are the recipients of the public’s of 20 years for the obstruction of justice charge. The
dissatisfaction with the government. There Deputy Assistant Attorney stated that the U.S. Justice
are plenty of people out there who will use Department was committed to holding officers who
police missteps to paint all police officers engage in such criminal acts accountable. She noted
as the enemy. When officers perform their that, “Today’s verdict reflects that abusing the authority
duties with professionalism and compas- of a police badge is a serious crime and it will be pun-
sion, not only do they show that they are ished accordingly …. Most police officers honor their
not the enemy, they also strengthen the con- oaths, day in and day out, to uphold the law and protect
fidence and trust that the citizens have in the public, but this defendant disgraced his badge.”1 On
their police. December 2, 2015, a federal judge sentenced the former
Captain Michael Doyle (Ret.) Huntsville police officer Brett Russell to 18 months in
prison for a violation of civil rights charge. Court records
Cleveland, Ohio, Police Department (2015)
indicated that prosecutors sought a 33 month sentence
for Russell followed by two years of supervised release.
As noted by Captain Doyle in this statement, the
police are the most visible arm of the government.
Accordingly, any misconduct by the police is immedi- Civil rights investigations by the
ately scrutinized by both the public and the media. The
misconduct makes first page news; whereas, when the
U.S. Department of Justice
officer does his or her job it does not make the news. One effective method of combating police misconduct
In this chapter, we will discuss the methods currently is the opening of an investigation by the U.S. DOJ. In
used to police the police. the following focus box, Attorney General Lynch speaks
The police are subject to the same criminal laws on the opening of an investigation of the Chicago Police
to which all other citizens are subject. In addition, Department in 2015. Her statement is informative, in
there are other statutes and regulations that are that it indicates what the DOJ considers in determining
designed to help police the police. Probably the most whether to open an investigation of a city police depart-
frequently used are the civil rights actions, whereby ment (Box 7.1).
an officer may be liable in a civil action for the viola- The Civil Rights Division is the primary institution
tion of a citizen’s rights. Civil actions are discussed within the U.S. DOJ responsible for enforcing federal
in Chapter 8. statutes prohibiting discrimination on the basis of race,

117
118 Police Misconduct: A Global Perspective

BOX 7.1 EXCERPTS OF ATTORNEY GENERAL LORETTA E. LYNCH DELIVERS

REMARKS AT PRESS CONFERENCE ANNOUNCING INVESTIGATION
INTO CHICAGO POLICE DEPARTMENT ON DECEMBER 7, 2015
Good morning and thank you all for being here. I am joined today by Vanita Gupta, head of the department’s
Civil Rights Division, and Zachary Fardon, U.S. Attorney for the Northern District of Illinois.
The Department of Justice is committed to upholding the highest standards of law enforcement through-
out the United States. Every American expects and deserves the protection of law enforcement that is effective,
responsive, respectful and most importantly, constitutional—and each day, thanks to the tireless dedication
of men and women who wear the badge, citizens from coast to coast receive just that. But when community
members feel they are not receiving that kind of policing—when they feel ignored, let down or mistreated by
public safety officials—there are profound consequences for the well-being of their communities, for the rule
of law and for the countless law enforcement officers who strive to fulfill their duties with professionalism
and integrity.
Today, I am announcing that the Department of Justice has opened an investigation into whether the
Chicago Police Department has engaged in a pattern or practice of violations of the Constitution or federal
law. Specifically, we will examine a number of issues related to the CPD’s use of force, including its use of
deadly force; racial, ethnic and other disparities in its use of force; and its accountability mechanisms, such as
its disciplinary actions and its handling of allegations of misconduct. This investigation has been requested
by a number of state and local officials and community leaders and has been opened only after a preliminary
review and careful consideration of how the Justice Department can best use our tools and resources to meet
Chicago’s needs.
In the coming months, the investigation will be conducted by experienced career attorneys from the Civil
Rights Division with the assistance of the U.S. Attorney’s Office for the Northern District of Illinois. They
will conduct a thorough, impartial and independent review of the allegations. The team will meet with a
broad cross-section of community members, city officials and law enforcement command staff and officers to
explain our process and to hear from anyone who wishes to share information relevant to the investigation.
We will examine, with our experts, policies, practices and data. And at the end of our investigation, we will
issue a report of our findings. If we discover unconstitutional patterns or practices, the Department of Justice
will announce them publicly, seek a court-enforceable agreement with the Chicago Police Department and
work with the city to implement appropriate reforms.
Our goal in this investigation – as in all of our pattern-or-practice investigations – is not to focus on indi-
viduals, but to improve systems; to ensure that officers are being provided with the tools they need – including
training, policy guidance and equipment – to be more effective, to partner with civilians and to strengthen
public safety. We understand that the same systems that fail community members also fail conscientious
officers by creating mistrust between law enforcement and the citizens they are sworn to serve and protect.
This mistrust from members of the community makes it more difficult to gain help with investigations, to
encourage victims and witnesses of crimes to speak up, and to fulfill the most basic responsibilities of public
safety officials. And when suspicion and hostility is allowed to fester, it can erupt into unrest.
Building trust between law enforcement officers and the communities they serve is one of my highest pri-
orities as Attorney General. The Department of Justice intends to do everything we can to foster those bonds
and create safer and fairer communities across the country. And regardless of the findings in this investiga-
tion, we will seek to work with local officials, residents and law enforcement officers alike to ensure that the
people of Chicago have the world-class police department they deserve.

sex, disability, religion, and national origin. The Civil As noted on its website, since its establishment,
Rights Division was created in 1957 by the enactment of the division has grown dramatically in both size and
the Civil Rights Act of 1957; it works to uphold the civil scope, and has played a role in many of the nation’s piv-
and constitutional rights of all Americans, particularly otal civil rights battles. Division attorneys prosecuted
some of the most vulnerable members of our society. Its the defendants accused of murdering three civil rights
jurisdiction to investigate police agencies is based on the workers in Mississippi in 1964, and were involved in
due process clause of the Fourteenth Amendment to the the investigations of the assassinations of Dr. Martin
U.S. Constitution. Luther King, Jr., and Medgar Evers. The division
Chapter seven: Preventing police misconduct 119

enforces a wide array of laws that protect the civil rights officer’s resignation or retirement if they are deemed
of all individuals. medically unfit or in other exceptional circumstances;
One of the more popular cases the division has for example, where a covert criminal investigation could
prosecuted was U.S. v. Watson, et al. The indictment be prejudiced.
secured by the division alleged that on September 2, According to the press announcement, these regula-
2005, in the wake of Hurricane Katrina, Officer David tions are aimed to ensure that officers are held to account
Warren of the New Orleans Police Department (NOPD) for their actions, that the truth can be established, that
shot Henry Glover in the back, as Officer Warren stood victims of police misconduct and their families are pro-
on a second-story balcony, and Glover stood in a park- vided justice, and that the police learn the full lessons of
ing lot below. Immediately after the shooting, as Glover each incidence of serious misconduct.
lay wounded in the street, Glover’s brother and a friend It was reported that Home Secretary Theresa May
flagged down a passing motorist and asked the motor- stated:
ist to help them get medical attention for Glover. The
motorist drove the three men to a nearby makeshift • Direct damage has been done to public confi-
NOPD station, where other NOPD officers surrounded dence by cases in which officers escaped justice by
the vehicle at gunpoint, ordered the passengers out, resigning or retiring where they might have been
and handcuffed them. As the police harassed the three dismissed.
men, they left Glover to die in the back seat of the car. • The public rightly expects police officers to act
Officer Gregory McRae then drove the car to a nearby with the highest standards of integrity and for
levee and burned the car, with Mr. Glover’s body still those suspected of misconduct to be subject to for-
on the back seat. mal disciplinary proceedings.
In June 2010, Officers Warren and McRae were • The ability of officers to avoid potential dismissal
indicted by a federal grand jury for civil rights vio- by resigning or retiring is an unacceptable situa-
lations. Also indicted on civil rights charges was tion. That is why I have introduced these reforms
Lieutenant Dwayne Scheuermann, who was accused of to ensure victims and their families are not denied
helping McRae burn the car. NOPD Lieutenants Robert the truth of police misconduct.2
Italiano and Travis McCabe were charged with obstruct-
ing justice by authoring and submitting false reports to
cover the illegal shooting and burning of Mr. Glover’s Police psychologists
body, and with other charges for lying to the FBI about According to police researcher Ellen Scrivner, police
the reports. departments have been using psychologists since the
On December 9, 2010, a federal jury convicted 1980s to help control police use of force. The psycholo-
Warren, McRae, and McCabe on civil rights and gists are involved in a broad range of activities, includ-
obstruction of justice counts. The jury acquitted ing screening job applicants and counseling, to help
Scheuermann and Italiano. On March 31, 2011, Warren officers cope with the stress that is inherent in police
was sentenced to serve 25 years and 9 months in work.3
prison, and was ordered to pay Glover’s family $7642 In Scrivner’s research on the use of police psycholo-
for funeral expenses. That same day, McRae was sen- gists, she noted that some of the psychologists inter-
tenced to serve 17 years and 3 months in prison, and viewed in the study had developed training models that
to pay restitution in the amount of $6000. Warren and take into account how people function under adverse
McRae have appealed their convictions, and McCabe conditions and in highly charged situations.
has been granted a new trial based on newly discov- Components of these models include:
ered evidence.*
• Cultural sensitivity and diversity
• Intervention by fellow officers to stop the use of
United Kingdom restricts excessive force
resignations or dismissal • The interaction of human perception and threat
In January 2015, the United Kingdom’s Home Office assessment
issued new regulations to stop U.K. police officers from • Decision-making under highly charged conditions
resigning or retiring when they are subject to gross • Psychological methods of situation control
misconduct investigations. A chief officer or police and • Patrol de-escalation and defusing techniques that
crime commissioner will only be able to consent to an not only teach a tactical response but also respond
to the fear stimulated by confrontations
* Cases involved include U.S. v. McRae, 795 F. 3rd. 471 (5th Cir, 2015) • Anger management programs that use self-assess-
and U.S. v. Howard 2015 WL 6669162 (E.D. La. 2015). ment and self-management techniques to provide
120 Police Misconduct: A Global Perspective

individual feedback to officers on how variable Steps in prevention

levels of legitimate anger influence judgment
• Training in verbal control and communication, Scrivner contends that because the profiles reveal dif-
including conflict resolution ferent reasons for the use of excessive force, police
departments need to develop a system of interventions
targeted to different groups of officers and at different
Profiles of violence-prone officers phases of their careers. The types of profiles also reveal
that individual personality characteristics are only one
Psychologists interviewed in her survey were asked aspect of excessive force and that risk for this behavior
about the characteristics of officers who had been is intensified by other experiences. Some of those expe-
referred to them because of the use of excessive force. riences implicate the organizational practices of the
Their answers did not support the conventional view police departments in which the officers work. To the
that a few “bad apples” are responsible for most exces- extent that this is true, it indicates the need for reme-
sive force complaints. Rather, their answers were used dial intervention at the departmental level as well as the
to construct five distinct profiles of different types of individual level (Box 7.2).
officers, only one of which resembled the “bad apple”
characterization.
The data used to create the five profiles constitute Petitions for investigations
human resource information that can be used to shape Civil rights organizations frequently pressure govern-
policy. Not only do the profiles offer an etiology of exces- mental units to investigate specific issues in law enforce-
sive force and provide insight into its complexity, but ment. For example, the American Civil Liberties Union
they also support the notion that excessive force is not of Nevada (ACLU-NV) and the National Association
just a problem of individuals but may also reflect orga- of the Advancement of Colored People (Las Vegas
nizational deficiencies. The profiles are presented in the Chapter) (NACP-LV) filed a petition to the U.S. DOJ,
following profiles in ascending order of frequency: Civil Rights Division, Special Litigation Section request-
ing an investigation into the Las Vegas Metropolitan
• Officers with personality disorders that place Police Department (LVMPD). The petition alleged that
them at chronic risk the LVMPD had engaged in a pattern or practice of
• Officers whose previous job-related experience conduct by law enforcement officers that deprived per-
places them at risk sons of their rights, privileges, or immunities secured
• Officers who have problems at early stages in their or protected by the U.S. Constitution or laws of the
police careers United States. The petition alleged that this pattern is
• Officers who develop inappropriate patrol styles manifest through the allegations of police misconduct
• Officers with personal problems4 and the excessive use of force, contrary to the Fourth

BOX 7.2 THE NEED FOR BODY CAMERAS

The use of body cameras by police became very popular in 2014 and 2015. Organizations including the Police
Executive Research Forum and the American Civil Liberties Union argue that body cameras can increase
transparency and accountability in police departments, ensuring that officers act within the letter of law and
that, when they don’t, there’s documented evidence available to help try and punish them.
A video of an incident between Cleveland police officers and a citizen shows that body cameras may help
both the police and the public understand what happened during the incident. The video probably saved
four Cleveland policers’ jobs. This incident establishes that body cameras are not just a tool to expose police
wrongdoing it also protects the innocent officer.
According to media reports, on March 11, 2015 the Cleveland police officers were climbing stairs to a
citizen’s apartment. When one officer turned the corner, the citizen opened fire on the officers. One video
recorded the officers pleading with the citizen to put his gun down. Another camera shows one officer telling
the citizen to “put the gun down and we’ll get you all the help you need.” Another camera indicates that the
wounded officer stating: “I know you shot me, but I’m not going to shoot you.” A few seconds later the citizen
raises his gun and the officers open fire killing him.
A grand jury determined that the four officers were justified in using lethal force against the citizen. The
jury concluded that the officers had gone to the citizen’s home that night after his wife went to a police station
and reported that her husband had threatened to kill both her and their landlady.5
Chapter seven: Preventing police misconduct 121

Amendment right against unreasonable searches and of force, wrongful death, unlawful seizures, false
seizure and the right to due process of law under the arrests, and wrongful incarceration. The petition
Fourteenth Amendment.6, 7 claimed that the most egregious cases of police mis-
conduct in recent Las Vegas history highlight the sys-
Note: The author has no knowledge of and
temic and ongoing nature of LVMPD’s excessive use of
has not investigated the allegations con-
force, including deadly force, against Nevada citizens.
tained in the petition, but for the purposes of
These instances stimulate public dismay and lead the
demonstrating the nature of this complaint,
public to question LVMPD’s dedication to the protec-
is using those facts as if they are correct. The
tions enshrined in the laws and the Constitution of the
petition serves as an example of how an orga-
United States.
nization may request action from the DOJ.
The petition noted that, currently, two primary
The petition, with accompanying documents, civil mechanisms exist to review an officer’s use of
alleges that the LVMPD is beset with serious systemic deadly force in the line of duty: the LVMPD’s Use of
and training problems that include: Force Review Board and the Clark County coroner’s
inquest process. If the shooting results in death, homi-
• Recurring, documented instances of violent and cide detectives investigate the case and present it to
often fatal treatment of people who come in con- the coroner’s inquest. Citizen jurors then determine if
tact with the police, through both the intentional the officer’s actions were justified, excusable, or crimi-
use of deadly force, excessive force and/or through nal. The Use of Force Review Board also looks at fatal
negligent actions. shooting cases to see if the officer violated depart-
• False arrests and stops made without reasonable ment policy, but it has never disagreed with an inquest
suspicion of criminal activity, much less probable jury. The petition contended: “In essence, then, these
cause, along with improper searches, malicious amount to puppet institutions, and are incapable of
prosecutions, and other corrupt practices. providing meaningful review of an officer’s misuse of
• An ineffective process for identifying and deter- deadly force.”
ring such conduct. The petition noted that the DOJ is well equipped to
• Insufficient processes for receiving, handling, investigate the cause of these repeated incidents. The
adjudicating, and announcing the disposition of investigation should determine why the LVMPD initi-
complaints alleging misconduct or violation of ated or escalated the confrontations; whether and why
rules, or the excessive use of force. the officers perceived a threat from certain individuals;
• The failure to have a complete set of modem and whether officers view the use of force differently when
meaningful policies, practices, or training procedures they are confronting a person of color; why the officers
that effectively prevent the excessive use of force. chose not to use de-escalation tactics in responding to
• Deliberate indifference to the constitutional rights perceived law violations to avoid the use of violence;
of persons with whom the police come into contact. whether LVMPD employees who witness excessive
• Costly litigation expenses, including verdicts, force report it promptly; whether the LVMPD supervi-
arbitrations, and settlements, together with the sors promptly and properly gathered the evidence and
expenses of defending those cases: since 1991, the fully investigated the allegations of excessive use of
Las Vegas police have paid $18 million to settle var- force.
ious property damage, excessive force, and wrong- About eight months after the petition was filed, the
ful arrest claims (LVMPD fiscal affairs committee). DOJ completed its review of LVMPD and the depart-
At the same time, lawsuits and citizen complaints ment’s use of force policies. The DOJ report contained
reveal continuing patterns of misbehavior, as if 75 findings and recommendations. Among the findings
nothing has been corrected in response to prior was the need for significant changes to the Use of Force
lawsuits or complaints. Review Board, new tactical practices when multiple offi-
cers respond to a crime scene, and the implementation
The petition requested: “On behalf of the people of new technologies, such as body cameras. The report
who reside, work and visit the city of Las Vegas and its also found that while the department’s new use of force
surrounding areas, we implore the Civil Rights Division policy is comprehensive, the format of the policy is cum-
to investigate the LVMPD. The conduct described herein bersome and not structured in a clear and concise man-
has left citizens dead, permanently injured and other- ner that would allow for quick guidance when needed.
wise damaged. Further, this abuse has created an atmo- The report recommends that the new policy be sepa-
sphere of distrust with the local police department.” rated into smaller, specific policies that quickly address
The petition contained a list of lawsuits filed by issues such as the use of firearms and less-lethal weap-
the people against the LVMPD alleging excessive use ons (Box 7.3).
122 Police Misconduct: A Global Perspective

BOX 7.3 MANAGING POLICE MISCONDUCT AND APPLYING

DISCIPLINE: A CASE STUDY BY KEN PEAK

[Dr. Ken Peak is Professor Emeritus and former Chairman, Department of Criminal Justice, University of Nevada,
Reno. Ken has authored or coauthored 32 books and more than 60 monographs, journal articles, and invited chap-
ters on a variety of policing topics. During 45 years in the criminal justice field, Ken devoted 37 years to academia
(instructing policing, justice administration, victimology, planned change, and comparative justice systems
courses), and eight years serving (twice) as a university police chief, criminal justice planner, director of a four-
state Technical Assistance Institute, and municipal police officer. He received teaching awards and two guberna-
torial appointments to statewide criminal justice committees, and held a number of national and regional offices.]

THE CASE STUDY

Clearly the public’s trust and respect are precious commodities, quickly lost through improper behavior by
police employees and the improper handling of an allegation of misconduct. Serving communities with pro-
fessionalism and integrity should be the goal of every police agency and its employees in order to ensure that
trust and respect are maintained. The public expects that police agencies will make every effort to identify
and correct problems and respond to citizens’ complaints in a judicious, consistent, fair, and equitable manner.
Employee misconduct and violations of departmental policy are the two principal areas in which disci-
pline is applied. Employee misconduct includes acts that harm the public, such as corruption, harassment,
brutality, and violations of civil rights. Violations of policy may involve a broad range of issues, from sub-
stance abuse and insubordination to tardiness or minor violations of dress.9
There are well-established minimum due process requirements for discharging public employees, includ-
ing the right to:

• a public hearing.
• be present during the presentation of evidence against them
• cross-examine their superiors, and to present their own witnesses and other evidence concerning their
side of the controversy.
• be represented by counsel.
• have an impartial referee or hearing officer presiding.
• have a decision based on the weight of the evidence introduced at the hearing.

Such protections apply to any disciplinary action that can significantly affect a police employee’s employ-
ment, reputation, or future chances for special assignment or promotion.
With this in mind, and given the current close public scrutiny today in the aftermath of police shootings
of unarmed people (primarily minorities), read the following case study and consider if and how you might
have handled the matter differently. Also reflect on whether or not the current system of disciplining person-
nel who are part of a state civil service system affords such employees too many, not enough, or the proper
amount of due process rights.
As a bit of background, the author has been a university police chief at two institutions of higher edu-
cation. The following disciplinary matter occurred at one of them. I have often used this case study in my
Chapter seven: Preventing police misconduct 123

upper-division justice administration courses, dividing the classes into groups and giving them the basic
facts, then soliciting their views as to how they would attempt to handle the matter and attempt to arrive at a
proper outcome. This case study demonstrates for students the fortitude, types of knowledge, time and effort,
and even personal threats and discomfort that can be involved in undergoing what is typically a multifac-
eted endeavor – involving several agencies and parties – as you attempt to administer disciplinary action for
employee misconduct. It is almost an article of faith that administrators in medium- and large-sized agencies
devote the majority of their time dealing with employee problems. As one former police manager once told
the author, “I can’t tell you how to make a DUI arrest, but I can tell you how to discipline an employee.”
“Jones, Jurisdiction, and the Injudicious Report”
The agency was seeking to promote an employee to the position of detective. The process was not going
to be particularly involved; the process to be used, and one that is used by many agencies, was what is termed
a “T&E” (for training and education) exam, and examining each applicant’s “KSAs” – or knowledge, skills,
and abilities. Taken together, we hope to identify which individual might be the most qualified for this role
(looking at the individual’s productivity, quality of arrests, demonstration of investigative prowess, formal
education and training, and so on). Certainly an assessment center or some other similarly rigorous process
would have been preferred, but given the quality of personnel of the time, we felt this T&E/KSA approach
would work well. As is often the case – due to the status accorded the detective position and the ability to wear
civilian clothes, have weekends off, work largely in an unsupervised capacity, and so on - we anticipated that
a number of quality personnel would aspire to become a detective.
One of the patrol officers wishing to obtain the detective grade was a nine-year veteran who had a repu-
tation for being a tough cop who enjoyed displaying “swagger”; of course, he could outshoot anyone in the
agency on the pistol qualification range as well. Tall, lean, and with a heavily pock-marked face, he did indeed
present a threatening aspect and could cower lesser experienced officers with little difficulty.
It is important to note that I had heard rumors of this officer’s heavy-handed behavior from his peers; one
recent incident involved him forcibly shoving a high school student over the hood of his vehicle in the campus
arena’s parking lot for not being deferential enough. A former police chief in this agency informed me that
this officer was also the kind of person who seemingly “had a screw in the back of his head, holding every-
thing together, but if the screw ever came loose, he might be one of those crackpots who shoots at people from
atop a campus building.” Such was the type of officer I inherited and who wanted to become a detective – and
who also had nine years of satisfactory and above personnel evaluations.
There had been some thefts of electronic equipment from a building on campus, and so on one particular
weekend our officer (“Jones”) was walking through the building and performing a visual check. He hap-
pened to encounter a graduate student who was working in a lab and began to question him. Apparently
believing that the student might know more about the thefts that he was revealing, Jones decided to take the
student to the campus police station for further questioning. Upon entering the station’s interviewing room,
witnesses said Jones slammed the door loudly and slammed his baton down on the desk (maneuvers that
were apparently intended to show the student he meant business and to frighten the “suspect” into confess-
ing to the crimes. Failing to obtain a confession from the student, Jones released him a short while later. The
following Monday morning I was met at my office by the student, then quite incensed about the manner in
which he had been treated and wishing to file a complaint against Jones.
While that complaint’s investigation was in process, Jones had another opportunity to bring attention
to himself. One day around noon a shooting was reported to have occurred inside a residence located a few
blocks off-campus (outside of campus officers’ jurisdiction). Jones, apparently bored but curious, drove his
patrol vehicle to the home. Upon arrival he entered the home, where a number of fire and emergency medical
personnel were working on an injured (shot) man who was lying prone on the kitchen floor. Jones happened
to see a large handgun resting on a room divider; he picked it up and - apparently struck by the size and type
of weapon (it being of some foreign brand) - waved it around in the air in awe and examined it from various
angles. A fire department captain, observing this activity, yelled at Jones “Hey, put that pistol down, it might
be evidence.” Jones put the handgun back and left the scene.
Upon being contacted by the fire captain and informed of Jones’s behavior, I requested that Jones draft a
report for me setting forth his actions at the home, and why he had left his jurisdiction. He provided a report,
but denied ever touching the handgun.
[At this point in my justice administration courses, I pose to students the following questions:
124 Police Misconduct: A Global Perspective

1. What are the primary issues that are involved in this situation?
2. Do you believe sufficient grounds exist for bringing disciplinary action against Jones? If so, what
charges? Punishment?
3. Do his supervisors’ past standard and above annual performance ratings have any bearing on this mat-
ter or its outcome? If so, how?]

Given our belief that Jones had lied in his report (knowing Jones’ affinity with firearms, his report con-
flicting with credible information provided by the fire captain and other witnesses at scene) as well as our
determination that he had violated a number of university and departmental codes and policies (as well as
Jones’ previous involvement with the graduate student), it was felt that some formal disciplinary action was
required. Several meetings and discussions were held involving university human resources personnel, uni-
versity counsel, and other police employees; together they consumed dozens if not hundreds of hours. In the
final analysis, it was believed that we had enough justification for terminating Jones. A “statement of charges”
was prepared, approximately fifty pages in length, setting forth all of the various state statutes, university
code, and department policy violations that had been perpetrated by Jones.
Jones was then called into my office, where I (with a police sergeant as witness) presented Jones with his
copy of the charges. I notified him that we fully intended to terminate him. As a card-carrying member of a
state employees association, he immediately made a phone call and was quickly assigned legal counsel; of
course, in their view, we were acting in unconscionable fashion in trying to separate a fine officer from his job
and destroy his career.
The university had a hearing officer (an attorney) on retainer to conduct public hearings in such matters,
so both sides were informed of the date and location the hearing would take place, at which time we would
present our case setting forth reasons why we felt Jones should be compelled to forfeit his civil-service posi-
tion; conversely, his attorneys would take the opposing position.
The day before the hearing was to be held, my family (wife and two small children) was stalked by some-
one following them in a vehicle as they were both going to and returning from the grocery running other
errands. They were naturally quite frightened upon returning home and while relating the experience to me.
Furthermore, that evening, several hang-up phone calls were made to our residence.
On the day of the hearing, all was in readiness and both sides prepared to present their arguments to the
hearing officer. However, as can occur in actual criminal or civil trials, there was first an attempt on the part
of the hearing officer to bring the attorneys together (representing the university and the employees’ union) to
see if an agreement might be reached beforehand. That was accomplished, and I was informed of the outcome
minutes prior to the appointed start time of the hearing: Jones had agreed to accept a disciplinary action in
the form of 7 days off without pay in exchange for all other charges being dropped.
It goes without saying that I (and many other campus police and HR personnel) were quite disappointed
upon learning of this turn of events; we felt that neither did the punishment fit the offenses, nor all of our (to
that point) hundreds of hours of preparation justified. The head of the campus HR office, a very learned and
experience individual, came to me at once and simply said “You can’t terminate someone, for these reasons,
who has received nine years of satisfactory and above performance evaluations.”
But we had in fact “won” something after all. Now, with Jones’ having a formal record of misconduct and
disciplinary action against him, both parties knew that he would be treading on thin ice in the future if he
should engage in any misconduct. Indeed, after working one more year, he resigned his position and left the
state. I might add that before resigning and shortly after the above matter concluded, he came by my office a
few times; on such occasions our visits were amicable in nature. I interpreted his visits to mean that he knew
he deserved to be terminated, and at least respected me for trying to do so.

Good to great
What does this case study have to say to aspiring criminal justice administrators, middle managers, and first-
line supervisors about how to approach the problem of employee misconduct? First and foremost, it speaks to
the need to be very honest and forthright in preparing and explaining employees’ performance evaluations.
In the above case, former chiefs had chosen to overlook Jones’ misconduct, preferring instead to take the
Chapter seven: Preventing police misconduct 125

easier path and assign a satisfactory or above rating for Jones during a nine-year period, even in the face of
heavy-handed behavior over the course of his agency tenure.
In a widely-read book entitled Good to Great and the Social Sectors, concerning how to take a good organiza-
tion and convert it into a superb one, Jim Collins coined the term Level 5 leader to describe the highest level
of executive capabilities; he said such leaders are ambitious, but their ambition is directed first and foremost
to the organization and its success, not to personal renown. Level 5 leaders, Collins stressed, are “fanatically
driven, infected with an incurable need to produce results.” Collins used a bus metaphor when talking about
igniting the transformation of an organization from good to great: they first got the right people on the bus
(and the wrong people off the bus) and then figured out where to drive it. In fact, Collins wrote, good-to-great
organizations, have a “culture of discipline” in which employees show extreme diligence and intensity in
their thoughts and actions. Collins stated that picking the right people and getting the wrong people off the
bus are critical: “By whatever means possible, personnel problems have to be confronted in an organization
that aspires to greatness.”10, 11 Hence, the extremely important matter of being tough enough to tell people
what they’re doing wrong, where improvement is needed, and the consequences of not doing so. Second, we
owe it to the other good employees to weed out the incompetent problem employees; it is in the best interest
of the agency morale to do so.

Positive discipline
Which brings us to the topic of a positive discipline program (also known as positive counseling), which
attempts to change employee behavior without invoking punishment. It is always preferable to salvage
employees in lieu of termination whenever possible to do so; we have a lot of time and resources invested in
recruiting, training, and equipping criminal justice employees, so, again, whenever possible, we want to try
to re-direct (“save”) the work habits of those employees who might be slipping in their performance.
Here’s how it works: assume an employee (“John”) has been nonproductive and non-punctual, has devel-
oped interpersonal problems with his co-workers, and/or has other problems on the job. To this point, John
has been in control of the situation—he has been on the offensive, one might say—whereas the supervisor
(“Jane”) and his co-workers have been on the defensive. John is jeopardizing the morale and productivity of
the workplace.
Jane calls John into her office. She might begin with a compliment to him (if indeed she can find one)
and then proceeds to outline all of his workplace shortcomings; this demonstrates to John that Jane “has
his number” and is aware of his various problems. Jane explains to him why it is important that he improve
(for reasons related to accomplishing agency mission and values, interpersonal relations, morale, and so on)
and the benefits he might realize from his improvement (promotions, pay raises, bonuses). She also outlines
what can happen if he does not show adequate improvement (demotion, transfer, termination). Now having
gained John’s attention, she gives him a certain time period (e.g., 30, 60, or 90 days) in which to improve; she
emphasizes, however, that she will be constantly monitoring his progress. She might even ask John to sign a
counseling statement form that sets forth all they have discussed, indicating that John has received counsel-
ing and understands the situation.
Note that Jane is now on the offensive, thereby putting John on the defensive and in control of his des-
tiny; if he fails to perform, Jane would probably give him a warning, and if the situation continues, he will be
terminated. If he sues or files a grievance, Jane has proof that every effort was made to allow John to salvage
his position. This is an effective means of giving subordinates an incentive to improve their behavior while
at the same time making the department less vulnerable to successful lawsuits. It must be emphasized that
adequate documentation of John’s behavior is necessarily developed prior to making an attempt to terminate
him. I have used this program to good success (including once with a parking employee who most definitely
should not have been put in that position!); it can work well.
An important caveat: as with all of the information provided above relating to dealing with employee
misconduct, your ability and approaches to discipline with your employees will depend on your local and
state laws, agency and jurisdictional policies, and agency culture.
126 Police Misconduct: A Global Perspective

When the report was issued, the LVMPD had • Civil rights organizations frequently pressure
already made progress on implementing a number of governmental units to investigate specific issues
the report’s recommendations, addressing nearly half of in law enforcement.
the calls for action prior to the release of the report from
the COPS office. “One of the most important issues fac-
ing law enforcement is the public perception of the legit- Practicum
imate use of force,” said Community Oriented Policing TULSA, Okla.— An Oklahoma suspect accused of rob-
Services (COPS) office director Bernard Melekian. bing another man at knifepoint has been arrested after
“And far too often, the public perception of police use the victim described his attacker’s distinctive facial tat-
of force is different from those who are in law enforce- toos, including a pair of horns and an antipolice obscen-
ment. We’ve now developed a tool to help assist agen- ity. If you were to stop a man with antipolice obscenities
cies address community concerns, effectively revamp tattooed on his face, how would you handle him as a
policies and practices, and enhance both community police officer?
engagement and community support.”8

Discussion questions
Summary 1. Explain how the FBI investigates police misconduct.
2. Explain what types of police officers are more
• One effective method of combating police miscon- likely to be violent.
duct is the opening of an investigation by the U.S. 3. What are the two principal reasons public employ-
DOJ. ees are fired?
• The Civil Rights Division is the primary institu- 4. Are there well-established minimum due process
tion within the U.S. DOJ responsible for enforcing requirements for discharging public employees?
federal statutes prohibiting discrimination on the 5. How have video cameras helped the police?
basis of race, sex, disability, religion, and national
origin.
• The Civil Rights Division was created in 1957 by References
the enactment of the Civil Rights Act of 1957; it 1. Press announcement on Brett Russell by the Office of
works to uphold the civil and constitutional rights Public Affairs, U.S. Department of Justice on July 31,
of all Americans, particularly some of the most 2015.
vulnerable members of our society. 2. Announcement by United Kingdom Home Office on 12
• In January 2015, the United Kingdom’s Home January 2015. Posted at https://www.gov.uk/govern-
Office issued new regulations to stop U.K. police ment/news/new-regulations-prevent-police-officers-
officers from resigning or retiring when they are retiring-or-resigning-to-avoid-dismissal. Accessed on
December 6, 2015.
subject to gross misconduct investigations. 3. Ellen Scrivner (October, 1994) Controlling Police Use of
• A chief officer or police and crime commissioner Excessive Force: The Role of the Police Psychologist. National
will only be able to consent to an officer’s resig- Institute of Justice, Research in Brief, Washington, DC:
nation or retirement if they are deemed medi- Department of Justice.
cally unfit or in other exceptional circumstances, 4. Ellen Scrivner (October, 1994) Controlling Police Use
for example where a covert criminal investigation of Excessive Force: The Role of the Police Psychologist,
could be prejudiced. p. 3. National Institute of Justice, Research in Brief,
Washington, DC: Department of Justice.
• According to police researcher Ellen Scrivner,
5. Henry Gass (October 13, 2015) Cleveland case shows
police departments have been using psychologists how body cameras can help police. Christian Science
since the 1980s to help control police use of force. Monitor, p. A4.
• The psychologists are involved in a broad range 6. The material for this section as taken from the original
of activities including screening job applicants and petition filed with the DOJ on January 10, 2012 (copy
counseling. available online at http://www.cops.usdoj.gov/pdf/01-
• The profiles are presented in the following profiles 14-12-ACLU-NAACP-DOJ-petition-LVMPD. Accessed
in ascending order of frequency: officers with per- on October 13, 2015).
7. Brian Haynes (January 12, 2012) Las Vegas police shoot
sonality disorders that place them at chronic risk;
and kill. Las Vegas Review-Journal, p. 1.
officers whose previous job-related experience 8. Justice News press release posted on the DOJ website
places them at risk; officers who have problems at http://www.justice.gov/opa/pr/department-jus-
at early stages in their police careers; officers who tice-completes-review-las-vegas-metropolitan-po-
develop inappropriate patrol styles; and officers lice-department-s-use-force. Accessed on October 19,
with personal problems. 2015.
Chapter seven: Preventing police misconduct 127

9. V. McLaughlin and R. Bing (1987) Law enforce- 11. Chuck Wexler, Mary Ann Wycoff, and Craig Fischer
ment personnel selection. Journal of Police Science and (2007) Good to Great: Application of Business Management
Administration, 15, 271–276. Principles in the Public Sector. Washington, DC: Office of
10. Jim Collins (2005) Good to Great and the Social Sectors: Community Oriented Policing Services and the Police
A Monograph to Accompany Good to Great. New York: Executive Research Forum, p. 5.
HarperCollins.
chapter eight

Civil liability for police misconduct

Learning objectives his complaint asserted that the arrest and search were
effected without a warrant, and that unreasonable
After studying this chapter, the reader should under- force was employed in making the arrest; fairly read, it
stand the following concepts and issues: alleged, as well, that the arrest was made without prob-
able cause. Petitioner claimed to have suffered great
• The civil statutes that may be used to combat humiliation, embarrassment, and mental suffering as
police misconduct a result of the agents’ unlawful conduct, and sought
• The meaning of the concept of color of law $15,000 damages from each of them. The district court,
• How summary judgments work on respondents’ summary judgment motion, dismissed
• How qualified immunity protects officers the complaint on the ground that it failed to state a
• What areas qualified immunity does not protect cause of action. The U.S. Court of Appeals affirmed on
• The liability of cities and police departments that basis. The U.S. Supreme Court granted review and
reversed the decision.
Civil rights actions The Supreme Court noted that the respondents
(agents) did not argue that petitioner should be entirely
In the majority of cases where the police, city, and so without remedy for an unconstitutional invasion of his
on are sued for violation of civil rights in federal court, rights by federal agents. In respondents’ view, however,
the suit is filed pursuant to Civil Rights Act, 42 U.S. the rights that petitioner asserted—primarily rights
Code 1983. The leading case on this issue is Bivens v. Six of privacy—were creations of state and not of federal
Unknown Named Agents of the Federal Bureau of Narcotics.* law. Accordingly, they argued, petitioner might obtain
As a side note, I have always wondered how the agents money damages to redress invasion of these rights
could be unknown but named. only by an action in tort, under state law, in the state
In Bivens, the Supreme Court, with Mr. Justice courts. In this scheme, the Fourth Amendment would
Brennan writing the opinion, held that complaint alleg- serve merely to limit the extent to which the agents
ing that agents of the Federal Bureau of Narcotics, acting could defend the state law tort suit by asserting that
under color of federal authority, made warrantless entry their actions were a valid exercise of federal power:
of petitioner’s apartment, searched the apartment, and if the agents were shown to have violated the Fourth
arrested him on narcotics charges, all without probable Amendment, such a defense would be lost to them and
cause, stated federal cause of action under the Fourth they would stand before the state law merely as private
Amendment for damages recoverable on proof of inju- individuals. Candidly admitting that it was the policy of
ries resulting from agents’ violation of that Amendment. the Department of Justice to remove all such suits from
This case has its origin in an arrest and search car- the state to the federal courts for decision, respondents
ried out on the morning of November 26, 1965. Petitioner’s nevertheless urged that the court uphold dismissal of
complaint alleged that, on that day, respondents, agents petitioner’s complaint in federal court, and remit him to
of the Federal Bureau of Narcotics, acting under claim of filing an action in the state courts so that the case might
federal authority, entered his apartment and arrested him properly be removed to the federal court for decision on
for alleged narcotics violations. The agents manacled peti- the basis of state law.
tioner in front of his wife and children, and threatened The Supreme Court held that respondents’ the-
to arrest the entire family. They searched the apartment sis rested on an unduly restrictive view of the Fourth
from stem to stern. Thereafter, petitioner was taken to the Amendment’s protection against unreasonable searches
federal courthouse in Brooklyn, where he was interro- and seizures by federal agents, a view that has consis-
gated, booked, and subjected to a visual strip search. tently been rejected by the court. Respondents sought
On July 7, 1967, petitioner brought suit in federal to treat the relationship between a citizen and a federal
district court. In addition to the allegations mentioned, agent unconstitutionally exercising his authority as no
different from the relationship between two private citi-
* Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, zens. In so doing, they ignore the fact that power, once
403 U.S. 388 (1971). granted, does not disappear as if it were a magic gift

129
130 Police Misconduct: A Global Perspective

when it is wrongfully used. An agent acting—albeit may take into account the different status of one clothed
unconstitutionally—in the name of the United States with the authority of the federal government. For, just as
possesses a far greater capacity for harm than an indi- state law may not authorize federal agents to violate the
vidual trespasser exercising no authority other than his Fourth Amendment, neither may state law undertake to
or her own. limit the extent to which federal authority can be exer-
The court noted that its cases make clear that the cised. The inevitable consequence of this dual limitation
Fourth Amendment operates as a limitation on the exer- on state power is that the federal question becomes not
cise of federal power, regardless of whether the state in merely a possible defense to the state law action, but
whose jurisdiction that power is exercised would pro- an independent claim, both necessary and sufficient to
hibit or penalize the identical act if engaged in by a pri- make out the plaintiff’s cause of action.
vate citizen. It guarantees to citizens of the United States The court’s opinion, that damages may be obtained
the absolute right to be free from unreasonable searches for injuries consequent on a violation of the Fourth
and seizures carried out by virtue of federal authority. Amendment by federal officials, should hardly seem
Where federally protected rights have been invaded, it a surprising proposition. Historically, damages have
has been the rule from the beginning that courts will be been regarded as the ordinary remedy for an invasion
alert to adjust their remedies so as to grant the neces- of personal interests in liberty. Of course, the Fourth
sary relief. Amendment does not, in so many words, provide for
The court noted that its cases have long since its enforcement by an award of money damages for the
rejected the notion that the Fourth Amendment pro- consequences of its violation. But, it is well settled that
scribes only such conduct as would, if engaged in by where legal rights have been invaded, and a federal
private persons, be condemned by state law. At the statute provides for a general right to sue for such inva-
invitation of state law enforcement officers, a federal sion, federal courts may use any available remedy to
prohibition agent participated in the search. The court make good the wrong done. The present case involves
pointed out that its recent decisions regarding elec- no special factors counseling hesitation in the absence
tronic surveillance have made it clear beyond perad- of affirmative action by Congress. The court noted that
venture that the Fourth Amendment is not tied to the they were not dealing with a question of federal fiscal
niceties of local trespass laws. Respondents’ argument policy. Noting that Congress was normally quite solici-
that the Fourth Amendment serves only as a limitation tous where the federal purse was involved, the court
on federal defenses to a state law claim, and not as an pointed out that the United States was the party plain-
independent limitation on the exercise of federal power, tiff to the suit, and the United States has power at any
was rejected. time to create the liability. Finally, the court noted that
The court pointed out that interests protected by they could not accept respondents’ formulation of the
state laws regulating trespass and the invasion of pri- question as to whether the availability of money dam-
vacy, and those protected by the Fourth Amendment’s ages is necessary to enforce the Fourth Amendment; for
guarantee against unreasonable searches and seizures, there is no explicit congressional declaration that per-
may be inconsistent or even hostile. Thus, citizens may sons injured by a federal officer’s violation of the Fourth
bar the door against an unwelcome private intruder, or Amendment may not recover money damages from the
call the police if he or she persists in seeking entrance. agents, but must instead be remitted to another remedy,
The availability of such alternative means for the pro- equally effective in the view of Congress. The question
tection of privacy may lead the state to restrict imposi- is merely whether petitioner, if he can demonstrate an
tion of liability for any consequent trespass. A private injury consequent on the violation by federal agents of
citizen, asserting no authority other than his or her his Fourth Amendment rights, is entitled to redress his
own, will not normally be liable in trespass if he or injury through a particular remedial mechanism nor-
she demands, and is granted, admission to another’s mally available in the federal courts. The very essence
house. But one who demands admission under a claim of civil liberty certainly consists in the right of every
of federal authority stands in a far different position. individual to claim the protection of the laws, when-
The mere invocation of federal power by a federal law ever he receives an injury. Having concluded that peti-
enforcement official will normally render futile any tioner’s complaint states a cause of action under the
attempt to resist an unlawful entry or arrest by resort Fourth Amendment, the court held that petitioner was
to the local police; and a claim of authority to enter is entitled to recover money damages for any injuries he
likely to unlock the door as well. In such cases, there is had suffered as a result of the agents’ violation of the
no safety for the citizen, except in the protection of the Amendment.
judicial tribunals, for rights which have been invaded The judgment of the Court of Appeals was reversed
by the officers of the government, professing to act in and the case was remanded for further proceedings
its name. Nor is it adequate to answer that state law consistent with this opinion (Box 8.1).
Chapter eight: Civil liability for police misconduct 131

BOX 8.1 42 U.S.C.A. § 1983

CIVIL ACTION FOR DEPRIVATION OF RIGHTS

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory
or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other per-
son within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken
in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was vio-
lated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable
exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

State law torts • Excessive use of force

• Sexual misconduct
Frequently, state officers may be sued under §1983 in • False arrest and fabrication of evidence
federal court for violations of state tort laws. Generally, • Deprivation of property
the actions are based on allegations of negligence. The • Failure to keep from harm
requirements necessary for a negligence action are sum-
marized as follows:
Filing a complaint
• A duty or obligation, recognized by the law, requir-
To file a color-of-law complaint, one should contact one’s
ing the person to conform to a certain standard of
local FBI office by telephone, in writing, or in person.
conduct, for the protection of others against unrea-
The following information should be provided:
sonable risks.
• A failure on the person’s part to conform to the
standard required; a breach of duty. • All identifying information for the victim(s)
• A reasonably close causal connection between the • As much identifying information as possible for
conduct and the resulting injury. This connection the subject(s), including position, rank, and agency
is commonly known as “legal cause” or “proximate employed
cause” and includes the notion of cause in fact. • Date and time of incident
• Actual loss or damage resulting to the interests of • Location of incident
another. • Names, addresses, and telephone numbers of any
witness(es)
• A complete chronology of events
Color of law • Any report numbers and charges with respect to
Police officers and other governmental officials have the incident
been given power over citizens by local, state, and fed-
eral government agencies. This is necessary to enforce to One may also contact the United States Attorney’s
laws and ensure justice. The powers include the author- office in one’s district or send a written complaint to:
ity to detain, arrest, search persons and property, and
to seize property or persons. To prevent abuse of this
authority, it is a federal crime for anyone acting under Assistant Attorney General
“color of law” to abuse that authority. Civil Rights Division
U.S. Code 42 §1983 is not an appropriate cause of Criminal Section
action for an injured party where a federal law enforce- 950 Pennsylvania Avenue, Northwest
ment officer is alleged to have caused the injury, because Washington, DC 20530
it is limited in application to those persons who are act-
ing under apparent “authority of state law.” FBI investigations vary in length. Once their investi-
On the federal level, it is the FBI that is the lead gation is complete, the FBI should forward the findings
authority to investigate possible color-of-law abuses. In to the U.S. Attorney’s office within the local jurisdiction
a normal year, about 42% of the FBI’s total civil rights and to the U.S. Department of Justice in Washington,
caseload involves the issue of abuse of authority under D.C., which will decide whether or not to proceed
color of law. Most of these cases can be grouped into five toward prosecution and handle any prosecutions that
broad areas: follow (Box 8.2).
132 Police Misconduct: A Global Perspective

BOX 8.2 FEDERAL CIVIL RIGHTS STATUTES

TITLE 18, U.S.C., SECTION 249 - MATTHEW SHEPARD AND

JAMES BYRD, JR., HATE CRIMES PREVENTION ACT
This statute makes it unlawful to willfully cause bodily injury—or attempting to do so with fire, firearm, or
other dangerous weapon—when (1) the crime was committed because of the actual or perceived race, color,
religion, national origin of any person, or (2) the crime was committed because of the actual or perceived
religion, national origin, gender, sexual orientation, gender identity, or disability of any person and the crime
affected interstate or foreign commerce or occurred within federal special maritime and territorial jurisdiction.

TITLE 18, U.S.C., SECTION 241 - CONSPIRACY AGAINST RIGHTS

This statute makes it unlawful for two or more persons to conspire to injure, oppress, threaten, or intimidate
any person of any state, territory or district in the free exercise or enjoyment of any right or privilege secured
to him/her by the Constitution or the laws of the United States, (or because of his/her having exercised the
same).
It further makes it unlawful for two or more persons to go in disguise on the highway or on the premises
of another with the intent to prevent or hinder his/her free exercise or enjoyment of any rights so secured.

TITLE 18, U.S.C., SECTION 242 - DEPRIVATION OF RIGHTS UNDER COLOR OF LAW
This statute makes it a crime for any person acting under color of law, statute, ordinance, regulation, or
custom to willfully deprive or cause to be deprived from any person those rights, privileges, or immunities
secured or protected by the Constitution and laws of the U.S.
This law further prohibits a person acting under color of law, statute, ordinance, regulation or custom to
willfully subject or cause to be subjected any person to different punishments, pains, or penalties, than those pre-
scribed for punishment of citizens on account of such person being an alien or by reason of his/her color or race.
Acts under “color of any law” include acts not only done by federal, state, or local officials within the
bounds or limits of their lawful authority, but also acts done without and beyond the bounds of their law-
ful authority; provided that, in order for unlawful acts of any official to be done under “color of any law,”
the unlawful acts must be done while such official is purporting or pretending to act in the performance of
his/her official duties. This definition includes, in addition to law enforcement officials, individuals such as
Mayors, Council persons, Judges, Nursing Home Proprietors, Security Guards, etc., persons who are bound
by laws, statutes ordinances, or customs.

TITLE 18, U.S.C., SECTION 245 - FEDERALLY PROTECTED ACTIVITIES

This statute prohibits willful injury, intimidation, or interference, or attempt to do so, by force or threat of
force of any person or class of persons because of their activity as:

(a) A voter, or person qualifying to vote...;

(b) a participant in any benefit, service, privilege, program, facility, or activity provided or administered by
the United States;
(c) an applicant for federal employment or an employee by the federal government;
(d) a juror or prospective juror in federal court; and
(e) a participant in any program or activity receiving Federal financial assistance.

Prohibits willful injury, intimidation, or interference or attempt to do so, by force or threat of force of any
person because of race, color, religion, or national origin and because of his/her activity as:

(a) A student or applicant for admission to any public school or public college;
(b) a participant in any benefit, service, privilege, program, facility, or activity provided or administered by
a state or local government;
Chapter eight: Civil liability for police misconduct 133

(c) an applicant for private or state employment, private or state employee; a member or applicant for mem-
bership in any labor organization or hiring hall; or an applicant for employment through any employ-
ment agency, labor organization or hiring hall;
(d) a juror or prospective juror in state court;
(e) a traveler or user of any facility of interstate commerce or common carrier; or
(f) a patron of any public accommodation, including hotels, motels, restaurants, lunchrooms, bars, gas sta-
tions, theaters...or any other establishment which serves the public and which is principally engaged in
selling food or beverages for consumption on the premises.

Prohibits interference by force or threat of force against any person because he/she is or has been, or in
order to intimidate such person or any other person or class of persons from participating or affording others
the opportunity or protection to so participate, or lawfully aiding or encouraging other persons to participate
in any of the benefits or activities listed in items (1) and (2), above without discrimination as to race, color,
religion, or national origin.

TITLE 18, U.S.C., SECTION 247 - CHURCH ARSON PREVENTION ACT OF 1996
Prohibits (1) intentional defacement, damage, or destruction of any religious real property, because of the
religious, racial, or ethnic characteristics of that property, or (2) intentional obstruction by force or threat
of force, or attempts to obstruct any person in the enjoyment of that person’s free exercise of religious
beliefs. If the intent of the crime is motivated for reasons of religious animosity, it must be proven that the
religious real property has a sufficient connection with interstate or foreign commerce. However, if the
intent of the crime is racially motivated, there is no requirement to satisfy the interstate or foreign com-
merce clause.

TITLE 18, U.S.C., SECTION 248 - FREEDOM OF ACCESS TO CLINIC ENTRANCES (FACE) ACT
This statute prohibits (1) the use of force or threat of force or physical obstruction, to intentionally injure,
intimidate or interfere with or attempt to injure, intimidate or interfere with any person or any class
of persons from obtaining or providing reproductive health services; (2) the use of force or threat of
force or physical obstruction to intentionally injure, intimidate, or interfere with or attempt to injure,
intimidate, or interfere with any person lawfully exercising or seeking to exercise the First Amendment
right of religious freedom at a place of religious worship; or (3) intentionally damages or destroys the
property of a facility, or attempts to do so, because such facility provides reproductive health services
or intentionally damages or destroys the property of a place of religious worship. This statute does not
apply to speech or expressive conduct protected by the First Amendment. Non obstructive demonstra-
tions are legal.

TITLE 18, U.S.C., SECTION 844(H) - FEDERAL EXPLOSIVES CONTROL STATUTE

Whoever (1) uses fire or an explosive to commit any felony which may be prosecuted in a court of the United
States, or (2) carries an explosive during the commission of any felony which may be prosecuted in a court of
the United States, including a felony which provides for an enhanced punishment if committed by the use
of a deadly or dangerous weapon or device shall, in addition to the punishment provided for such felony, be
sentenced to imprisonment for five years but not more than 15 years. In the case of a second or subsequent
conviction under this subsection, such persons shall be sentenced to imprisonment for ten years but not more
than 25 years.

TITLE 42, U.S.C., SECTION 3631 - CRIMINAL INTERFERENCE WITH RIGHT TO FAIR HOUSING
This statute also makes it unlawful by the use of force or threatened use of force, to injure, intimidate, or
interfere with any person who is assisting an individual or class of persons in the exercise of their housing
rights.
This statute makes it unlawful for any individual(s), by the use of force or threatened use of force, to
injure, intimidate, or interfere with (or attempt to injure, intimidate, or interfere with), any person’s housing
134 Police Misconduct: A Global Perspective

rights because of that person’s race, color, religion, sex, handicap, familial status or national origin. Among
those housing rights enumerated in the statute are:

The sale, purchase, or renting of a dwelling;

the occupation of a dwelling;
the financing of a dwelling;
contracting or negotiating for any of the rights enumerated above.
applying for or participating in any service, organization, or facility relating to the sale or rental of dwellings.

TITLE 42, U.S.C., SECTION 14141 - PATTERN AND PRACTICE

This civil statute was a provision within the Crime Control Act of 1994 and makes it unlawful for any gov-
ernmental authority, or agent thereof, or any person acting on behalf of a governmental authority, to engage
in a pattern or practice of conduct by law enforcement officers or by officials or employees of any governmen-
tal agency with responsibility for the administration of juvenile justice or the incarceration of juveniles that
deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the
United States.
Whenever the Attorney General has reasonable cause to believe that a violation has occurred, the Attorney
General, for or in the name of the United States, may in a civil action obtain appropriate equitable and declara-
tory relief to eliminate the pattern or practice.
Types of misconduct covered include, among other things:

1. Excessive Force
2. Discriminatory Harassment
3. False Arrest
4. Coercive Sexual Conduct
5. Unlawful Stops, Searches, or Arrests

Liability of cities and For example, in the Baltimore case discussed later
in this chapter, the plaintiff contended that the city had
police departments failed to train the plaintiff in the following three areas of
While an individual officer may be held liable for the law enforcement: (1) How to use a flashlight as a defen-
excessive use of force, a city or police department may sive weapon, (2) the level of force appropriate to use, and
generally be held liable only when it is established that (3) how to deal with intoxicated individuals.
the city or department either failed to properly hire,
train, or supervise the officer. A breach of the duty to
supervise by a city is cognizable law only when, dur-
Summary judgment
ing the course of employment, the employer becomes In most cases where the victim sues the officer, the police
aware, or should have become aware, of problems with force, or the municipality, the defendant (officer, police
an employee that indicates his or her unfitness, and the department, or city) will file a motion for summary judg-
employer fails to take further actions such as investiga- ment. Rule 56(a) of the Federal Rules of Civil Procedure
tion, discharge, or reassignment. states that a party may move for summary judgment,
Regarding a claim of negligent training, the identifying each claim or defense—or the part of each
Eleventh Circuit, in Lewis v. City of St. Petersburg,* set out claim or defense—on which summary judgment is
the two-step showing that is required for such a claim sought. The court shall grant summary judgment if the
to succeed. Thus, the plaintiff must demonstrate: movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as
• A failure to exercise a duty of care causing an a matter of law. The court should state on the record the
injury, and, if that is shown reasons for granting or denying the motion.
• Establish that the training program did not involve Generally, in a motion for summary judgment, the
a discretionary function defendant (officer) is claiming that even if all the facts
in the plaintiff’s cause of action are true, the plaintiff
is not entitled to a judgment. For example, if a plaintiff
* Lewis v. City of St. Petersburg, 260 F3rd 1260 (11th Cir. 2004). files a civil action against a police officer claiming the
Chapter eight: Civil liability for police misconduct 135

excessive use of force, but fails to allege any injuries as civil court for actions that fall short of violating a clearly
the result of this excessive force, a federal district court established statutory or constitutional right. As noted
would probably grant the officer summary judgment in Pearson v. Callahan, qualified-immunity balances
because a requirement to recover for the excessive use of two important issues—the need to hold public officials
force is that the plaintiff (victim) was injured. In another accountable when they are irresponsible in the exercise
example, if an injured victim files suit for excessive force of their official powers and the need to shield those offi-
and includes the city as one of the defendants but fails cials from harassment, distraction, and liability when
to allege that the city was neglectful in the hiring, train- they perform their duties in a reasonable manner.†
ing, or supervision of the officer, the city could probably Accordingly, the law is clearly established that a police
get the case dismissed as to the city, because these three officer is entitled to qualified immunity if there is no
requirements were not alleged. constitutional or statutory violation.
At one time, qualified or “good-faith” immunity
included both an objective and a subjective aspect. The
Immunity U.S. Supreme Court noted that the subjective aspect
Absolute immunity involved determining whether the government actor in
question took his “action with the malicious intention
There are, basically, two types of immunity: absolute to cause a deprivation of constitutional rights or other
and qualified. A person has absolute protection for injury.”‡ This subjective determination would typically
civil law suits in the areas where he or she has abso- require discovery and testimony to establish whether
lute immunity. For example, a trial judge has absolute malicious intention was present. Having to go through
immunity when he or she is exercising the judicial the costly process of discovery and trial, however, con-
duties of a judge. Absolute immunity is extended to leg- flicted with the goal of qualified immunity to allow for
islators in their legislative functions, executive officers the dismissal of insubstantial lawsuits without trial.
engaged in adjudicative functions, and the president of Because of this dilemma, the Supreme Court altered
the United States. The rationale for the grant of absolute the test to determine whether qualified immunity was
immunity is that certain officials, such as trial judges, appropriate. The new test, as stated earlier, is that “gov-
need the extra protection. Former U.S. Supreme Court ernment officials performing discretionary functions
justice Louis Powell noted: generally are shielded from liability for civil damages
insofar as their conduct does not violate clearly estab-
Our decisions have recognized immunity lished statutory or constitutional rights of which a rea-
defenses of two kinds. For officials whose spe- sonable person would have known.” By applying the
cial functions or constitutional status requires reasonable person standard, the Supreme Court estab-
complete protection from suit, we have rec- lished, for the first time, a purely objective standard to
ognized the defense of “absolute immunity.” determine whether granting a government official qual-
The absolute immunity of legislators, in ified immunity was appropriate.1
their legislative functions, and of judges, in
their judicial functions, now is well settled.
Our decisions also have extended absolute Saucier v. Katz
immunity to certain officials of the Executive Katz, president of In Defense of Animals, filed a civil
Branch. These include prosecutors and simi- rights suit against Saucier, a military policeman. Katz
lar officials, executive officers engaged in alleged that Saucier violated his Fourth Amendment
adjudicative functions, and the President of rights by using excessive force in arresting him.§ At
the United States. For executive officials in the time, Katz was protesting during a speech by Vice
general, however, our cases make plain that President Gore’s speech in San Francisco. The Supreme
qualified immunity represents the norm. We Court noted that claims of excessive force in the con-
have acknowledged that high officials require text of arrests or investigatory stops should be analyzed
greater protection than those with less com- under the Fourth Amendment’s “objective reasonable-
plex discretionary responsibilities.* ness standard,” not under substantive due process
principle.
Qualified immunity The court noted that one concern of the immunity
inquiry is to acknowledge that reasonable mistakes
Qualified immunity is immunity that shields public
officials, including police officers, from being sued in
† Pearson v. Callahan, 555 U.S. 223 (2009).
‡ Wood v. Strickland, 420 U.S. 308, 322 (1975).
* Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). § Saucier v. Katz et al., 533 U.S. 194 (2001).
136 Police Misconduct: A Global Perspective

can be made as to the legal constraints on particular conduct does not clearly violate established statutory or
police conduct. It is sometimes difficult for an officer to constitutional rights of which a reasonable person would
determine how the relevant legal doctrine, here exces- have known. To receive qualified-immunity protection,
sive force, will apply to the factual situation the officer the government official must first establish that he was
confronts. An officer might correctly perceive all of the acting within his discretionary authority at the time of
relevant facts but have a mistaken understanding as to the alleged violation. Once that is shown, the plaintiff
whether a particular amount of force is legal in those (victim) bears the burden of proving (1) that the official
circumstances. If the officer’s mistake as to what the law violated a constitutional right and (2) that the right was
requires is reasonable, however, the officer is entitled to clearly established at the time the official acted.
the immunity defense. In the Wynn case, the officer’s claim of qualified
The Supreme Court ruled that the first inquiry into immunity was based on his version of the confronta-
a request for qualified immunity must be whether a con- tion, in which he struck the plaintiff in the face with
stitutional right would have been violated on the facts his flashlight because the officer reasonably believed
alleged; only if the answer to the first inquiry is affirma- the plaintiff (arrestee) reached for the officer’s Taser. If
tive does the question of whether the right was clearly this were not a qualified-immunity case, the (arrestee’s)
established at the time of the alleged violation have to be contrary showing would seemingly create a genuine
answered. The Supreme Court also disagreed with the dispute of fact. However, “in qualified immunity cases,
Ninth Circuit’s rationale that only a jury could decide a ‘material issue of fact’ never exists.” In other words,
whether the force used in this instance was excessive, the officer cannot base his claim of qualified immunity,
making its two-step approach workable even in exces- as he attempts to do, on his version of how the events
sive force claims. unfolded. The plaintiff’s “best case” indicates a differ-
The Supreme Court held that judges of the district ent scenario.
courts and the courts of appeals should be permitted A witness testified that, while he did not see the
“to exercise their sound discretion in deciding which plaintiff’s hands, the plaintiff was only stumbling
of the two prongs of the qualified-immunity analysis and falling forward in the direction of the officer.
should be addressed first in light of the circumstances Importantly, another witness testified that the plaintiff
in the particular case at hand.” Not surprisingly, in the had his arms at his sides and stumbled forward at the
case before them, the court found the issue of qualified moment of the strike. Consequently, the plaintiff’s evi-
immunity easier to determine based on whether any dence shows that the plaintiff, whose arms were at his
violation (if one occurred at all) was of a clearly estab- side, was not reaching for the Taser located on the offi-
lished right. Here, the court found that at the time of the cer’s person.
officers’ actions, it was not clearly established that those Moreover, at that point, the plaintiff was not under
actions were unlawful. arrest, and an officer had indicated that the plaintiff was
free to leave. Under these circumstances, a jury could
reasonably find that Officer Taylor used excessive force
Wynn v. City of Lakeland
in striking the plaintiff in the head with a flashlight.
In any action against a city, police department, or law In Baltimore v. City of Albany, Georgia, the Eleventh
enforcement officer, the aggrieved citizen needs to over- Circuit Court of Appeals rejected a claim of qualified
come the qualified immunity that these parties may immunity by a police officer who struck an arrestee in
have. For example, in Wynn v. City of Lakeland, the defen- the head with a flashlight. Significantly, that claim was
dants (city, police department, and individual officers) complicated by the fact that the strike occurred in a cha-
moved for summary judgment claiming that the offi- otic situation in the face of a hostile crowd.† In that case,
cers had qualified immunity in performing their offi- the police–citizen encounter occurred on the evening
cial duties. The court stated: “Viewing the evidence in of June 24, 2000. Arrid Baltimore (“Baltimore”) and his
the light most favorable to arrestee, police officer used brother, Saran Baltimore, met at Saran’s home around
excessive force when he struck arrestee in the face with 7:00 p.m. to watch the Mike Tyson–Lou Savarese box-
a flashlight, breaking three bones in his face, and thus, ing match. When the fight was over, they left in separate
officer was not entitled to qualified immunity on arrest- cars to attend an “after-party” at a local club, Charlie
ee’s §1983 claim against him, alleging use of excessive and Diane’s Lounge. On the way to the club, Baltimore
force in violation of Fourth Amendment.”* stopped at a convenience store and bought a quart bottle
In the Wynn case, the court noted that qualified of grapefruit juice. He arrived at the club shortly after
immunity offers complete protection for government his brother got there, and parked down the street. It was
officials sued in their individual capacities if their close to 11:00 p.m.

* Wynn v. City of Lakeland, 727 Fed Supp. 2nd. 1309 (MD, Fla. 2010). † Baltimore v. City of Albany, Ga. 183 Fed. Approx. 891 (2006).
Chapter eight: Civil liability for police misconduct 137

As Baltimore walked toward the club, he saw a in light of the specific context of the case” at the time of
crowd, which included several of his acquaintances, the events in question.*
standing in the front yard of a house adjacent to the
club. He heard someone suddenly yell that the police
Messerschmidt v. Millende
were coming. Cpl. Joseph Rizer and his riding partner,
Officer Ire Hornsby, who were on patrol, saw the crowd, In Messerschmidt v. Millende,† one Shelly Kelly was afraid
which appeared to be unruly, shouting and cursing, and that she would be attacked by her boyfriend Jerry Bowen
stopped to investigate. Before exiting their patrol car, when she moved out of his apartment. She requested
they called for backup due to the size of the crowd. As police assistance. Two officers arrived, but were called
Cpl. Rizer approached the gathering, he saw Baltimore away to an emergency. When the officers left, Bowen
carrying the bottle of grapefruit juice and thought he showed up with a sawed-off shotgun. Kelly ran away
might be violating the City of Albany’s open container and, as she was leaving in her car, Bowen fired five shots
law. Rizer drew next to Baltimore to explain the open into the car. Kelly was unhurt. She met with Detective
container law, and as he did, the crowd grew closer Messerschmidt to discuss the incident. She mentioned
and began to turn hostile. So, Rizer decided to remove that Bowen was a member of the Mona Park Crips Gang.
Baltimore to his patrol car. By this time, the backup, After meeting with Kelly, Messerschmidt conducted
Cpl. Richard Vanstone and Officer Andrew Long, had a detailed investigation of Bowen. The officer noticed
arrived and parked next to Rizer’s patrol car. Baltimore that Bowen had been arrested numerous times. The offi-
told Rizer that the bottle he was carrying did not con- cer prepared affidavits to search Bowen’s stepmother’s
tain alcohol, but Rizer was not convinced. Holding home, where it was believed that Bowen was living, for
Baltimore’s left wrist, he reached for his handcuffs; all weapons that would indicate gang membership. The
Baltimore resisted and a struggle ensued. home was searched, and only the stepmother’s shotgun
Rizer had Baltimore in a choke hold, and when and a box of ammunition was uncovered.
it appeared that Baltimore would break free, Cpl. The stepmother filled a civil rights action against
Vanstone struck him on the left shoulder with his flash- the detective, claiming that the warrant was too broad.
light. Meanwhile, several men in the crowd, including The trial court agreed that the warrant was too broad.
Saran Baltimore and Eric Green, got involved and went The detective defended on the grounds of qualified
at the officers. During the ensuing melee, Officer Long immunity.
approached Baltimore from the rear and struck him The Supreme Court held that qualified immunity
on the back of the head with his flashlight. The blow “protects government officials from liability for civil
brought Baltimore to his knees, and he was handcuffed. damages insofar as their conduct does not violate clearly
Baltimore (arrestee) suffered a serious wound established statutory or constitutional rights of which
when he was hit with the flashlight. The district court a reasonable person would have known”. Where the
concluded that Cpl. Rizer acted properly in stopping alleged Fourth Amendment violation involves a search
Baltimore to determine whether he was violating or seizure pursuant to a warrant, the fact that a neutral
Albany’s open container ordinance, and that Baltimore’s magistrate has issued a warrant is the clearest indica-
conviction for disorderly conduct foreclosed Baltimore’s tion that the officers acted in an objectively reasonable
§1983 claims for false arrest and malicious prosecu- manner, or in “objective good faith.” Nonetheless, that
tion. The case boiled down then to whether striking fact does not end the inquiry into objective reasonable-
Baltimore on the head with a flashlight constituted ness. The court has recognized an exception, allowing
excessive force, and whether the officers were entitled to suit when it is obvious that no reasonably competent
qualified immunity regarding that act. The court con- officer would have concluded that a warrant should be
cluded that the striking violated the Constitution, but issued. The shield of immunity otherwise conferred by
that the officers—with the exception of Rizer, Singleton, the warrant will be lost where, for example, the war-
and Long—were entitled to qualified immunity and rant was based on an affidavit so lacking in indicia of
summary judgment. The appellate court held that Rizer probable cause as to render official belief in its exis-
and Singleton were entitled to qualified immunity, but tence entirely unreasonable. The threshold for estab-
that Officer Long, who had hit Baltimore in the head lishing this exception is high. In the ordinary case, an
with a flashlight, was not. officer cannot be expected to question the magistrate’s
In determining whether an officer is entitled to probable-cause determination because it is the magis-
qualified immunity, one court employed a two-step trate’s responsibility to determine whether the officer’s
test: first, the court decides whether the officer violated allegations establish probable cause and, if so, to issue a
a plaintiff’s constitutional right; if the answer to that
inquiry is “yes,” then the court proceeds to determine * Mattos v. Agarano, 661 F. 3rd. 433 (9th Cir. 2011).
whether the constitutional right was “clearly established † Messerschmidt v. Millende, 132 S.Ct. 1235 (2012).
138 Police Misconduct: A Global Perspective

warrant comporting in form with the requirements of some form of immunity.* The Supreme Court noted that
the Fourth Amendment. there are government officials whose special functions
This case does not fall within that narrow excep- or constitutional status requires complete protection
tion. It would not be entirely unreasonable for an officer from suits for damages—including certain officials of
to believe that there was probable cause to search for the executive branch, such as prosecutors and similar
all firearms and firearm-related materials. Under the officials. However, executive officials in general are
circumstances set forth in the warrant, an officer could usually only entitled to qualified or good-faith immu-
reasonably conclude that there was a “fair probability” nity. The recognition of a qualified-immunity defense
that the sawed-off shotgun was not the only firearm reflects an attempt to balance competing values: not
Bowen owned, and that Bowen’s sawed-off shotgun was only the importance of a damages remedy to protect the
illegal. Given Bowen’s possession of one illegal gun, his rights of citizens, but also the need to protect officials
gang membership, willingness to use the gun to kill who are required to exercise discretion, and the related
someone, and concern about the police, it would not public interest in encouraging the vigorous exercise of
be unreasonable for an officer to conclude that Bowen official authority.
owned other illegal guns. An officer also could reason- The court held that to establish a defense of good-
ably believe that seizure of firearms was necessary to faith immunity, a government official must prove both
prevent further assaults on Kelly. objective and subjective elements. The official must not
California law allows a magistrate to issue a search have actually known and also should not have been able
warrant for items in the possession of any person with to know that his actions were illegal. Accordingly, many
the intent to use them as a means of committing a public claims will be resolved on summary judgment, and offi-
offense, and the warrant application submitted by the cials will have the freedom to use their discretion in car-
officers specifically referenced this provision as a basis rying out their tasks.
for the search. The resolution of immunity questions inherently
Regarding the warrant’s authorization to search requires a balance between the evils inevitable in any
for gang-related materials, a reasonable officer could available alternative. In situations of abuse of office, an
view Bowen’s attack as motivated not by the souring of action for damages may offer the only realistic avenue
his romantic relationship with Kelly but by a desire to for vindication of constitutional guarantees. The court
prevent her from disclosing details of his gang activity noted that, in the Bivens case, it was damages or nothing.
to the police. It would therefore not be unreasonable— It is this recognition that has required the denial of abso-
based on the facts set out in the affidavit—for an officer to lute immunity to most public officers. At the same time,
believe that evidence of Bowen’s gang affiliation would however, it cannot be seriously disputed that claims fre-
prove helpful in prosecuting him for the attack on Kelly, quently run against the innocent, as well as the guilty—
in supporting additional, related charges against Bowen at a cost not only to the defendant officials, but to society
for the assault, or in impeaching Bowen or rebutting his as a whole. These social costs include the expenses of
defenses. Moreover, even if this were merely a domes- litigation, the diversion of official energy from pressing
tic dispute, a reasonable officer could still conclude that public issues, and the deterrence of able citizens from
gang paraphernalia found at the residence could dem- acceptance of public office. Finally, there is the danger
onstrate Bowen’s control over the premises or his con- that fear of being sued will dampen the ardor of all but
nection to other evidence found there. the most resolute or the most irresponsible public offi-
The fact that the officers sought and obtained cials in the unflinching discharge of their duties.
approval of the warrant application from a superior
and a deputy district attorney before submitting it to
Affirmative defense
the magistrate provides further support for the conclu-
sion that an officer could reasonably have believed that Qualified or “good-faith” immunity is an affirmative
the scope of the warrant was supported by probable defense that must be pleaded by a defendant official
cause. A contrary conclusion would mean not only that or officer.† Decisions of the Supreme Court have estab-
Messerschmidt was plainly incompetent in concluding lished that the “good-faith” defense has both an “objec-
that the warrant was supported by probable cause, but tive” and a “subjective” aspect. The objective element
that the supervisor, the deputy district attorney, and the involves a presumptive knowledge of and respect for
magistrate were as well. “basic, unquestioned constitutional rights.”‡ The sub-
jective component refers to permissible intentions.
Rationale for immunity
* Harlow v. Fitzgerald, 457 U.S. 800 (1982).
In Harlow v. Fitzgerald, the U.S. Supreme Court discussed † Gomez v. Toledo, 446 U.S. 635 (1980).

the need for government officials and employees to have ‡ Wood v. Strickland, 420 U.S. 308, 322 (1975).
Chapter eight: Civil liability for police misconduct 139

Characteristically, the court has defined these elements still in his pockets. The officer again instructed Smith to
by identifying the circumstances in which qualified show his hands. Smith complied with this instruction,
immunity would not be available. Referring both to the but then refused to follow an order to “put his hands on
objective and subjective elements, the court held that his head and walk towards the officer’s voice.” Instead,
qualified immunity would be defeated if an official Smith again asked officer to approach and enter the
knew or reasonably should have known that the action home with him.
he took within his sphere of official responsibility would A second officer arrived in response to Officer
violate the constitutional rights of the plaintiff, or if he Reinbolt’s radioed request for assistance. Observing
took the action with the malicious intention to cause a Smith’s refusal to cooperate with Officer Reinbolt, the
deprivation of constitutional rights or other injury. second officer contacted dispatch to request additional
assistance, including a canine unit. Officer Quinn, a
canine handler with the department, arrived shortly
Victim’s conduct thereafter with “Quando,” a police canine. Officer
In many cases, the officer had probable cause to stop a Medina also responded to one of the assistance calls.
victim and after a legal stop abused his or her authority Officer Quinn instructed Smith to turn around
by using excessive force. In Smith v. City of Hemet, the and place his hands on his head. Smith again refused
appellate court held that an arrestee’s conviction on his to obey the order, despite being informed that Quando
guilty plea to resisting, delaying or obstructing a peace could be sent to subdue him and might bite. Without
officer did not preclude him suing the officer for exces- further warning, Officer Quinn sprayed Smith in the
sive use of force under a §1983 action.* face with pepper spray. Smith responded with exple-
Excessive force used after a defendant has been tives and attempted to reenter his residence, but the
arrested may properly be the subject of a §1983 action, door had been locked by Mrs. Smith. Several more offi-
notwithstanding the defendant’s conviction on a charge cers then moved onto the porch, grabbed Smith from
of resisting an arrest that was itself lawfully conducted. behind, slammed him against the door, and threw him
All claims that law enforcement officers have used down on the porch; Officer Quinn ordered the canine
excessive force, deadly or otherwise, in the course of an to attack him. Quando bit Smith on his right shoulder
arrest must be analyzed under the Fourth Amendment and neck area. At some point, either before or after the
and its “reasonableness” standard. order to attack, the dog sank his teeth into Smith’s arm
In analyzing excessive force claims arising before or and clung to it.
during arrest under the Fourth Amendment’s reason- With at least four officers surrounding him and
ableness standard, the question is not simply whether Quando’s teeth sunk into his shoulder and neck, Smith
the force was necessary to accomplish a legitimate police agreed to comply with the officers’ orders and submit
objective; it is whether the force used was reasonable in to arrest. Although Smith submitted, he admits that
light of all the relevant circumstances. he was “curled up” in a fetal position in an attempt to
In the Smith case, Smith’s wife placed an emergency shield himself from the dog and that one of his hands
phone call to the Hemet Police Department reporting was “tucked in somewhere,” still out of the officers’
that her husband “was hitting her and/or was physi- view.
cal with her.” Mrs. Smith informed emergency person- As one of the officers attempted to secure both arms,
nel that her husband did not have a gun, there were no Quando was instructed by Officer Quinn to bite Smith a
weapons in the house, and he was clad in his pajamas. second time; this time the dog bit Smith on his left side
Officer Reinbolt was the first officer to arrive at the and shoulder blade. On Officer Quinn’s order, Quando
house to investigate the incident. He observed Smith ultimately retreated, and the officers dragged Smith off
standing on his front porch and “noticed Smith’s hands the porch, face down. Once off the porch, Smith con-
in his pockets.” The officer announced himself and tinued to shield one of his arms from the dog’s attack.
instructed Smith to remove his hands from his pockets. Officer Quinn then ordered Quando to bite Smith a
Smith refused, responding with expletives and direct- third time. This time, the dog bit into Smith’s buttock.
ing the officer to come to him. The officer then informed While all this was transpiring, Smith was pepper-
Smith that he would approach, but only after Smith sprayed at least four times, at least two of which spray-
removed his hands from his pockets and showed that ings occurred after the police dog had seized him and
he had no weapons. Smith again refused to remove his broken his skin, and at least one after the officers had
hands from his pockets and instead entered his home. pinned him to the ground.
After the officer advised dispatch of what had trans- Eventually, the officers secured the handcuffs on
pired, Smith reemerged onto the porch with his hands both of Smith’s arms. Officer Reinbolt then washed
Smith’s eyes out with water from a nearby hose, but did
* In Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005). not cleanse the wounds he received as a result of the
140 Police Misconduct: A Global Perspective

dog bites. Paramedics arrived shortly thereafter and It did not, however, render their preceding investiga-
attended to Smith’s injuries. tion unlawful, nor would it invalidate a conviction for
Smith pled guilty in California Superior Court to a obstructing that investigation.
violation of California Penal Code §148(a)(1).2. Section The appellate court explained that a §1983 action
148(a)(1) provides: “Every person who willfully resists, was not barred. Smith’s success in that action would
delays, or obstructs any … peace officer … in the dis- not necessarily impugn his conviction. Accordingly, the
charge or attempt to discharge any duty of his or her defendants were not entitled to summary judgment on
office or employment, … shall be guilty of a misde- the basis.
meanor.” Smith was sentenced to 36 months’ probation. Smith alleged that after the officers came onto the
Smith filed a complaint under 42 U.S.C. §1983 in the porch they used both excessive force, generally, and
district court, alleging that the officers used excessive deadly force, specifically, against him in contravention
force when they sprayed him with pepper spray and of the Fourth Amendment. Defendants, in contrast,
sicced the police canine on him. The defendants moved urged that the force used was at all times reasonable
for summary judgment on several grounds, including and that the court should therefore affirm the district
that the challenged use of force—the pepper spray and court’s summary judgment order on this alternative
police dog—was appropriate and reasonable under the ground.
circumstances. The district court granted summary Although the appellate court noted that a Fourth
judgment on the basis that Smith’s conviction for resist- Amendment claim of excessive force is analyzed
ing arrest barred Smith’s §1983 action. Judgment for the under the framework outlined by the Supreme Court
defendants was entered, and Smith filed an appeal. in Graham v. Connor,* all claims that law enforcement
The appellate court held Smith would be allowed officers have used excessive force—deadly or other-
to bring a §1983 action, however, if the use of excessive wise—in the course of an arrest must be analyzed
force occurred subsequent to the conduct on which under the Fourth Amendment and its “reasonable-
his conviction was based. Specifically, Smith would ness” standard.
be entitled to proceed if his conviction were based on It is clear that, under Graham, excessive force claims
unlawful behavior that took place while he stood alone arising before or during arrest are to be analyzed exclu-
and untouched on his porch—that is, if his unlawful sively under the Fourth Amendment’s reasonableness
conduct occurred while the officers were attempting to standard. That analysis requires balancing the “nature
investigate his wife’s complaint. In such case, a judg- and quality of the intrusion” on a person’s liberty with
ment in Smith’s favor would not necessarily conflict the “countervailing governmental interests at stake” to
with his conviction, because his acts of resistance, delay, determine whether the use of force was objectively rea-
or obstruction would have occurred while the officers sonable under the circumstances. The Supreme Court
were engaged in the lawful performance of their inves- has said that the reasonableness inquiry in an excessive
tigative duties, not while they were engaged in effecting force case is an objective one: The question is whether
an arrest by the use of excessive force. the officers’ actions are objectively reasonable in light
The appellate court noted that defendants’ argu- of the facts and circumstances confronting them. The
ment wrongly focused on Smith’s conduct rather than question is not simply whether the force was necessary
that of the officers. There were two different phases of to accomplish a legitimate police objective; it is whether
the officers’ conduct here—first, the investigative phase; the force used was reasonable in light of all the relevant
then, when Smith repeatedly refused to cooperate, the circumstances.
arrest for violating §148(a)(1) and for the underlying
offense that otherwise might or might not have led to
More-specific-provision rule
an arrest.
The officers’ allegedly unlawful conduct, which The “more-specific-provision” rule of Graham v. Connor
transpired after they decided to use physical force to requires that if a constitutional claim is covered by a
subdue Smith, occurred during the second phase of specific constitutional provision, the claim must be ana-
their law enforcement activities, during the course lyzed under the standard appropriate to that specific
of their effort to take Smith into custody. Prior to that provision, not under substantive due process.† In the
time, during the investigative phase, they had issued case of County of Sacramento v. Lewis,‡ a county sheriff’s
only verbal commands, all of which were concededly deputy (Smith) responded to a call along with another
well within the bounds of their general police powers. officer and observed a motorcycle approaching at high
Smith’s obstruction of that investigation came to an end
when the officers decided to arrest him. Thereafter, in
* Graham v. Connor, 490 U.S. 386 (1989).
the course of the arrest, they allegedly engaged in the † 490 U.S. 386, 395.

use of excessive force that rendered the arrest unlawful. ‡ 523 U.S. 833 (1998).
Chapter eight: Civil liability for police misconduct 141

speed with a passenger. The second officer turned on place here. No one suggests that there was a search, and
his rotating lights and pulled his patrol car closer to first the cases foreclose finding a seizure. The court noted
officer’s vehicle. The motorcycle rider, Willard, maneu- that a police pursuit in attempting to seize a person
vered between the two patrol cars and sped off. The does not amount to a “seizure” within the meaning
officers immediately switched on the emergency lights of the Fourth Amendment. The court explained that a
and began a high-speed chase. The chase ended after Fourth Amendment seizure does not occur whenever
the cycle tipped over. One officer’s vehicle skidded into there is a governmentally caused termination of an
the passenger and killed him. individual’s freedom of movement (the innocent pass-
The passenger’s parents brought the action under erby), nor even whenever there is a governmentally
42 U.S.C. §1983, alleging a deprivation of Lewis’s caused and governmentally desired termination of an
Fourteenth Amendment substantive due process right individual’s freedom of movement (the fleeing felon),
to life. The district court granted summary judgment but only when there is a governmental termination of
for Smith, but the Ninth Circuit reversed, holding, inter freedom of movement through means intentionally
alia, that the appropriate degree of fault for substantive applied. The court illustrated the point by saying that
due process liability for high-speed police pursuits is no Fourth Amendment seizure would take place where
deliberate indifference to, or reckless disregard for, a a pursuing police car sought to stop the suspect only
person’s right to life and personal security. by the show of authority represented by flashing lights
Justice Souter, writing for the court’s majority, stated and continuing pursuit, but accidentally stopped the
that issue in this case is whether a police officer violates suspect by crashing into him.
the Fourteenth Amendment’s guarantee of substan- Graham’s more-specific-provision rule is therefore
tive due process by causing death through deliberate no bar to respondents’ suit. The court noted that par-
or reckless indifference to life in a high-speed automo- ents of a motorcyclist who was struck and killed by a
bile chase aimed at apprehending a suspected offender. police car during a high-speed pursuit could sue under
The court said no, and held that, in such circumstances, substantive due process because no Fourth Amendment
only a purpose to cause harm unrelated to the legiti- seizure took place.
mate object of arrest will satisfy the element of arbitrary
conduct shocking to the conscience, necessary for a due
process violation. Summary
The court noted that the chase ended after the motor- • In the majority of cases where the police, city, and
cycle tipped over as Willard tried a sharp left turn. By so on are sued for violation of a civil rights in fed-
the time the officer slammed on his brakes, Willard was eral court, the suit is filed pursuant to Civil Rights
out of the way, but passenger Lewis was not. The patrol Act, 42 U.S. Code §1983.
car skidded into him at 40 miles an hour, propelling him • The Supreme Court noted that its cases make clear
some 70 feet down the road and inflicting massive inju- that the Fourth Amendment operates as a limita-
ries. Lewis was pronounced dead at the scene. tion on the exercise of federal power, regardless of
The court noted that Officer Smith was faced with whether the state in whose jurisdiction that power
a course of lawless behavior for which the police were is exercised would prohibit or penalize the identi-
not to blame. They had done nothing to cause Willard’s cal act if engaged in by a private citizen.
high-speed driving in the first place, nothing to excuse • The court pointed out that interests protected by
his flouting of the commonly understood law enforce- state laws regulating trespass and the invasion
ment authority to control traffic, and nothing (beyond of privacy, and those protected by the Fourth
a refusal to call off the chase) to encourage him to Amendment’s guarantee against unreasonable
race through traffic at breakneck speed, forcing other searches and seizures, may be inconsistent or even
drivers out of their travel lanes. Willard’s outrageous hostile.
behavior was practically instantaneous, and so was • Historically, damages have been regarded as the
Smith’s instinctive response. While prudence would ordinary remedy for an invasion of personal inter-
have repressed the reaction, the officer’s instinct was to ests in liberty.
do his job as a law enforcement officer, not to induce • Frequently, state officers may be sued under §1983
Willard’s lawlessness, or to terrorize, cause harm, or kill. in federal court for violations of state tort laws.
Prudence, that is, was subject to countervailing enforce- Generally, the actions are based on allegations of
ment considerations, and while Smith exaggerated their negligence.
demands, there is no reason to believe that they were • Police officers and other governmental officials
tainted by an improper or malicious motive on his part. have been given power over citizens by local, state,
The court noted that the Fourth Amendment cov- and federal government agencies. This is neces-
ers only “searches and seizures,” neither of which took sary to enforce laws and ensure justice.
142 Police Misconduct: A Global Perspective

• The powers include the authority to detain, arrest, • Decisions of the Supreme Court have established
search persons and property, and to seize prop- that the “good-faith” defense has both an “objec-
erty or persons. To prevent abuse of this authority, tive” and a “subjective” aspect. The objective ele-
it is a federal crime for anyone acting under “color ment involves a presumptive knowledge of and
of law” to abuse that authority. respect for “basic, unquestioned constitutional
• On the federal level, it is the FBI that is the lead rights.”
authority to investigate possible color-of-law • Excessive force used after a defendant has been
abuses. In a normal year, about 42% of the FBI’s arrested may properly be the subject of a §1983
total civil rights caseload involves the issue of action, notwithstanding the defendant’s convic-
abuse of authority under color of law. tion on a charge of resisting an arrest that was
• To file a color-of-law complaint, one should contact itself lawfully conducted.
one’s local FBI office by telephone, in writing, or
in person.
• One may also contact the U.S. Attorney’s office Practicum
in one’s district or send a written complaint to In March 2001, a Georgia county deputy clocked
Assistant Attorney General, Civil Rights Division. respondent’s vehicle traveling at 73 miles per hour on
• FBI investigations vary in length. Once their a road with a 55 miles per hour speed limit. The dep-
investigation is complete, the FBI should forward uty activated his blue flashing lights, indicating that
the findings to the U.S. Attorney’s office within respondent should pull over. Instead, respondent sped
the local jurisdiction and to the U.S. Department away, initiating a chase down what is in most portions
of Justice in Washington, D.C., which will decide a two-lane road at speeds exceeding 85 miles per hour.
whether or not to proceed toward prosecution and The deputy radioed his dispatch to report that he was
handle any prosecutions that follow. pursuing a fleeing vehicle, and broadcast its license
• While an individual officer may be held liable for plate number. Petitioner, Deputy Timothy Scott, heard
the excessive use of force, a city or police depart- the radio communication and joined the pursuit along
ment may generally be held liable only when it is with other officers. In the midst of the chase, respon-
established that the city or department either failed dent pulled into the parking lot of a shopping center
to properly hire, train, or supervise the officer. and was nearly boxed in by the various police vehi-
• A breach of the duty to supervise by a city is cogni- cles. Respondent evaded the trap by making a sharp
zable law only when, during the course of employ- turn, colliding with Scott’s police car, exiting the park-
ment, the employer becomes aware or should have ing lot, and speeding off once again down a two-lane
become aware of problems with an employee that highway.
indicates his or her unfitness, and the employer Following respondent’s shopping center maneu-
fails to take further action such as investigation, vering, which resulted in slight damage to Scott’s
discharge, or reassignment. police car, Scott took over as the lead pursuit vehi-
• In most cases where the victim sues the officer, cle. Six minutes and nearly 10 miles after the chase
the police force, or the municipality, the defen- had begun, Scott decided to attempt to terminate
dant (officer, police department, or city) will file a the episode by employing a “Precision Intervention
motion for summary judgment. Rule 56(a) of the Technique (‘PIT’) maneuver, which causes the fleeing
Federal Rules of Civil Procedure states that a party vehicle to spin to a stop.” Having radioed his supervi-
may move for summary judgment, identifying sor for permission, Scott was told to “go ahead and
each claim or defense—or the part of each claim or take him out.” Instead, Scott applied his push bumper
defense—on which summary judgment is sought. to the rear of respondent’s vehicle. As a result, respon-
• There are, basically, two types of immunity: abso- dent lost control of his vehicle, which left the roadway,
lute and qualified. A person has absolute protec- ran down an embankment, overturned, and crashed.
tion for civil law suits in the areas where he or she Respondent was badly injured and was rendered a
has absolute immunity. quadriplegic.
• Qualified immunity is immunity that shields pub- Respondent filed suit against Deputy Scott and
lic officials, including police officers, from being others under Rev. Stat. §1979, 42 U.S.C. §1983, alleg-
sued in civil court for actions that fall short of vio- ing a violation of his federal constitutional rights,
lating a clearly established statutory or constitu- namely, use of excessive force resulting in an unrea-
tional right. sonable seizure under the Fourth Amendment. In
• Qualified or “good-faith” immunity is an affirma- response, Scott filed a motion for summary judg-
tive defense that must be pleaded by a defendant ment based on an assertion of qualified immunity.
official or officer. The district court denied the motion, finding that
Chapter eight: Civil liability for police misconduct 143

“there are material issues of fact on which the issue As a Supreme Court justice, would you grant the officer
of qualified immunity turns which present sufficient immunity?
disagreement to require submission to a jury.” On See Scott v. Harris 127 S.Ct. 1769 (2007).
interlocutory appeal, the U.S. Court of Appeals for
the Eleventh Circuit affirmed the district court’s deci-
sion to allow respondent’s Fourth Amendment claim Discussion questions
against Scott to proceed to trial. Taking respondent’s 1. Explain the meaning of the term “under color of
view of the facts as given, the Court of Appeals con- law.”
cluded that Scott’s actions could constitute “deadly 2. What are the reasons for qualified immunity?
force” under Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 3. Under what circumstances may a city or
1694, 85 L.Ed.2d 1 (1985), and that the use of such force police department be held liable for an officer’s
in this context would violate respondent’s constitu- misconduct?
tional right to be free from excessive force during a 4. Why is the Bivens v. Six Unknown Named Agents
seizure. Accordingly, a reasonable jury could find case important?
that Scott violated [respondent’s] Fourth Amendment 5. How would you file a complaint against a local
rights. The Court of Appeals further concluded that officer who used excessive force?
the law, as it existed at the time of the incident, was
sufficiently clear to give reasonable law enforcement
officers fair notice that ramming a vehicle under these Reference
circumstances was unlawful. The Court of Appeals 1. Richard G. Schott (September, 2012) Qualified immu-
thus concluded that Scott was not entitled to qualified nity: How it protects law enforcement officers, FBI Law
immunity. The Supreme Court reversed. Enforcement Bulletin. 79(9).
chapter nine

Citizen review boards and external oversight

Learning objectives agencies should publish reports at least annually, pre-
senting detailed statistics and information relating
After studying this chapter, the reader should under- to complaints, trends, sustained rates for each type of
stand the following concepts and issues: complaint, disciplinary actions stemming from sus-
tained allegations, policy recommendations (as well as
• Purpose of external review boards the departmental responses to those recommendations),
• Powers and authority of external review boards and community outreach efforts. The statistics should
• How review boards differ in the United States, include breakdowns on the race and gender of the com-
Canada, and the United Kingdom plainants and officers in question. The reports should
also include examples of the types of abuse about which
the agency has received complaints during the report-
Introduction ing period.1 The HRW also contends that review boards
should be empowered and financed to conduct investi-
According to the written testimony of Rashad Robinson, gations on their own initiative.
Executive Director, Color of Change before the
President’s Task Force on 21st Century Policing, civilian
oversight of police should be expanded. In part of his National associations on
testimony he stated: civilian oversight of police
Civilian oversight: we urge the expan- The National Association for Civilian Oversight of Law
sion of strong, empowered state and local Enforcement (NACOLE) is a nonprofit organization
level civilian control over law enforcement that brings together individuals or agencies working
nationwide. There has been much research to establish or improve oversight of police officers in
done into the criteria of effective civilian the United States.2 It is the largest and most dominant
oversight boards, but general guidelines association dealing with civilian oversight of the police.
include strong political and public support, NACOLE’s mission statement states that its mission is to
police cooperation, a proactive approach to “enhance fair and professional law enforcement respon-
identify underlying systemic problems with sive to community needs.” NACOLE operates under the
police and the comprehensive legal power following goals:
to resolve said issues, as well as control over
more than police misconduct, but police hir- • To provide for the establishment, development,
ing and firing, policing priorities, and par- education, and technical assistance of/for the
ticipatory budgeting as well. We suggest that civilian oversight of law enforcement.
funding in part for the expansion of commu- • To develop a national forum to provide an infor-
nity controlled and community based polic- mational and educational clearinghouse and a
ing come from the termination of all federal publication resource of educational information
anti-drug grants.* for the public and organizations in the field of
civilian oversight of law enforcement.
• To encourage the highest ethical standards in
Functions of civilian review boards organizations which oversee law enforcement.
Probably one of the most important functions of civil- • To educate the public by developing mechanisms
ian or citizen review boards is to oversee the process- to enhance police and community relations, edu-
ing of citizens’ complaints about police misconduct. As cate law enforcement agencies, and encourage law
noted by Human Rights Watch (HRW), citizen review enforcement to respond with sensitivity to citi-
zens’ issues and complaints.
• To encourage full racial and ethnic representa-
* This section was taken from the testimony of Rashad Robinson,
before the President’s Task Force on 21st Century Policing, January
tion and participation in this organization and the
30, 2015. agencies overseen by its members.

145
146 Police Misconduct: A Global Perspective

Regular members of NACOLE are mayors, county • HM inspectors have powers to seek information
or municipal managers, or others who hold executive from police forces and to access their premises.
positions on a board, council, commission, or committee
with authority to direct, control, or oversee the activities HMIC decides on the depth, frequency, and areas
or performance of the chief law enforcement officer of to inspect based on their judgments about what is in the
a political subdivision. Sworn law enforcement officers public interest. In making these judgments, HMIC con-
are not allowed to be regular members. siders the risks to the public, the risks to the integrity
NACOLE has two other classes of membership: asso- of policing, service quality, public concerns, the oper-
ciate members and student members. Associate members ating environment, the burden of inspection, and the
are defined as any persons interested in the oversight of potential benefits to society from the improvements that
law enforcement. Associate members are able to par- might arise from inspection.
ticipate in all association activities, including serving on The United Kingdom also has the Independent
committees. Student members are defined as individuals Police Complaints Commission (IPCC). It oversees the
currently enrolled, either full or part-time, in a college or police complaints system in England and Wales and sets
university program in the area of criminology, criminal the standards by which the police should handle com-
justice, law, sociology, political science, public administra- plaints. It is independent, making its decisions entirely
tion, journalism, or a related field, and who are interested independently of the police and government. It is not
in the oversight of law enforcement. Associate members part of the police.5 The IPCC has its own website that
and student members are ineligible to vote or serve as reports on issues involving police misconduct. It may be
officers or members of the board of directors. accessed at: www.ipcc.gov.uk
In January 2015, NACOLE president Brian Buchner Police forces deal with the majority of complaints
noted that, “Civilian oversight has evolved into something against police officers and police staff. The IPCC consid-
far broader than the review of disciplinary decisions or ers appeals from people who are dissatisfied with the
individual investigations of police misconduct. Given the way a police force has dealt with their complaint. Since
national attention on policing and the strained or broken November 2012, the responsibility for determining
relationships between police and communities, this is appeals is shared with local police forces. In addition,
the perfect time to be asking important questions about police forces must refer the most serious cases—whether
existing police accountability structures and consider- or not someone has made a complaint—to the IPCC.
ing research on effective solutions.”3 Buchner also noted The IPCC may decide to investigate such cases indepen-
that topics being explored by NACOLE included: study- dently, manage or supervise the police force’s investiga-
ing the impact of critical incidents from Rodney King to tion, or return it for local investigation.
Ferguson, attaining the right balance between national Other agencies in the United Kingdom that are
policing standards and local values, incorporating com- involved in civilian oversight of the police include the
munity input into the police reform process, using bench- Home Office, Office of the Oversight Commissioner
marks to promote constitutional policing, and developing (Northern Ireland) and the Police Ombudsman
standards for the use of body cameras in policing. (Northern Ireland).
In addition to NACOLE, there are numerous local
agencies that deal with police oversight. In most U.S. cit-
ies, there is a local oversight agency. NACOLE attempts to Canadian review boards
organize the local agencies into one strong national voice. There are over 20 different oversight agencies in Canada
that provide civilian oversight of police departments.
United Kingdom review boards For example, the Civilian Review and Complaints
Commission for the Royal Canadian Mounted Police
According to its website, “Her Majesty’s Inspectorate (CRCC) provides civilian oversight of the Mounted
of Constabulary (HMIC) independently assesses police Police. The Office of the Police Complaint Commissioner,
forces and policing across activity from neighborhood British Columbia provides impartial civilian oversight
teams to serious crime and the fight against terrorism— of complaints involving municipal police in British
in the public interest.”4 Columbia, Canada.
HMIC is independent of government and the police:
• HM inspectors of constabulary are appointed by
the crown—they are not employees of the police Civilian investigative bodies
service or the government.
• HM chief inspector of constabulary reports to and prosecutorial power
Parliament on the efficiency and effectiveness of Darius Charney from the Center for Constitutional
police forces in England and Wales. Rights testified before the President’s Task Force on 21st
Chapter nine: Citizen review boards and external oversight 147

Century Policing regarding independent investigative department, CCRB believes that giving administrative
bodies of civilian complaints. Mr. Charney stated that, disciplinary prosecutorial power to the independent
while many jurisdictions around the country currently body that investigates civilian misconduct complaints
have governmental agencies independent of the local is a legally and politically viable reform. Accordingly,
police department to investigate civilian complaints of we recommend that the Department of Justice, through
police officer misconduct, none of these agencies have its Community Oriented Policing Services (COPS) or
the power to actually discipline those officers who the other funding streams, provide funding and technical
agencies’ investigations have found have committed assistance to state and local jurisdictions to develop dis-
misconduct. In virtually all jurisdictions, the power ciplinary prosecutorial offices within existing indepen-
to impose disciplinary penalties on offending officers dent civilian complaint investigative agencies.
rests solely with the commissioner or chief of the police
department, as does the decision whether or not to even
prosecute the officers through existing administrative Investigative powers of
disciplinary hearing processes. In the few jurisdic-
tions where the independent investigative bodies have civilian oversight groups
been granted the power to administratively prosecute Many communities are going to civilian boards or
disciplinary charges against officers against whom groups to ease the tensions between police and the com-
they have sustained civilian complaints, that power is munity. With the strained relations between police and
restricted to certain categories of misconduct cases and, the community, the spotlight in many cases is focused
in New York City, can even in certain cases be removed on independent civilian oversight boards or groups.
from the investigative body altogether by the police One of the problems, however, is that most civilian over-
commissioner. sight boards have no or only limited ability to investi-
According to Charney, this lack of indepen- gate claims of police misconduct. Scripps News claims
dent disciplinary authority has, in turn, resulted in that, of the more than 200 civilian oversight organiza-
repeated failures by police departments to hold offi- tions in the United States, less than one-third have their
cers who have violated civilians’ rights to account in own investigators, and that the majority of oversight
any meaningful way. For example, in New York City, boards rely on police department internal affairs offi-
a report by the inspector general of the New York cers to determine if an officer committed misconduct.6
Police Department (NYPD) found that in all sub- According to the Scripps News article, oversight
stantiated civilian complaints against NYPD officers groups that work with an independent investigator and
for improper chokeholds between 2009 and 2013 that have more than advisory power are hard to find. While
were referred to NYPD for formal disciplinary charges some boards have the authority to reject the internal
against the offending officers, the NYPD either refused affairs investigation and recommendations and return
to administratively prosecute charges or rejected them back for further investigation, they must still take
the recommended disciplinary penalty offered by the word of internal affairs that it has been reinvesti-
the independent complaint investigative body, the gated. In addition, many oversight boards’ findings are
Civilian Complaint Review Board (CCRB). In addition, merely advisory, even when the board determines that
in the Floyd stop and frisk litigation, the United States the officer crossed the line and that there is a need for
District Court for the Southern District of New York discipline.
found that the NYPD’s disciplinary prosecution arm, The Scripps News article points out that there are
the Department Advocate’s Office (DAO), repeatedly frequent disagreements between boards and police
failed to pursue disciplinary charges against officers departments. The article noted that board members in
against whom the CCRB had sustained misconduct Baltimore, where there is also an independent inves-
allegations, rejecting CCRB investigators’ factual find- tigator, have openly questioned the board’s effective-
ings and instead conducting its own de novo review ness and have noted that the board’s findings are often
of the complaint allegations, in which it routinely ignored by the police department leaders. Many mem-
disregarded the civilian complainant’s account of the bers of the board have resigned out of frustration before
incident in question, which the CCRB investigator had their terms ended.
found to be credible. In many of the nation’s largest police departments,
These failures have, in turn, seriously undermined only a fraction of misconduct allegations is ultimately
the legitimacy of existing civilian complaint and police confirmed. For example, between 2010 and 2015 in San
officer disciplinary processes. While state and munici- Francisco, there were more than 1100 complaints of
pal labor and civil service laws often make it extremely improper force used by the police, but only 16 cases
difficult to transfer final disciplinary authority out of were sustained. In Indianapolis during the same
the hands of the chief or commissioner of a local police period, there were 268 allegations of the improper use
148 Police Misconduct: A Global Perspective

of force, but only eight were sustained. Baltimore aver- • Regular members of NACOLE are mayors, county
aged only five findings of excessive force each year or municipal managers, or others who hold execu-
during that period. tive positions on a board, council, commission,
The U.S. Department of Justice concluded that or committee with authority to direct, control, or
Cleveland police officers engaged in a pattern or practice oversee the activities or performance of the chief
of unreasonable use of force. Yet, the findings of exces- law enforcement officer of a political subdivision.
sive force sustained by the Cleveland police department • In the United Kingdom, HMIC independently
were exceedingly rare. assesses police forces and policing in the public
There are some success stories regarding indepen- interest across activity from neighborhood teams
dent oversight boards. For example, in Washington, to serious crime and the fight against terrorism.
DC, the Officer of Police Complaints observed that an • HMIC decides on the depth, frequency, and areas
increasing number of black teenagers were being tick- to inspect based on their judgments about what is
eted for riding unlicensed bicycles. The office recom- in the public interest. In making these judgments,
mended that this little known ordinance be repealed, HMIC considers the risks to the public, the risks
and it was. to the integrity of policing, service quality, public
In New York City, the police department’s inspec- concerns, the operating environment, the burden
tor general reported that the nation’s largest police of inspection, and the potential benefits to soci-
department had failed to document the use of force ety from the improvements that might arise from
by police officers. After the report was made public, inspection.
Commissioner William Bratton rolled out a new policy • The United Kingdom also has the IPCC, which
to take care of this. oversees the police complaints system in England
and Wales and sets the standards by which the
police should handle complaints. It is indepen-
Summary dent, making its decisions entirely independently
• Rashad Robinson, Executive Director, Color of of the police and government. It is not part of the
Change before the President’s Task Force on 21st police.
Century Policing, civilian oversight of police • There are over 20 different oversight agencies in
should be expanded. Canada that provide civilian oversight of police
• The use of civilian oversight boards is a proactive departments. For example, the Civilian Review
approach to identify underlying systemic prob- and Complaints Commission for the Royal
lems with police and the comprehensive legal Canadian Mounted Police (CRCC) provides civil-
power to resolve said issues, as well as control over ian oversight of the Mounted Police.
more than police misconduct. • Many communities are moving to civilian boards
• Probably on the most important functions of or groups to ease the tensions between police and
civilian or citizen review boards is to oversee the the community. With strained relations between
processing of citizens’ complaints about police police and communities, the spotlight in many
misconduct. cases is focused on independent civilian oversight
• As noted by HRW, citizen review agencies should boards or groups. One of the problems, however,
publish reports, at least annually, presenting is that most civilian oversight boards have no or
detailed statistics and information relating to only limited ability to investigate claims of police
complaints, trends, sustained rates for each type misconduct.
of complaint, disciplinary actions stemming from • In many of the nation’s largest police departments,
sustained allegations, policy recommendations (as only a fraction of misconduct allegations is ulti-
well as the departmental responses to those rec- mately confirmed.
ommendations), and community outreach efforts.
• HRW also contends that review boards should be
empowered and financed to conduct investiga-
tions on their own initiative. Discussion questions
• NACOLE is a nonprofit organization that brings 1. What powers and functions should be given to
together individuals or agencies working to estab- civilian oversight boards?
lish or improve oversight of police officers in the 2. How do the civilian oversight boards in the United
United States. States differ from those in the United Kingdom?
• NACOLE operates to provide for the establishment, 3. Who should serve on the oversight boards?
development, education, and technical assistance 4. What reports should the oversight boards publish
of/for the civilian oversight of law enforcement. to the public each year?
Chapter nine: Citizen review boards and external oversight 149

References 5. IPCC website at http://www.ipcc.gov.uk/page/about-

us#sthash.wp06oGa1.dpuf. Accessed on October 22,
1. Allyson Collins (1998) Shielded from Justice: Police Brutality 2015.
and Accountability in the United States. New York: Human 6. Ross Jones (November 16, 2015). Many civilian review
Rights Watch. groups have limited power to resolve allegations of
2. NACOLE website at https://nacole.org/membership. police misconduct, Scripps News website at http://
Accessed on October 22, 2015. www.thedenverchannel.com/news/many-civilian-
3. Press release by Brian Buchner on January 6, 2015, at review-groups-lack-the-power-to-resolve-allega-
buchner@nacole.org. Accessed on October 22, 2015. tions-of-police-misconduct. Accessed on November
4. HMIC website at http://www.justiceinspectorates.gov. 17, 2015.
uk/hmic/about-us/. Accessed on October 22, 2015.
chapter ten

Investigating and complaining of officer misconduct

Learning objectives such officers. Each department or agency is required to
make available to the public a written description of the
After studying this chapter, the reader should procedure it uses. Complaints, reports, or findings must
understand the following concepts and issues: be retained for a period of at least five years.
The California Civil Rights Handbook, Chapter 9, on
• The best method to file a complaint against a law peace officer misconduct, states that:
enforcement officer
• The complaint process It is the policy of the California Department
• How a complaint is investigated of Justice that local government will be pri-
• Peace officers’ bills of rights marily responsible for citizen complaints
• Use of polygraph tests against law enforcement agencies and
• Reporting requirements their employees, and that appropriate local
• Obtaining discovery of police documents resources (e.g., sheriff or police department,
district attorney, citizens’ review commis-
Complaint process sion and/or grand jury) be utilized for reso-
lution of such complaints prior to a request
Many citizens are reluctant to file a complaint against for intervention by the Attorney General.
a peace officer for fear of retaliation. Most nations and All complaints filed with the California
states within the United States have statutes to prevent Department of Justice will be processed and
retaliation or to protect the complaining citizen. While reviewed by the Attorney General’s Public
the statutes are not uniform, there are some similari- Inquiry Unit to determine whether all local
ties. In this section, we will examine the Florida and remedies have been exhausted. Complaints
California statutes and regulations in this area. meeting this criterion are then forwarded
The term “complaining citizen” is used as a short- to and reviewed by the Attorney General’s
hand way of describing a person who has filed a Criminal Law Division and Civil Rights
complaint of misconduct against a police officer or Enforcement Section. If the complaint alleges
department. It also includes those individuals who are that the local district attorney wrongfully
not citizens. declined to criminally prosecute the officer-
involved, the Criminal Law Division may
review the matter to determine whether the
Filing a misconduct complaint
district attorney abused his or her discretion
The state of California and many other states have a in declining to bring criminal charges and
standard form for filing a complaint against a peace take whatever other action that the Attorney
officer or law enforcement agency. California’s statutes General may deem appropriate. Complaints
and regulations provide that a governmental author- that raise alleged patterns or practices of the
ity, agent, or person acting on behalf of a governmen- violation of civil rights by a local law enforce-
tal authority is prohibited from engaging in a pattern ment agency may be reviewed by the Civil
or practice of conduct by law enforcement officers that Rights Enforcement Section for whatever
deprive any person of rights, privileges, or immunities action that the Attorney General may deem
secured or protected by state or federal law. The attor- appropriate.
ney general may bring a civil action for equitable or
declaratory relief to eliminate the unlawful pattern or Florida statute §112.532(1) provides that when a com-
practice. plaint is made against an officer, the officer has the right
A typical state statute on the procedure for handling to be represented by a chosen representative. However,
complaints against peace officers is California Penal §112.533 provides that the representative is not autho-
Code §832.5. That section requires each department rized to review the complaint and statements against
or agency which employs peace officers to establish a the officer until after the commencement of an inves-
procedure for investigating citizens’ complaints against tigative interview. Florida provides that the complaint

151
152 Police Misconduct: A Global Perspective

against an officer and all information obtained during one has the right to refuse mediation if it is offered.
the agency’s investigation are confidential. But, the offi- Also, one does not have the right to demand mediation.
cer involved and his or her representative do have the Whether or not mediation will help achieve one’s goals
right to review the material. definitely depends on the facts of one’s case, and the
professionalism of the agency with which one is deal-
ing. If mediation is offered, it is worth tracking down
Filing an effective complaint
a lawyer or other local insider with knowledge of the
There are certain tips that a citizen should adhere to in mediation process and its likely effect on the results of
order to file an effective complaint. Those include: one’s complaint.

• Control your emotions when making the com-

Unidentified officer
plaint. As noted in the famous Dragnet TV series,
“just the facts, ma’am.” In most jurisdictions, police agencies must make a good-
• Do not engage in “name calling.” faith effort to identify the officer on the citizen’s behalf.
• Complain in writing. An oral complaint is rarely Unless one is going to sue the agency (and thus will have
effective. discovery or subpoena power), one will not have much
• Complain to the proper authority. A quick internet chance to identify the officer oneself. So, if the agency
search will probably reveal the name of the proper cannot or will not identify the officer, one’s best chance
authority. is to challenge whether the agency really lived up to its
• File in a timely manner—do not wait too long obligations and made a good-faith effort; one should ask
before filing the complaint. them to document what steps they took to identify the
• If possible, include corroborating witnesses whose officer(s) in question.
reports are not in conflict with yours.
• Consider sending a copy of your complaint to
a state representative or other local politician.
Alberta, Canada’s Peace Officer Act
Generally, when there is outside pressure, the A typical process for handling complaints is reflected in
agency acts in a more efficient manner. Alberta, Canada’s Peace Officer Act.
• If there is a standard form such as used in The act requires that the notification of public com-
California and many other jurisdictions—use it. plaints and reporting to the Peace Officer Program must
be accompanied by an incident report form. The form
and any accompanying documentation may be faxed,
Racial profiling mailed, or e-mailed to the Peace Officer Program.
Numerous complaints are received each year accusing Under the act, any person may make a complaint in
peace officers of racial profiling. A typical state statute writing regarding a peace officer to the peace officer’s
designed to prevent racial profiling is California Penal authorized employer. The employer must investigate
Code §13519.4, which prohibits “racial profiling” by law and dispose of the complaint in accordance with the
enforcement officers. The section defines “racial profil- procedures set out in the act and the regulations. The
ing” as the practice of detaining a suspect for no reason employer must notify the complainant and the peace
other than the color of that person’s skin or apparent officer every 45 days as to the status of the complaint
nationality or ethnicity. The section concludes with the until the disposition of the complaint. An incident
statements that racial profiling violates the due process report form must also be submitted to the Peace Officer
and equal protection clauses and the prohibition against Program at poprogram@gov.ab.ca every 45 days until
unlawful searches and seizures embodied in the state the disposition of the complaint.
and federal constitutions. Every law enforcement offi- A notification of the complaint must also be pro-
cer is required to participate in training on racial and vided to the Peace Officer Program using the incident
cultural diversity, which includes, but is not limited to, report form. Attached to the form should be a copy of
gender and sexual orientation issues. the complaint, notification to the involved peace officer,
a copy of the letter of acknowledgment to the complain-
ant and any other relevant documentation, and it is to
Mediation be submitted to the public complaints coordinator at
Many law enforcement agencies have mediation pro- poprogram@gov.ab.ca.
cedures. Mediation is a voluntary process for resolving Anonymous complaints: Anonymous complaints, in
complaints, and it may involve meeting with other com- writing, do not allow for the authorized employer to
munity members, police officers, police administrators, discharge required legal responsibilities under the act
and/or an independent monitor. In most jurisdictions, and regulations relating to the complaint notification;
Chapter ten: Investigating and complaining of officer misconduct 153

therefore, they are not considered a complaint under §14 Incidents must be reported by the employer on
of the Peace Officer Act. an incident report form. Incidents required to be
However, if the nature of any complaint (anony- reported include every incident in which a peace
mous, written, or verbal) is serious, the employer or officer, while carrying out his or her duties, may have
registrar shall review the matter. In the event that some
element of substance to the allegation is uncovered, the • Used excessive force
employer must report it to the manager of the Peace • Used a weapon or equipment prescribed by
Officer Program as per §16 of the Peace Officer Act. the regulations in circumstances referred to in
Criminal misconduct: Any allegations of criminal the regulations
misconduct must be turned over to the police service • Been involved in an incident involving a
of the jurisdiction and the complainant notified forth- weapon used by another person
with. Should the police service make a determination • Been involved in an incident involving serious
that a criminal event has occurred, then the standard injury to or the death of any person, or
complaint process must be followed and the authorized • Been involved in any other circumstances
employer is required to keep the file open and provide referred to in the regulations
the required 45 day notifications to the peace officer, Also, any matter of a serious or sensitive nature
complainant, and the Peace Officer Program until such related to the actions of a peace officer is required
time as the police have concluded their investigation. to be reported. This may also include:
Should the police service determine that no criminal
allegations had occurred, the authorized employer may • Violations of the employer’s code of conduct
wish to continue to conduct a code of conduct investiga- • Loss of identification
tion or conclude the file. • Suspension or termination of a peace officer
Informal resolution of complaints: Prior to conducting • Use of baton
a formal investigation, the authorized employer may • Use of conducted energy weapon/tear gas
attempt to resolve the matter informally with the con- • Use of firearm discharged at a person/not as
sent of the complainant and the peace officer(s) involved. part of peace officer duties
Unfounded authorized-employer-initiated investigations: • Use of force
Unless an internally identified issue fits within the scope • Use of other weapon as detailed on policy
of a mandatory reportable event or incident as specified • Use of O/C spray
by §19 of the Peace Officer Act, employer-initiated inves- • Newspaper article indicating involvement in
tigations that result in the issue being unfounded do not high-speed chase
need to be reported (either initially upon detection or • Staff member complaining about conduct
upon conclusion). Records should be kept internally as • Staff member complaining about intimidation
part of an effective record management system, and be
available for audit purposes, to ensure that an employer
can demonstrate appropriate dispositions and investi- Complaint dispositions
gations if challenged. Many citizens fail to file a complaint against the police
Appeals of the outcome of a complaint: because they feel that the complaint will be ignored.
In this section, we will look at the results of a report
Complaint against a peace officer: If the officer is not on complaint dispositions sponsored by the Bureau of
satisfied with the decision of the authorized Justice Statistics, U.S. Department of Justice.1
employer, he or she may appeal to the director of Of the total force complaints received in one calen-
law enforcement within 30 days using the pro- dar year, 94% had a final disposition at the time of data
cess outline in the document “How to Resolve collection. The percentage with a disposition varied
a Complaint Concerning the Conduct of a Peace only slightly by type of agency.
Officer in Alberta.” Among force complaints having a final disposition:
Complaint against a sheriff: If a sheriff is not satisfied with
the decision of the Professional Standards Unit, he • Thirty-four percent of the complaints were not
or she may appeal the decision to the sheriff appeals sustained, meaning that there was insufficient evi-
delegate within 30 days, using the process outlined dence to prove the allegation.
in the document “How to Resolve a Complaint • Twenty-five percent of the complaints were
Concerning the Conduct of a Sheriff in Alberta.” unfounded, meaning that the complaint was not
Reporting requirements for the Peace Officer Program: An based on facts or the reported incident did not occur.
employer must provide a report to the director as • Twenty-three percent of the complaints resulted
soon as he or she becomes aware of the following. in officers being exonerated, meaning that the
154 Police Misconduct: A Global Perspective

incident occurred, but the officer’s action was the issue before the court on this petition. This issue
deemed lawful and proper. arose in the context of a petition by the Police Captains’
• Eight percent of the complaints were sustained, Endowment Association, the association for all police
meaning that there was sufficient evidence to jus- officers with the rank of captain, deputy inspector,
tify disciplinary action against the officer(s). inspector, and deputy chief, which sought an order hold-
• Nine percent of the complaints had some other ing that a special commission appointed by the mayor
disposition (e.g., the complaint was withdrawn). for the investigation of allegations of corruption, popu-
larly known as the Mollen Commission, was in excess of
The most common disposition for force complaints the mayor’s jurisdiction. The city cross moved, seeking
received by municipal police departments was “not sus- dismissal of the petition on the grounds that the mayor
tained” (37%). One-quarter of force complaints in these was acting within his authority as chief executive officer
agencies were unfounded, and in about one-fifth (21%), in establishing the Mollen Commission. The court held
officers were exonerated. Eight percent of force com- that the mayor, in establishing the Mollen Commission,
plaints were sustained. was acting within his authority, and that the Mollen
Among county police departments, force com- Commission was legally constituted; that the chairman
plaints most frequently resulted in officers being exon- of the commission, Hon. Milton Mollen, had the author-
erated (35%). One-quarter were not sustained, 17% were ity, as a special deputy commissioner of investigation,
unfounded, and 6% were sustained. A larger propor- to subpoena witnesses, as well as having general inves-
tion of complaints in these agencies resulted in some tigatory powers.
other disposition (17%) as compared to other types of On July 24, 1992, Mayor Dinkins issued Executive
agencies. Order 42. This executive order established a commis-
About 6 in 10 complaints received by sheriffs’ offices sion headed by Hon. Milton Mollen to investigate alle-
resulted in officers being exonerated (32%) or the com- gations of corruption, the effectiveness of the police
plaint being unfounded (30%). One-fifth of complaints department procedures to prevent and detect corrup-
were not sustained. tion, and to recommend improvements and reforms
Compared to other types of agencies, sheriffs’ in the existing procedures. The Mollen Commission
offices had the highest proportion of complaints that was empowered to hold hearings, receive evidence,
were sustained (12%). and examine witnesses to enable it to perform these
The percentage of force complaints having a dis- tasks. Pursuant to the executive order to comply with
position varied slightly by agency size, ranging from New York City Charter §§802, 805, the commissioner
97% among agencies having fewer than 250 officers to of the Department of Investigation designated Mr.
93% among those with 1000 or more officers. Forty-two Mollen as special deputy commissioner with sub-
percent of force complaints received by departments poena power.
with 1000 or more officers were not sustained, which The government of the city of New York is modeled
was roughly twice the rate of all other departments. on the tripartite distribution of powers among the three
Departments with 1000 or more officers also had the branches of government: executive, legislative, and judi-
lowest “sustained” rate (6%), roughly half that of all cial. The purpose of the separation of powers doctrine
other departments. is to better secure liberty by division of authority. The
city council has legislative authority and the mayor may
not encroach upon it. Likewise, the mayor is chief execu-
Investigating police misconduct tive with the primary responsibility of managing and
New York mayor’s authority to administering programs. In this case, the establishment
of a special commission within the mayor’s office for the
investigate police corruption purpose of investigations, inquiries, holding hearings,
The mayor of the city of New York established a spe- and making recommendations was within the mayor’s
cial commission headed by the Honorable Milton authority.
Mollen, former deputy mayor for public safety and for- A special commission to investigate general condi-
mer presiding justice of the Appellate Division Second tions and make recommendations for reforming pro-
Department. The purposes of the commission was to cedures does not encroach on the Civilian Complaint
investigate allegations of police corruption by hold- Review Board, since, under §440 of the New York City
ing hearings and examining witnesses, and review the Charter, this body investigates specific complaints
police department’s existing procedures to make recom- against individual members of the police department
mendations for reforms that would better safeguard the and recommends disciplinary action. In Kiernan, the
integrity of the department. The authority of the mayor court upheld the Knapp Commission as within the may-
to establish an investigatory special commission was or’s authority and determined that, as part of his duty to
Chapter ten: Investigating and complaining of officer misconduct 155

keep himself informed of the activities of city agencies Philadelphia Police Department, against appellant,
and to enforce the law, the mayor could establish a com- publisher of the Philadelphia Inquirer. It was based on an
mission to investigate conditions in the police depart- article in the Inquirer concerning police corruption. The
ment. In holding that the mayor had the independent jury awarded appellee both compensatory and puni-
power to establish the Knapp Commission to investi- tive damages. Appellant’s motion for judgment n.o.v.
gate systemic problems in the police force, Justice Harry or new trial was denied. The appellate court concluded
Frank quoted from the dispositive appellate authority that judgment n.o.v. should have been entered because
as follows (64 Misc.2d, at 621, 315 N.Y.S.2d 74): appellee failed to prove that appellant published the
article with “actual malice” or “reckless disregard of the
The Mayor is under a duty to communicate truth,” as required by New York Times Co. v. Sullivan, 376
to the Council annually a general statement U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). The case was
as to the finances, affairs and activities of reversed.
the City and its agencies, to recommend to The appellate court noted that literal “truth” of a
the City Council legislation which he deems publication need not be established, only that the state-
necessary or desirable. To keep himself ment is “substantially true.” The proof of “truth” must
informed as to the activities of city agencies, go to the “gist” or “sting” of the defamation. The test
to take measures for the efficient conduct of is “whether the [alleged] libel as published would have
their business and to cause all provisions of a different effect on the mind of the reader from that
law to be enforced. He may command any which the pleaded truth would have produced.”
investigation which will supply him with the
information required.
Fixing tickets
The petitioners’ assertions regarding the
merits of the Mollen Commission are not In People v. Anthony, et al.,† the evidence presented to
matters properly before this court, see Jones, the grand jury established that defendants, all of whom
supra. The contention that a commission were New York City police officers and/or Patrolmen’s
differently funded or with different mem- Benevolent Association (PBA) delegates or trustees,
bers, would be a better commission involves engaged in a scheme involving the fixing of summonses
matters of judgment more appropriately given for illegal parking and for moving violations. The
addressed to the policy making branches. investigation into ticket fixing was an outgrowth of an
The hearings have not yet been held. When earlier investigation into the illegal activities of Police
the hearing process is completed and the Officer Jose Ramos (who was separately indicted),
Commission issues its report, the public will which included, among other activities, the sale of
be in a better position to judge the merits of large quantities of marijuana and counterfeit DVDs
the proposed reforms. from two barbershops in the Bronx owned by Ramos,
The court also finds the assignment as well as a robbery, a burglary, and insurance fraud.
of funds within the Mayor’s Office to the The investigation into Ramos’ illegal activities included
Mollen Commission is a proper intra-agency the use of court-authorized eavesdropping on Ramos’
transfer that is permitted under New York cell phone. During the course of the eavesdropping on
City Charter § 107(a). Finally the court holds Ramos, a number of conversations were intercepted in
that the commission and its chairman has which Ramos was overheard communicating with fel-
subpoena powers, pursuant to the designa- low police officers in order to fix summonses for mov-
tion of the Commissioner of the Department ing violations that had been issued to people known
of Investigation implementing City Charter to Ramos. Those interceptions formed the basis for the
§§ 802, 805 as well as the general investiga- court’s order, issued on December 23, 2009, authorizing
tory powers. eavesdropping on Police Officer Virgilio Bencosme’s cell
For the reasons set forth above, the phone, the court having found that there was probable
City’s cross motion to dismiss the petition is cause to believe that Bencosme’s phone had been used
granted. and would continue to be used in furtherance of the
crime of grand larceny in the fourth degree and the con-
spiracy and the attempt to commit this crime. Following
Police defamation the December 23, 2009 order authorizing eavesdrop-
In Dunlay v. Philadelphia Newspapers,* an action for ping on Bencosme’s phone, the court authorized wire-
defamation was brought by appellee, a sergeant in the taps to investigate ticket fixing on 16 additional mobile

* 448 A.2d. 6 (Pa Super. 1982). † 42 Misc.3d 411 (Sup. Crt. Bronx, 2013).
156 Police Misconduct: A Global Perspective

telephones operated by 13 other Bronx police officers officers should have certain protections, those protec-
who were either delegates or officers of the Bronx PBA tions should not be used to shield officer misconduct.
or Sergeants’ Benevolent Association (SBA). The eaves- In July 1996, Gilbert Gallegos, former national presi-
dropping, which ended on December 14, 2010, resulted dent of the Fraternal Order of Police, testified before a
in the interception of over 10,000 telephone conversa- U.S. House of Representatives Subcommittee on Crime
tions and text messages. that a national law enforcement officers’ bill of rights
was needed because the rights of police officers do exist;
they are spelled out in the U.S. Constitution; and they
Discovery requests have been ruled on as a matter of law in the highest
One of the leading cases on seeking documents from court in the land. Yet, according to Gallegos, there was
a police department’s internal affairs unit is Jaramillo still evidence, overwhelming evidence, that these rights
v. City of San Mateo.* In this civil rights case, alleging were being ignored by police management, simply
excessive force and retaliation by City of San Mateo because the correct holding of the court had not been
police officers, plaintiff Jaramillo sought to discover consistently applied. Gallegos testified that police offi-
documents relating to his arrest, including San Mateo’s cers were not being treated fairly.
“Internal Affairs” documents. The primary dispute was Gallegos stated that no police officer or police
whether the “official information” privilege shielded department wanted to work with a bad or brutal cop. It
the discovery. San Mateo asserted that Jaramillo should should also be noted that the bill protected the rights of
have instead deposed witnesses to discover the relevant officers under internal, noncriminal investigations only.
information. As explained in the following paragraph, He stated that police officers were held to a much higher
the court found that Jaramillo’s need to discover rel- standard of personal and professional conduct—as well
evant information outweighed the qualified “official they should be, considering the enormous responsibility
information” privilege. The court therefore granted they hold. Sometimes, however, this higher standard
Jaramillo’s discovery requests, with some modifications and increased visibility subjected police officers to false
to focus the discovery. accusations from criminals and others in society who
The court noted that, here, the requested infor- had no other motivation in making such allegations
mation was probative of what happened the day of than to disrupt law enforcement activities. He con-
Jaramillo’s arrest, what statements witnesses made, what cluded his testimony with the assurance that the bill
investigation took place, whether San Mateo ratified the would not protect bad cops.2
officers’ conduct, whether San Mateo retaliated against Unfortunately, the assurance that a law enforce-
Jaramillo, and whether officers complied with the appli- ment officers’ bill of rights would not protect bad cops
cable training and policies. The requested information is not correct. Louisiana has an officers’ bill of rights.
was therefore relevant. A finding of relevance does not In one reported case, in Shreveport, an officer was con-
end the court’s inquiry. Federal Rule of Civil Procedure ducting a videotaped interview with a DUI suspect.
26(c) provides that a court may limit discovery to protect During the interview, the officer turned off the camera.
from annoyance, embarrassment, oppression, or undue Later, when the camera was turned back on, it showed
burden or expense. Furthermore, the federal common the suspect on the floor in a pool of blood. The officer
law recognizes a qualified privilege for “official infor- was later fired. He appealed his termination to a civil
mation.” To determine whether the official information service board. The board found that the officer’s rights
sought is privileged, courts must carry out a case-by- under the Louisiana officers’ bill of rights were violated
case analysis that weighs the potential benefits of dis- and ordered the city to rehire him and give him a year
closure against the potential disadvantages. If the latter and a half of back pay.3
is greater, the privilege bars discovery. In 2015 in Baltimore, Maryland, city police officers
dragged Freddie Gray into a van. He emerged a short
while later with a fatal injury to his spine. When the
Law enforcement officers’ local press complained to the Baltimore mayor about the
bills of rights lack of action in the case by the city, Mayor Rawlings-
Are officers’ bills of rights a protection for police officers Blake responded that the city officials were unable to
or are they used to shield police officers involved in mis- “fully engage” with the officers “because of our Law
conduct? Most U.S. states and nations have established a Enforcement Officers’ Bill of Rights.” The state bill
bill of rights for law enforcement officers. In this section, includes a provision that the officers cannot be forced
we will explore some of the more popular bills. While to make any statement for 10 days after the incident and
then may only be questioned for a reasonable length of
time, at a reasonable hour, and by only one or two inves-
* 2013 WL 5692425 (N.D. Cal. 2013). tigators, who must be fellow policemen4 (Box 10.1).
Chapter ten: Investigating and complaining of officer misconduct 157

BOX 10.1 MARYLAND’S LAW ENFORCEMENT OFFICERS’ BILL OF RIGHTS

§ 3-104. Investigation or interrogation of law enforcement officer.
(a) In general: The investigation or interrogation by a law enforcement agency of a law enforcement officer
for a reason that may lead to disciplinary action, demotion, or dismissal shall be conducted in accor-
dance with this section.
(b) Interrogating or investigating officer: For purposes of this section, the investigating officer or interrogat-
ing officer shall be:
(1) a sworn law enforcement officer; or
(2) if requested by the Governor, the Attorney General or Attorney General’s designee.
(c) Complaint that alleges brutality:
(1) A complaint against a law enforcement officer that alleges brutality in the execution of the law
enforcement officer’s duties may not be investigated unless the complaint is sworn to, before an offi-
cial authorized to administer oaths, by:
(i) the aggrieved individual;
(ii) a member of the aggrieved individual’s immediate family;
(iii) an individual with firsthand knowledge obtained because the individual was present at and
observed the alleged incident; or
(iv) the parent or guardian of the minor child, if the alleged incident involves a minor child.
(2) Unless a complaint is filed within 90 days after the alleged brutality, an investigation that may lead
to disciplinary action under this subtitle for brutality may not be initiated and an action may not be
taken.
(d) Disclosures to law enforcement officer under investigation:
(1) The law enforcement officer under investigation shall be informed of the name, rank, and command
of:
(i) the law enforcement officer in charge of the investigation;
(ii) the interrogating officer; and
(iii) each individual present during an interrogation.
(2) Before an interrogation, the law enforcement officer under investigation shall be informed in writing
of the nature of the investigation.
(e) Disclosures to law enforcement officer under arrest.- If the law enforcement officer under interrogation
is under arrest, or is likely to be placed under arrest as a result of the interrogation, the law enforcement
officer shall be informed completely of all of the law enforcement officer’s rights before the interrogation
begins.
(f) Time of interrogation.- Unless the seriousness of the investigation is of a degree that an immediate inter-
rogation is required, the interrogation shall be conducted at a reasonable hour, preferably when the law
enforcement officer is on duty.
(g) Place of interrogation:
(1) The interrogation shall take place:
(i) at the office of the command of the investigating officer or at the office of the local precinct or
police unit in which the incident allegedly occurred, as designated by the investigating officer; or
(ii) at another reasonable and appropriate place.
(2) The law enforcement officer under investigation may waive the right described in paragraph (1)(i) of
this subsection.
(h) Conduct of interrogation:
(1) All questions directed to the law enforcement officer under interrogation shall be asked by and
through one interrogating officer during any one session of interrogation consistent with paragraph
(2) of this subsection.
(2) Each session of interrogation shall:
(i) be for a reasonable period; and
(ii) allow for personal necessities and rest periods as reasonably necessary.
(i) Threat of transfer, dismissal, or disciplinary action prohibited.- The law enforcement officer under inter-
rogation may not be threatened with transfer, dismissal, or disciplinary action.
158 Police Misconduct: A Global Perspective

(j) Right to counsel:

(1) (i) On request, the law enforcement officer under interrogation has the right to be represented by
counsel or another responsible representative of the law enforcement officer’s choice who shall
be present and available for consultation at all times during the interrogation.
(ii) The law enforcement officer may waive the right described in subparagraph (i) of this paragraph.
(2) (i) The interrogation shall be suspended for a period not exceeding 10 days until representation is
obtained.
(ii) Within that 10-day period, the chief for good cause shown may extend the period for obtaining
representation.
(3) During the interrogation, the law enforcement officer’s counsel or representative may:
(i) request a recess at any time to consult with the law enforcement officer;
(ii) object to any question posed; and
(iii) state on the record outside the presence of the law enforcement officer the reason for the objection.
(k) Record of interrogation:
(1) A complete record shall be kept of the entire interrogation, including all recess periods, of the law
enforcement officer.
(2) The record may be written, taped, or transcribed.
(3) On completion of the investigation, and on request of the law enforcement officer under investiga-
tion or the law enforcement officer’s counsel or representative, a copy of the record of the interroga-
tion shall be made available at least 10 days before a hearing.
(l) Tests and examinations - In general:
(1) The law enforcement agency may order the law enforcement officer under investigation to sub-
mit to blood alcohol tests, blood, breath, or urine tests for controlled dangerous substances,
polygraph examinations, or interrogations that specifically relate to the subject matter of the
investigation.
(2) If the law enforcement agency orders the law enforcement officer to submit to a test, examination, or
interrogation described in paragraph (1) of this subsection and the law enforcement officer refuses to
do so, the law enforcement agency may commence an action that may lead to a punitive measure as
a result of the refusal.
(3) If the law enforcement agency orders the law enforcement officer to submit to a test, examination,
or interrogation described in paragraph (1) of this subsection, the results of the test, examination, or
interrogation are not admissible or discoverable in a criminal proceeding against the law enforce-
ment officer.
(m) Same - Polygraph examinations:
(1) If the law enforcement agency orders the law enforcement officer to submit to a polygraph exami-
nation, the results of the polygraph examination may not be used as evidence in an administrative
hearing unless the law enforcement agency and the law enforcement officer agree to the admission
of the results.
(2) The law enforcement officer’s counsel or representative need not be present during the actual admin-
istration of a polygraph examination by a certified polygraph examiner if:
(i) the questions to be asked are reviewed with the law enforcement officer or the counsel or repre-
sentative before the administration of the examination;
(ii) the counsel or representative is allowed to observe the administration of the examination; and
(iii) a copy of the final report of the examination by the certified polygraph examiner is made avail-
able to the law enforcement officer or the counsel or representative within a reasonable time, not
exceeding 10 days, after completion of the examination.
(n) Information provided on completion of investigation:
(1) On completion of an investigation and at least 10 days before a hearing, the law enforcement officer
under investigation shall be:
(i) notified of the name of each witness and of each charge and specification against the law enforce-
ment officer; and
(ii) provided with a copy of the investigatory file and any exculpatory information, if the law enforce-
ment officer and the law enforcement officer’s representative agree to:
Chapter ten: Investigating and complaining of officer misconduct 159

1. execute a confidentiality agreement with the law enforcement agency not to disclose any
material contained in the investigatory file and exculpatory information for any purpose
other than to defend the law enforcement officer; and
2. pay a reasonable charge for the cost of reproducing the material.
(2) The law enforcement agency may exclude from the exculpatory information provided to a law
enforcement officer under this subsection:
(i) the identity of confidential sources;
(ii) nonexculpatory information; and
(iii) recommendations as to charges, disposition, or punishment.
(o) Adverse material:
(1) The law enforcement agency may not insert adverse material into a file of the law enforcement offi-
cer, except the file of the internal investigation or the intelligence division, unless the law enforce-
ment officer has an opportunity to review, sign, receive a copy of, and comment in writing on the
adverse material.
(2) The law enforcement officer may waive the right described in paragraph (1) of this subsection.

Officer’s privilege against The petitioner may have a constitutional

right to talk politics, but he has no constitu-
self-incrimination tional right to be a policeman. There are few
As discussed in the following cases, a police officer may employments for hire in which the servant
not be required to testify if such testimony will cause does not agree to suspend his constitutional
him or her to incriminate him- or herself. However, the right of free speech as well as of idleness by
protection against self-incrimination does not extend to the implied terms of his contract. The servant
the cases where the police officer gives a false statement. cannot complain, as he takes the employ-
The Supreme Court noted in Garner v. Broderick, 392 ment on the terms which are offered him. On
U.S. 273 (1968), that if a policeman had refused to answer the same principle the city may impose any
questions specifically, directly, and narrowly relating reasonable condition upon holding offices
to the performance of his official duties, without being within its control.
required to waive his immunity with respect to the use
of his answers or the fruits thereof in a criminal pros- The court noted that the privilege against self-
ecution of himself, the privilege against self-incrimina- incrimination would be reduced to a mockery if its
tion would not be a bar to his dismissal. exercise could be could be taken as equivalent to a con-
fession; and that the right against self-incrimination is
of constitutional statute and a state may not condition it
Garrity v. New Jersey
on the exaction of a price. The court held that the protec-
In Garrity v. New Jersey, 87 S.Ct. 616 (1967), police officers tion of the individual under the Fourteenth Amendment
were convicted in state court of conspiracy to obstruct against coerced statements prohibits use in subsequent
justice. The state attorney general was investigating criminal proceedings of statements obtained under
irregularities in the handling of criminal cases in the threat of removal from office, and that it extends to all,
state municipal courts. Before being questioned during whether they are policemen or other members of our
the investigation, each officer was warned that anything body politic.
he said might be used against him in any state crimi-
nal proceedings, that he had the privilege to refuse to
People v. Marchetta
answer if the disclosure would tend to incriminate him,
but that if he refused to answer he could lose his posi- In a 1998 case in a New York State court, People v.
tion with the police department. Marchetta, 177 Misc. 2d. 701 (1998), a port authority
The court noted that the petitioners had the choice police officer was convicted of menacing and dis-
between self-incrimination or job forfeiture. The option orderly conduct based on a statement that he had
to lose their means of livelihood or to pay the penalty given in an investigation. The court stated: “Public
of self-incrimination is the antithesis of free choice to employees, who are charged with a public trust, do
speak out or to remain silent. In the investigation, the not have an absolute right to refuse to account for
state had relied on an earlier statement made by Justice their official actions, and at the same time retain their
Holmes in McAuliffe v. New Bedford, 155 Mass. 216, that: employment.”
160 Police Misconduct: A Global Perspective

Officer Marchetta was told that he “must” cooper- interviews; (3) “Dissemination of Information” for mak-
ate in the investigation and was also distinctly informed ing disparaging remarks about a fellow officer and
that he did not have to give evidence against himself. disclosing information regarding a separate investiga-
The court noted that the written statement given by the tion; (4) “Required Reports” for failing to note a state-
port authority police officer, in connection with police ment by one juvenile implicating another juvenile in
investigation of the incident, which eventually gave rise the theft; (5) “Truthfulness” for providing false infor-
to charges of menacing and disorderly conduct against mation when questioned regarding the alleged conduct;
him, was made voluntarily and without the officer being and (6) “Miranda Warnings” for failing to administer a
under pressure to either incriminate himself or lose his Miranda warning to a suspect. The department sought
job, and thus was not obtained in violation of his Fifth suspension without pay or other disciplinary action
Amendment right against self-incrimination; the officer deemed appropriate by the civil service commission.
was never informed that he would experience any job- Prior to the commencement of the hearing, Herek
related sanction if he did not submit a statement. filed a motion to dismiss the untruthfulness charge
based on the department’s failure to provide warnings
under Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616,
False statement
17 L.Ed.2d 562 (1967). The commission denied Herek’s
The Garrity immunity has been held not to apply where motion, finding that the law did not mandate the sup-
the police officer makes a false statement during the pression of his statements based on the lack of Garrity
course of a department’s internal investigation. In Herek warnings and that his statements had not been coerced,
v. Village of Menomonee Falls, 226 Wis. 2d 504 (1999), involuntary, or given as a result of a denial of due
Officer Scott Herek apparently gave a false statement to process.
the investigating officer. On July 22, 1997, after hearing approximately
Herek was employed by the City of Milwaukee six days of testimony from approximately 22 witnesses,
Police Department from approximately February 1990 the commission issued a decision and order concluding
to June 1995. In June 1995, Herek began employment that there was just cause for discipline and ordering that
with the Village of Menomonee Falls Police Department. Herek be removed from office, effective immediately.
In December 1996, approximately three weeks after The court noted that what is proscribed as unconsti-
the expiration of his probationary period, Herek was tutional is to condition public employment on a waiver
assigned the investigation of a theft. The theft occurred of the privilege against self-incrimination. When duress
at a private residence during a party held by a juvenile is inherent in the “choice” given, the individual being
while his parents were not at home. During the course questioned is deprived of the opportunity to make a free
of the investigation, Herek interviewed certain juveniles and reasoned decision. Such circumstances have been
who had attended the party. One parent filed a citizen aptly characterized as ones that force a public employee
complaint against Herek based on his conduct during to select “between the rock and the whirlpool.”
these interviews. The court concluded that it was undisputed that
On December 30, 1996, a police sergeant was Herek made false statements during the department’s
assigned to investigate the complaint. During his inves- interview. He now sought to suppress those statements,
tigation, the sergeant conducted personal interviews which were the basis for the charge of untruthfulness,
and obtained affidavits from the juveniles involved in under the cloak of Garrity. However, the court noted that
the investigation and their parents. On February 5, 1997, they did not know of any case law which extends Garrity
Herek was interviewed. The purpose of the interview immunity to false statements made during the course
was to allow Herek to respond to the allegations of of a disciplinary investigation. Indeed, the case law is
inappropriate conduct. Herek responded to the depart- to the contrary. For various reasons, the court deemed
ment’s questions and denied that the alleged inappro- it dispositive that Herek gave false statements during
priate conduct took place. the interview. The court dismissed Herek’s claim that he
At the close of his investigation, the sergeant pro- should not have been removed from office.
vided the department with a written report, stating his
determination that Herek had violated departmental
Failure of a polygraph test
rules and regulations and recommending that charges
be filed. When an officer fails a polygraph test, is that sufficient
Herek was charged with the violation of six general basis to take disciplinary action against the officer? This
orders of the department: (1) “Conduct Unbecoming was question in the case of Morgan v. Tandy (2000 WL
an Officer” for using vulgarities during interviews 682659, U.S. Dist. Ct. S.D. Indiana). Daniel Morgan worked
with the juveniles; (2) “Conformance to Laws” for dis- as a juvenile probation officer for Shelby County courts.
closing juvenile records to other juveniles during the He was accused of sexual misconduct. Morgan was
Chapter ten: Investigating and complaining of officer misconduct 161

directed to take a polygraph test. After the judges were The court stated that if Morgan had been fired
told that Morgan had “failed” the test, they fired him. because he had decided not to take the polygraph test,
The court, in its decision, noted that the Garrity line or because he had refused to answer certain questions
of cases establishes three core principles. First, if a pub- he found out of bounds, or if his answers were being
lic employee answers his employer’s questions under an offered against him in a criminal case, he might have a
explicit threat that he will lose his job if he invokes his viable claim under the Garrity line of cases.
Fifth Amendment privilege against self-incrimination, He did not allege that any of those things happened.
his answers cannot be used against him in a criminal Morgan did not cite and the court did not find any cases
proceeding. Second, unless a public employee has been extending Garrity and its progeny to the point that an
given at least use immunity for his answers to questions, employee who has answered questions—even under
he may not be fired for invoking his Fifth Amendment coercive circumstances—may prohibit an employer
privilege. Third, however, if the public employee has from considering those answers in making decisions
been given at least use immunity, he may be fired if he about his employment. Because there was no set of facts
continues to refuse to answer questions that are specifi- consistent with his complaint that Morgan could estab-
cally, directly, and narrowly related to his performance lish to prove Count I of his complaint, it failed to state a
of official duties. claim for relief.
The court also noted that in Garrity itself, police offi- The second way would be for Morgan to show he
cers were questioned about allegedly fixing traffic tick- was fired for exercising his Fifth Amendment privilege,
ets. The officers were told they would be discharged if which would require him to show that the defendants
they refused to answer questions about the allegations. questioned Morgan about his job, that Morgan exercised
Faced with that prospect, the officers answered the his Fifth Amendment privilege against self-incrimina-
questions. The officers’ answers were then used against tion, and that Morgan was fired for exercising his Fifth
them in criminal proceedings resulting in convictions. Amendment privilege. There was no set of facts consis-
The Supreme Court reversed the officers’ convictions. tent with Morgan’s complaint that would support this
The court’s decision noted that, a year after Garrity, theory. Morgan did not allege he was fired for exercis-
the Supreme Court extended its reasoning to hold that ing his Fifth Amendment privilege. Morgan submitted
where a public employee invokes his Fifth Amendment to the polygraph test. He alleged that he was fired based
privilege against self-incrimination, the employee may on the results of the test.
not be fired for that reason. In Gardner v. Broderick, 392 The court did find, however, that a reasonable pub-
U.S. at 273 (1968), a police officer appeared before a lic official would have and should have understood
grand jury under subpoena to testify about suspected that he could not fire a public employee based on this
bribery and corruption in the police force. Prior to testi- stigmatizing—even poisonous—charge and then pub-
fying, the officer was informed of his Fifth Amendment licize the charge without first giving the employee a
privilege against self-incrimination, but was then asked fair hearing in which he could try to clear his name.
to sign a “waiver of immunity” form. The officer was Subjecting an employee to an ex parte polygraph test is
told that if he did not sign the waiver, he would be fired not equivalent to providing due process of law.
pursuant to a state statute. The officer refused to sign In summation, the court held that, while the results
the waiver and was fired for his refusal. The Supreme of the test could be used, Morgan had a right to a hear-
Court held that the employer violated the officer’s Fifth ing prior to dismissal.
Amendment privilege by firing him for refusing to
waive his privilege against self-incrimination. The court
made clear, however, that as long as the employee was
Interrogation of officers
protected from possible use of answers in a criminal According to Jeffrey Noble and Geoffrey Alpert, the
proceeding, the employer could insist on answers on interrogation of police officers after a use-of-force inci-
pain of dismissal. dent have caused concern among many citizens. The
The court stated that under the Garrity line of concern is that officers receive different treatment from
cases, Morgan could establish a violation of his Fifth other citizens after an encounter involving physical
Amendment privilege in one of two general ways. The force. The normal citizen is interrogated immediately
first would be to show that he was coerced into waiv- after the incident, but law enforcement policy is to pro-
ing his Fifth Amendment privilege by the threat of dis- vide officers with a cooling-off period before they may
charge, that he answered questions based on that threat, be interrogated.5
and that his answers were then used against him in a This law enforcement policy is based on research
criminal proceeding. Morgan did not allege that he had concluding that the psychological trauma of critical
been charged with a criminal offense, let alone that he incidents may create perception and memory distortion.
had been convicted on the basis of his answers. This distortion may result in inadvertent contradictions
162 Police Misconduct: A Global Perspective

in the reports. Experts have concluded that delaying Changing police culture begins with recruitment
interviews of officers for a few hours to several days practices:
should enhance their memory and produce more accu-
rate statements. • Strengthen police recruiting standards and
Noble and Alpert note that this policy differs from procedures to ensure the highest quality law
the practice of immediately questioning civilians. They enforcement officers with the skill sets and per-
point out that conventional wisdom is that interview- sonalities that support a change in the culture
ing or interrogating soon after the events produces of policing.
more accurate and truthful statements and reduces the • Require thorough vetting of police recruits, includ-
opportunity to fabricate a story. ing past employment, criminal record checks, and
The authors noted that when officers use deadly evaluation of psychological fitness to target the
force, proper law enforcement procedures typically skill set needed for effective community policing
require the initiation of at least two concurrent inves- and a culture of respect and inclusion.
tigations to determine the appropriateness of the use of • Increase entry-level education requirements such
force: a criminal investigation, which determines if an as requiring a minimum of a two-year degree.
officer’s use of force constituted a criminal action, and • Starting pay for entry-level positions is not enough
an administrative query, to ensure that the individual to justify a student loan.
followed department policies and procedures.
The authors note that, just as everyone else, police
officers have the right to protect their own interests dur- Summary
ing each of these investigations. However, while officers • Many citizens are reluctant to file a complaint
may assert their own right to refuse to speak with inves- against a peace officer for fear of retaliation.
tigators, they may aggressively seek statements from • Most nations and states within the United States
other citizens during the critical time period soon after have statutes to prevent retaliation or to protect
the incident to get to the truth. Investigators ask for a the complaining citizen.
cooling-off period for officers, but not for any other citi- • The term “complaining citizen” is used as a short-
zen equally impacted by such a stressful event. hand way of describing a person who has filed a
Noble and Alpert propose that, rather than provid- complaint of misconduct against a police officer or
ing a cooling-off period to police while not applying department. It also includes those individuals who
it equally to citizens, agencies should train investiga- are not citizens.
tors to conduct interviews in a manner that recog- • Most states have a standard form for filing a com-
nizes the impact of the traumatic event on witnesses’ plaint against a peace officer or law enforcement
minds. Interviewers should gain information through agency.
a “cognitive interviewing process,” which avoids com- • It is the policy of states to investigate all complaints
mon approaches in which interviewers do most of the of misconduct against law enforcement officers.
talking; questions focus too specifically; witnesses are • Control your emotions when making the com-
discouraged from providing information unrelated to plaint. As noted in the famous Dragnet TV series,
the specific question; interviewers determine question “just the facts, ma’am.”
sequence, sometimes based on a checklist. • Do not engage in “name calling.”
The authors recommend that, rather than focus • Complain in writing. An oral complaint is rarely
on the narrow issue of when and even how to con- effective.
duct an interview following a critical incident, agen- • Complain to the proper authority. A quick internet
cies may find it more important to have strong, strict, search will probably reveal the name of the proper
and clear policies and procedures. Treating all par- authority.
ties fairly and equally will likely result in an increase • Many law enforcement agencies have mediation
in public trust in the police without any reduction in procedures. Mediation is a voluntary process for
the fair and impartial fact finding important in these resolving complaints, and it may involve meeting
investigations. with other community members, police officers,
police administrators, and/or an independent
monitor.
Recruiting • Any allegations of criminal misconduct must be
The President’s Task Force on 21st Century Policing turned over to the police service of the jurisdiction
noted in their summary report that police recruitment and the complainant notified forthwith.
plays a significant role in improving the quality and • Prior to conducting a formal investigation, the
performance of individual officers and departments. authorized employer may attempt to resolve the
Chapter ten: Investigating and complaining of officer misconduct 163

POLICE CORRUPTION, ROLE MALFEASANCE, AND LEWD BEHAVIOR:

DOES THE DEGREE INHIBIT POLICE MISBEHAVIOR?
The function of education itself is to produce a character best suited to the organization of society, that is, best
able to carry out the injunctions of law. Education molds the inner life of the members of society to conform
to their legally imposed outer life.
—Plato.6
Diana Bruns, PhD, Professor,
University of Texas,
Permian Basin

Dr. Diana Bruns has nearly 20 years of experience in higher education teaching in the areas of
research methods; comparative criminal justice systems; race, gender, class and crime; statistics;
criminology; sociology, and drugs and behavior at eight different institutions of higher education.
Diana has been the chairperson of three different criminal justice programs over the past 15 years
and has published in the areas of criminal justice, social work, higher education, sociology, busi-
ness and management. Her research interests include issues in policing (training and education)
and community policing, assessment and leadership in higher education, family violence, and
evaluation research and program development.
She has published over 30 articles in areas of criminal justice, sociology, social work, business,
management and higher education and is the Liaison and Representative for the International
Police Executive Symposium (consultative status) for quarterly annual meetings at the United
Nations meetings in New York City, Geneva, and Vienna including the Commission on the Status
of Women in NYC, New York. Most recently, Dr. Bruns chaired and organized the 25th Annual
Meeting of the International Police Executive Symposium entitled, Crime Prevention and Community
Resilience: Police Role with Victims, Youth, Ethnic Minorities and Other Partners, in Sophia, Bulgaria,
July 27–August 1, 2014 (27 countries and 43 presenters).

Abstract: The relationship between a college education and police performance has found mixed results
in the literature. However, in general, a college degree is associated with higher levels of tolerance, civility,
responsibility, dependability, and maturity. Policy implications for recommending college degrees are dis-
cussed as a means of reducing police misconduct, corruption, and deviance.

INTRODUCTION
Police misconduct and corruption are worldwide issues. Globally, there is a negative correlation between
police corruption and citizen trust in the police. In general terms, police corruption refers to police personnel
who utilize their positions and authority for personal rather than public benefit. More broadly, corruption
refers to any violation of rules even when there is no personal gain, as in perjury, physical abuse of prison-
ers, sexual misconduct, robbery, and racial profiling.7 From 1964 to 1974, the President’s Commission on Law
Enforcement and Administration of Justice, the National Advisory Commission on Criminal Justice Standards
and Goals, and the American Bar Association Project on Standards for Criminal Justice advised that all police
officers obtain a four-year degree. However, over 40 years later, most police departments have ignored such
recommendations. Police misconduct leads to an ineffective police department, which may further result in
the breakdown in intergovernmental cooperation, civil lawsuits, a less trusting community, and damaged
external relations and cooperation.
The intended goals of higher education include:

• Broadening one’s perspective

• Becoming more reliable from an organizational perspective
• Utilizing better judgment
• Promoting greater flexibility in decision-making and positive interaction outcomes
• Being more likely to take initiative
164 Police Misconduct: A Global Perspective

• Becoming more creative in solving problems

• Becoming more humanistic8
• Promoting critical thinking, conceptual development, and moral reasoning9

According to Kuh, Kinzie, Buckley, Bridges and Hayek:10

Student success is linked with a plethora of desired student and personal development outcomes
that confer benefits on individuals and society. These include becoming proficient in writing, speak-
ing, critical thinking, scientific literacy, and more highly developed levels of personal functioning
represented by self-awareness, confidence, self-worth, social competence, and sense of purpose.

The purported intentions of higher education in general are to develop individuals into citizens—a
growth in appreciation for human differences, allegiance to democratic values, a sophisticated sense of iden-
tity.11,12 More eloquently stated:

The product of the activity of the teaching collective consists not only on the total amount of the
graduate’s general and professional knowledge, abilities, skills, and competencies, but also his
physical and mental health, his culture, active social involvement, and civic patriotic qualities.13

For many years, the literature has demonstrated the following findings: College-educated officers are more
ethical than their noneducated counterparts.14,15 Officers with a college degree hold higher service standards and
are more humanistic in their behavior.16,17 Effective strategies for decreasing police misconduct include requir-
ing college education for police officers, promoting ethics, and implementing community policing programs.18
Patterson argues that higher education and policing collaboratively improve police professionalism, account-
ability, and legitimacy on an international level.19 This study explores the possibility that a simple solution to this
worldwide problem of corruption be rectified by requiring police officers to obtain higher education.

BACKGROUND OF STUDY
This study used a phenomenological qualitative approach using content analysis of incidents of police corrup-
tion found in news headlines from a variety of news outlets in 2012 in the United States. While all members of
society are considered to be innocent until proven guilty, examples of news article titles included:

• Sherriff riding around high on methamphetamine with a gun.

• Sexual predator with a badge.
• Police officer on the other side of the law.
• Officer turns back on oath to protect and serve, instead used badge and authority against a citizen and
our system of justice.
• Dirty cops—no one is above the law.
• Cops using drugs, stealing property—even from the dead, committing other acts of corruption, extort-
ing sex from female suspects, soliciting sex for overlooking crimes.
• Endangering the public they take an oath to protect.

GENERAL STATEMENT OF RESEARCH PROBLEM OR PURPOSE

The purpose of this analysis is to determine whether the extent of a college education may impact officer
behavior while on the job, and if this standard should be raised across the board within all departments.
Research Questions:

1. Does the lack of a college education increase the risk of police misconduct?
2. Can raising the requirements for police departments to include candidates having a college education
decrease misconduct on the force?
3. Does the lack of higher education and proper training influence factors such as abuse of power, exces-
sive force, and misconduct?
Chapter ten: Investigating and complaining of officer misconduct 165

LITERATURE REVIEW
The number of police departments in the United States requiring college degrees is surprisingly low (1%).
Approximately 82% of police departments only require a high school diploma/general educational develop-
ment (GED) certificate. Nine percent of U.S. police departments require a two-year degree.20 As of 2014, 36% of
police officers had obtained a four-year degree.21 Nearly 90% of the police chiefs in large police departments
in the United States hold at least a four-year college degree.22
Hickman and Reaves reviewed training academy curricula, finding that 83% of training academies
use interpersonal skills or mediation training;23 98% use ethics training, and 95% have diversity training.
Regarding higher education in general, this is what we do know: Officers who obtain a bachelor’s degree
prior to being hired are less likely to hold supportive attitudes regarding abuse of authority, police corruption,
role malfeasance, and lewd behavior.24 Earlier research suggests that the attitudes of officers who acquired
a degree at any point in their career became slightly more positive and stronger regarding policing issues,
enhanced responses to citizen behaviors, respect for the impact of community-oriented policing, and police
officer information.25 Does a degree inhibit police misbehavior?
The literature is vast with a myriad of similar findings. Officers with less than two years of college
are four times more likely than officers with two or more years of college to face discipline by the com-
mission for moral character or violations.26 College-educated officers perceive their education to be ben-
eficial to their work.27 Officers with no college education (high school only) account for a disproportionate
number of discipline cases.28 Regarding behavioral issues, officers with a college education have fewer
disciplinary problems than officers with a high school diploma/GED.29,30 Officers with a high school
diploma/GED are three times more likely to face commission discipline than those with an associate’s or
bachelor’s degree.31
Additional support for an argument for an educated global police force includes the view that a college
degree creates an environment where one can analyze alternative resolutions to moral and ethical dilemmas
in policing.32,33 As cognitive development increases, so does functioning in ethical decision-making.34

METHODOLOGY
The study, which is qualitative in nature, is a review of archival data/documents comprised of 122 cases of
police misconduct and/or corruption (out of hundreds) randomly selected from hundreds of nationwide
cases of police misconduct/corruption in 2012. The study began with 150 sample headlines, but some were
disqualified due to incomplete information regarding the level of education of the subject of the headline. As
a result, 122 headlines were reviewed in the study. Content came from news headlines located in 28 different
states, where department sizes ranged from 15,000 to 34,500 officers. Public records were reviewed for the
emergence of officers who committed acts of misconduct and whether or not they held a four-year college
degree.

FINDINGS AND INTERPRETATION

Demographic information and level of education
The average age of the person(s) referred to in the news headlines was 38 years (M = 38.54; SD = 10.24) with
ages ranging from 22 to 63 years. Males represented 88.5% (n = 108) of the sample, with females representing
11.5% (n = 11). Nearly 70% of subjects were Caucasian, with 18% African American and 13% Hispanic. Of the
122 cases, 92% of officers had a high school diploma or a GED. The remaining 10 officers in the study had some
college degree or a bachelor’s degree. Based on the large variation in sample size, tests for group differences
were not attempted (Tables 10.1 and 10.2).

ACTS OF MISCONDUCT AND CORRUPTION

While all types of misconduct and corruption can be found in Tables 10.3 and 10.4, the most frequently found
forms of misconduct included the possession of stolen weapons (11.5%), misuse of police authority (9.8%),
obstruction of federal investigations (8.2%), felony drug trafficking (8.2%), and extortion (8.2%).
166 Police Misconduct: A Global Perspective

Table 10.1 Description of the sample

Age M = 38.54, SD = 10.24 Range (22–63)
Gender Male n = 108 88.5%
Female n = 14 11.5%
Race/ethnicity Caucasian 68.9%
African American 18.0%
Hispanic 13.1%

Table 10.2 Frequencies and percentages of educational

attainment
Education level f Percentage
High school/GED 112 91.8%
Some college 4 3.3%
Bachelor’s degree 6 4.9%
Note: N = 122.

Table 10.3 Frequencies and percentages of act of

misconduct/corruption
f Percentage
Possession of stolen guns 14 11.5%
Misuse of police authority 12 9.8%
Obstruction of federal 10 8.2%
investigation
Felony drug trafficking 10 8.2%
Extortion 10 8.2%
Stealing property while serving 8 6.6%
warrants
Drug conspiracy 8 6.6%
Solicitation of prostitutes 6 4.9%
Falsifying drug charges 6 4.9%
Violating civil rights 6 4.9%
Public corruption 4 3.3%
Domestic violence 4 3.3%

Table 10.4 Other acts of misconduct/corruption

Sexual abuse of minors
Accepting bribes over $5000.00
Caught having sex in squad car with minor
Stealing government funds
Custodial sexual misconduct
Viewing child pornography in squad car
Robbery of drug dealers set up to look like raid
Bank robbery
DUI in squad car
Public indecency on duty
Stealing money at traffic stop
Disorderly conduct
Coercing women into sex as bribe
Plotting to kidnap and cook women—cannibalism (n = 1)
Chapter ten: Investigating and complaining of officer misconduct 167

CONCLUSION
Even with the advancement toward a professional policing organization in the last 20 years, there is little
agreement on how a college education fits in with recruitment, hiring, training, and promotions. Higher edu-
cation has been seen by many as a pathway to better performance and increased professionalism, while also
helping to decrease police misconduct. The standard high school (GED) requirement for most departments
was instituted when most of the general population either had one as well or did not even finish high school.
In today’s highly competitive labor market, over 25% of the general population possess at least a baccalaure-
ate degree.35 However, the policing field has not followed the same percentage increase. This has actually put
the policing field at an extreme disadvantage when it comes to recruitment. Furthermore, it has (in the eyes of
some) created a negative perception of the professional organization.
With the paradigm shift in society, technology, and organizational design, the policing field needs higher
educated officers to be able to understand the new global environment. As stated earlier, higher education and
increased performance (anticorruption) is mixed; however, the skills necessary for the new complex world of
policing are enhanced through a college education. It is recommended that the design and implementation
of training programs increases the integrity of both recruits and officers.36 Great thought must be put into
the nature and type of education officers receive before they become police officers.37 Another issue to be
addressed regarding the corruption problem is that many corrupt officers had issues prior to hire and should
not have been employed in the first place. Promoting cognitive development (moral, conceptual, ego) among
recruits has implications for society in terms of potential deterrence of corruption.38
Worldwide anticorruption programs must be merged with identified efforts to professionalize police
forces.39 Recruitment, selection, and training are the foundations of a professional policing organization. They
are the building blocks for any corruption-free department. An external oversight committee with the ability
to investigate, hold individuals responsible for their actions, and dispense consequences would remove inter-
nal cultural complications (related to internal policing culture—the “thin blue line”). Just as in professional
sports, when the team does not win, it is time to bring in new leadership. A corruption-free environment
requires leadership from the top. There must be a vocal leadership leading from the front insisting on change
and leading by example. It is essential that senior leadership be held responsible for what occurs under their
supervision. From an organizational standpoint, targeting corruption (unfreezing the organization) can help
to change the behaviors (making changes) and improve outcome measurement (refreezing the organization).
A final recommendation rests upon expanding into a global community policing structure. The public
can be one of a department’s best sources of information regarding corrupt behavior. This would allow for
a more informed public and a better external relationship between the two entities/parties. The idea is to
develop a win-win outcome for both sides. The policing field will be perceived as more professional (and
a vested interest will be established, thereby changing the attitudes of officers toward the occupation). The
public will believe that the police are there to offer assistance instead of focusing on the “us versus them”
perception.
This study is not without limitations, as it is exploratory in nature and the findings cannot be generalized
to police officers across the country, because this study did not involve a random sample of all news services
across the United States. Furthermore, it is virtually impossible to find all cases of misconduct/corruption
across U.S. police departments as well as the level of education and training of the officers involved.
An ending note to reflect on:

• If we require higher education, does the quality of education matter? We must take this into consid-
eration with both online and traditional classroom settings. This may be variable in determining the
impact of higher education.40

matter informally with the consent of the com- • One of the leading cases on seeking documents
plainant and the peace officer(s) involved. from a police department’s internal affairs
• About 6 in 10 complaints received by sheriffs’ unit is Jaramillo v. City of San Mateo. In this civil
offices resulted in officers being exonerated (32%) rights case, alleging excessive force and retalia-
or the complaint being unfounded (30%). One-fifth tion by City of San Mateo police officers, plaintiff
of complaints were not sustained. Jaramillo sought to discover documents relating to
168 Police Misconduct: A Global Perspective

his arrest, including San Mateo’s “Internal Affairs” Symposium on Postsecondary Student Success:
documents. Spearheading a Dialog on Student Success. National
• Most U.S. states and nations have established a bill Postsecondary Education Cooperative, p. 5.
11. Magdola, B. (2004) Self-authorship as the common goal
of rights for law enforcement officers.
of the 21st century education. In Learning Partnerships:
• A police officer may not be required to testify if Theory and Models of Practice to Educate for Self-Authorship.
such testimony will cause him or her to incriminate Sterling, VA: Stylus.
him- or herself. However, the protection against 12. Kuh, G., Kinzie, J., Buckley, J., Bridges, B., and Hayek,
self-incrimination does not extend to the cases F.A. (2006) What matters to student success: A review
where the police officer gives a false statement. of the literature. Commissioned report for the National
Symposium on Postsecondary Student Success:
Spearheading a Dialog on Student Success. National
Discussion questions Postsecondary Education Cooperative.
13. Popova, S. and Rozov, N. (2012) Improving upbringing
1. Why should a person keep rational when filing a activity in an institution of higher learning. Russian
complaint against a law enforcement officer? Education and Society, 54(11), 65–79.
2. Why should complaints be made in writing? 14. Tyre, M. and Braunstein, S. (1992) Higher education and
3. What is the purpose of peace officers’ bills of ethical policing. FBI Law Enforcement Bulletin, 61, 6–10.
rights? 15. Shernock, S. (1992) The effects of college education for
4. Should law enforcement officers be allowed be police entry level and promotion: A case study. Journal of
required to testify on matters that would incrimi- Criminal Justice Education, 3, 71–92.
16. Miller, J. and Fry, L. (1976) Reexamining about education
nate themselves? Justify your answer.
and assumptions about education in law enforcement.
Journal of Police Science and Administration, 4, 187–196.
17. Regoli, R. (1976) The effects of a college educa-
References tion on police cynicism. Journal of Police Science and
1. Mathew Hickman (June, 2006) BJS special report: Citizen Administration, 4, 340–345.
complaints about police use of force. Washington, DC: 18. Hunter, R. (1999) Officer opinions on police misconduct.
U.S. Department of Justice. Journal of Contemporary Criminal Justice, 15, 155–170.
2. As reported on Fraternal Order of Police website at 19. Paterson, C. (2011) Adding value? A review of the interna-
http://www.fop.net/legislative/issues/leobr/index. tional literature on the role of higher education in police
shtml. Accessed on October 1, 2015. training and education. Police Practice and Research, 12(4),
3. As reported on the CATO Institute website at http://www. 286–297.
policemisconduct.net/one-bill-of-rights-for-you-two- 20. Reaves, B. (December, 2010) Local Police Departments, 2007.
bills-of-rights-for-them/. Accessed on October 1, 2015. U.S. Department of Justice: Office of Justice Programs.
4. As reported on the Huffington Post website in an 21. United States Bureau of the Census, Current Population
article entitled “Take a look at the Law Enforcement Survey. (2014) http://www.census.gov.
Officers’ Bill of Rights” posted at http://www.huff- 22. Benson, B. (2004) View from the top: The frustrations of
ingtonpost.com/2015/04/27/law-enforcement-bill-of- police chiefs, and how to solve them. The Police Chief, 71(8).
rights_n_7153106.html. Accessed on October 1, 2015. 23. Hickman, M., and Reaves, B. (2006) Local Police
5. Jeffery Noble and Geoffrey Alpert (September, 2013) Departments, 2003. (NCJ210118). Washington, DC: U.S.
Criminal interrogations of police officers after use-of- Department of Justice, Bureau of Justice Statistics.
force incidents, FBI Law Enforcement Bulletin. 82(9). 24. Telep, C. (2011) The impact of higher education on police
6. Gould, J. (1955) The Development of Plato’s Ethics. officer attitudes toward abuse of authority. Journal of
Cambridge University Press. Cambridge, UK. Criminal Justice Education, 22(3), 392–419.
7. Bayley, D. and Perito, R. (2011) Police corruption: 25. Weisburd, D., Greenspan, R., Hamilton, E., Bryant, K.,
What past scandals teach about current challenges. and Williams, H. (2001) The Abuse of Police Authority: A
Special report for the United States Institute of Peace. National Study of Police Officers’ Attitudes. Washington,
Washington, DC. DC: Police Foundation.
8. Carlan, P. and Byxbe, F. (2000) The promise of human- 26. Delattre, E. (2002) Character and Cops: Ethics in Policing.
istic policing: Is higher education living up to society Washington, DC: AEI Press.
expectations? American Journal of Criminal Justice, 24(2), 27. Rydberg, J., Nalla, M., and Mesko, G. (2012). The per-
235–246. ceived value of a college education in police work in
9. Morgan, B., Morgan, F., Foster, V., and Kolbert, J. (2000) Slovenia. Journal of Criminal Justice and Security, 12(14),
Promoting the conceptual development of law enforce- 408–423.
ment trainees: A deliberate psychological educational 28. Cunningham, S. (2003) Discipline and educational lev-
approach. Journal of Moral Education, 29(2), 203–218. els of law enforcement officers, an exploratory report.
10. Kuh, G., Kinzie, J., Buckley, J., Bridges, B., and Hayek, Paper presented at the 110th Annual IACP Conference,
F.A. (2006) What matters to student success: A review Philadelphia, PA.
of the literature. Commissioned report for the National 29. Aamodt, M. (2004). Research in Law Enforcement Selection.
Boca Raton, FL: Brown Walker Press.
Chapter ten: Investigating and complaining of officer misconduct 169

30. Fullerton, E. (2002) Higher education as a prerequisite to 36. Bayley, D. and Perito, R. (2011) Police corruption: What past
employment as a law enforcement officer. Dissertation, scandals teach about current challenges. Special report for
University of Pittsburgh. the United States Institute of Peace. Washington, DC.
31. Delattre, E. (2002) Character and Cops: Ethics in Policing. 37. Rydberg, J., Nalla, M., and Mesko, G. (2012) The perceived
Washington, DC: AEI Press. value of a college education in police work in Slovenia.
32. Morgan, B., Morgan, F., Foster, V., and Kolbert, J. (2000) Journal of Criminal Justice and Security, 12(14), 408–423.
Promoting the conceptual development of law enforce- 38. Morgan, B., Morgan, F., Foster, V., and Kolbert, J. (2000)
ment trainees: A deliberate psychological educational Promoting the conceptual development of law enforce-
approach. Journal of Moral Education, 29(2), 203–218. ment trainees: A deliberate psychological educational
33. Lynch, G. (1976) The contributions of higher education to approach. Journal of Moral Education, 29(2), pp. 203–218.
ethical behavior in law enforcement. Journal of Criminal 39. Orces, D. (2008) Corruption victimization by the police.
Justice, 4, 285–290. Latin America Public Opinion Project, Americas
34. Rest, J., and Narvaez, D. (1994) Moral Development in the Barometer Insights, 3. www.AmericasBarometer.org.
Professions: Psychology and Applied Ethics. Hillsdale, NJ: Accessed on July 17, 2012.
Lawrence Erlbaum Associates. 40. Roberg, R. and Bonn, S. (2004) Higher education and
35. United States Bureau of the Census. (2010) http://www. policing: Where are we now? Police Strategies and
census.gov. Management, 27(4), 469–486.
Index
1931 National Commission, 40 ASIRT, see Alberta Serious Incident Bruns, Diana, 163
42 U.S.C. § 1983, 54, 90, 129, 131, 140, 142 Response Team (ASIRT) Bryant, Betty, 77
452 U.S. 692, 705, 90 Assault, and battery, 48–49 Bryant, Jashon, 73–81
Associated Press (AP), 94 Buchner, Brian, 146
Associate members, 146 Buckley, J., 164
A
Auciello, Daniel, 79 Buffett, Warren, 31
AAP, see Always Act Professionally (AAP) Avenue Q, 23 Burbank Police Department, 96
ABC news, 91 Bureau of Justice Statistics (BJS), 70, 86, 153
Abella, Gustavo, 97, 98 Burnett, Aaron, 73
B
Abella v. Simon, 97 Bush, George H. W., 12
Absolute immunity, 135 Baez, Richard, 97
Abusive interrogation, 95–97 Baker, Newton, 27
C
Academic academy/problem-based Baltimore, Arrid, 136
academy, 41 Baltimore, Saran, 136, 137 Caldwell, William James, 50
Action–Response to Resistance/Aggression Baltimore v. City of Albany, Georgia, 136 California Civil Rights Handbook, 151
Model, 56 Bandy, Robert, 30 California Highway Patrol, 91
Addressing Sexual Offenses and Basilio v. City of Philadelphia, 99 California Penal Code §13519.4, 152
Misconduct by Law Bayley, David, 4, 7, 8, 22, 107 California Penal Code §832.5, 151
Enforcement, 94 BBC, see British Broadcasting Corporation California State University, Sacramento
Afghan national police (ANP), 6, 107 (BBC) (CSUS), 31
Airborne Division, 30 Beaudin, Patricia, 75, 76, 78, 79 Canada, police misconduct in, 111
Alberta Law Enforcement Review Bencosme, Virgilio, 155 Canada’s Peace Officer Act, 152–153
Board, 112 Bills of rights, 156–159 Canadian Charter of Rights and Freedoms,
Alberta Serious Incident Response Team Bivens v. Six Unknown Named Agents of the 111, 113
(ASIRT), 112 Federal Bureau of Narcotics, 129 Canadian review boards, 146
Alfred the Great, 19 BJS, see Bureau of Justice Statistics (BJS) Carson, 62
Alpert, Geoffery, 91, 161, 162 Black Americans, 32 Carter, Steven, 81
Always Act Professionally (AAP), 7 Black Panther, 12 Caruth police institute, 31
American Bar Association Project on Blair, Tony, 86, 96, 97 Castaway, Paul, 68
Standards for Criminal Justice, Blind Beak, see Fielding, John Cato Institute, 85, 94
40, 163 Bloomberg News, 38 CCRB, see Civilian Complaint Review Board
American Civil Liberties Union, 120 Bobbies, 20 (CCRB)
American College of Emergency Bocanegra, Frank, 97, 98 CEDs, see Conducted energy devices
Physicians, 73 Bohrer, Shannon, 71 (CEDs)
American Municipal Association, 27 Bolling, 34 Center on Juvenile and Criminal Justice, 68
American Railway Union, 29 Bowen, Jerry, 137, 138 Centers for Disease Control and
America’s police forces, militarization of, Bowling Green University, 50 Prevention, 68
10–12 Bow Street Runners, 19 Chaney, Robert, 71
Anonymous complaints, 152–153 Bratton, Bill, 25 Charney, Darius, 146
ANP, see Afghan national police (ANP) Bratton, William, 148 Chicago Police Department, 95, 118
AP, see Associated Press (AP) Brazil, arbitrary police actions in, 105–106 Chicago police officers, 3
Appellate Division Second Department, 154 Brazilian Association of Investigative Church Arson Prevention Act of 1996, 133
ARD, see Arrest-related deaths (ARD) Journalism, 105 Cincinnati, robberies in, 17
program Brazilian Institute of Geography and CIT, see Crisis intervention training (CIT)
Argentina, arbitrary arrests in, 103–104 Statistics (IBGE), 105 Citizen complaints, 4
Argentina Federal Code of Criminal Brennan, 129 Citizen review boards, 145–148
Procedure, 103–104 Bridges, B., 164 Canadian review boards, 146
Argentine Federal Police (PFA), 104 British Broadcasting Corporation (BBC), 53 functions of, 145
Arrest-related deaths (ARD) program, 70–71 Brown, Judith, 92 investigative bodies and prosecutorial
highlights, 70 Brown, Michael, 10, 23, 25, 65 power, 146–147
methodology, 71 Brown, Susan, 92 investigative powers of oversight groups,
Article 25 Obstruction of Justice, 106 Brown v. City of Pinellas Park, 91 147–148

171
172 Index

National Association for Civilian Conducted energy devices (CEDs), 51 duty to provide medical assistance, 72
Oversight of Law Enforcement Connecticut Forensic Laboratory, 74, 76, 77 excited delirium syndrome, 72–73
(NACOLE), 145–146 Connecticut General Statutes, 73, 74, 79, killing, 67–68
United Kingdom review boards, 146 80, 81 perceptions of, 71–72
City Charter §§ 802, 805, 155 Connecticut Police Department, 73 police liable, 69–70
City Council legislation, 155 Connecticut State Police, 74 probable cause, 67
City of Montreal Police Service, 111 Connelly, John A., 74 report, 73–81
Civil action, for deprivation of rights, 131 Coolidge, Calvin, 22 circumstances of incident, 74–80
Civilian Complaint Review Board (CCRB), COPS, see Community Oriented Policing determination of, 80
20, 147, 154 Services (COPS) further action, 81
Civil liability, for police misconduct, Corruption, 98–99; see also Police use of, 65–67
129–143 corruption Deady, John, 92
of cities and police departments, 134 extent of police, 4–6 Deaths in Custody Reporting Program
civil rights actions, 129–131 agencies, 4–6 (DCRP), 70
color of law, 131–134 noble-cause, 7 Debs, Eugene, 30
filing complaint, 131–134 dangers of, 7 Delley, Malva R., 21
immunity, 135–139 Dirty Harry syndrome, 7 Delsol, Rebekah, 85, 96
absolute, 135 incident, 7 Department Advocate’s Office (DAO), 147
affirmative defense, 138–139 predicable forms of, 7–8 Department of Criminal Justice, 122
Messerschmidt v. Millende, 137–138 and public relief, 20 Department of Defense, 12
qualified, 135 Corruption Perception Index (CPI), 108 Department of Human Resources, 61
rationale for, 138 Counseling, 59 de Souza, Amarildo, 105
Saucier v. Katz, 135–136 Counterinsurgency (COIN), 109 Detroit riots, of 1967, 30
Wynn v. City of Lakeland, 136–137 County of Sacramento v. Lewis, 140 Diaz, Jaime, 79
state law torts, 131 Court of Appeals for the Ninth Circuit, 50 Dinkins, David Norman, 154
summary judgment, 134–135 Court of Special Sessions, 29 Dirty Harry syndrome, 7
victim’s conduct, 139–141 Cowdery, James T., 75, 76 District Attorney’s Office, 99
more-specific-provision rule, 140–141 CPI, see Corruption Perception Index (CPI) Division of Criminal Justice, 80
Civil rights, 117–119, 129–131 Crabtree, Lewis, 80 The Documentary, 43, 104
Civil Rights Act of 1957, 118 CRCC, see Complaints Commission for the DOJ, see U.S. Department of Justice (DOJ)
Civil Rights Act of 1964, 11 Royal Canadian Mounted Police Dorsey, Julius L., 33
Civil Rights Division, 117, 118, 121 (CRCC) Doyle, Michael, 117
Civil Rights Enforcement Section, 151 Crestview Police Department, 62 Dragnet, 1
Civil Rights Movement, 37 Crime Control Act of 1994, 134 Drugs, 8
Cleveland, Grover, 30 “Crime Prevention and Community Dunlay v. Philadelphia Newspapers, 155
COIN, see Counterinsurgency (COIN) Resilience: Police Role with Durose, Matthew, 86
College-educated officers, 164 Victims, Youth, Ethnic Minorities
Collins, James, 30 and Other Partners”, 163
E
Collins, Jim, 125 Criminal convictions, 117
Colorado Springs Police Department, 56 Criminal Justice Matters, 85, 96 Echols, Kelsey, 73
Color of law, 5, 132 Criminal Law Division, 151 Economist, 65
Comey, William J., 24 Criminal misconduct, 153 ECW, see Electronic control weapon (ECW)
Commissioner of the Department of Crisis intervention training (CIT), 16 Edwards, George, 30
Investigation, 155 Crown Law Office, 113 Electronic control weapon (ECW), 81, 51
Commission on Ethics, 97 CSUS, see California State University, Eleventh Circuit Court of Appeals, 134,
Commission on Law Enforcement and Sacramento (CSUS) 136, 143
Administration of Justice, Curtis, Irene, 53 Emergency medical services (EMS), 72
39, 40, 163 Employer-initiated investigations, 153
Commonwealth v. Luna, 7 EMS, see Emergency medical services
D
Community-based Strategic Policing in (EMS)
Canada, 111 Dahlia v. Rodriguez, 95 English Parliament, 19, 20
Community Oriented Policing Services Dallas Crime Stoppers, 21 ERC, see External Review Committee (ERC)
(COPS), 15, 16, 51, 126, 147 Dallas Police Department, 31, 43 Eterno, John A., 100
Complaint DAO, see Department Advocate’s Office Evers, Medgar, 118
dispositions, 153–154 (DAO) Excessive force, 5
process, 151–153 DCRP, see Deaths in Custody Reporting Excited delirium syndrome (ExDS), 72–73
Canada’s Peace Officer Act, 152–153 Program (DCRP) External Review Committee (ERC), 112
filing effective complaint, 152 Deadly force, 49, 65–83
filing misconduct complaint, 151–152 arrest-related deaths (ARD) program,
F
mediation, 152 70–71
racial profiling, 152 highlights, 70 FACE, see Freedom of Access to Clinic
unidentified officer, 152 methodology, 71 Entrances (FACE) Act
Complaints Commission for the Royal assessment of, in Philadelphia Police Fachner, George, 81
Canadian Mounted Police (CRCC), Department, 81–82 False arrest, and fabrication of evidence, 5
146 in Canada and United States, 113–114 False Statement in The Second Degree
Compstat, 100, 101 deaths that caused public outcry, 68–69 53a-167a, 79
Index 173

False testimony, 98 Georgetti, Michael, 79 Human rights problems, 9–10, 105–106,

Fardon, Zachary, 118 Getty, Ryan, 31 109, 145
FBI, see Federal Bureau of Investigation (FBI) Global Corruption Barometer 2013 Human Rights Watch organization, 38
FBI Law Enforcement Bulletin, 3 Report, 103
FDA, see Food and Drug Administration Glover, Henry, 119
I
(FDA) Golodner v. Berliner, 98
Federal Bureau for Criminal Policies, 104 Good to Great and the Social Sectors, 125 IA, see Internal affairs (IA)
Federal Bureau of Investigation (FBI), 4, 5, Gore, Al, 135 IAC, see International Anti-Corruption Day
23, 26, 66, 69, 82, 101, 131 Göttingen University, 108 (IAC)
Federal Bureau of Narcotics, 129 Gould, Jon, 88 IACP, see International Association of Chiefs
Federal District Court, 50 Graham v. Connor, 51, 53–54, 55, 93, 140 of Police (IACP)
Federal explosives control statute, 133 Grand Jury Panel, 74, 76, 78 IAD, see Internal Affairs Division (IAD)
Federal Gun Task Force, 73 Gray, Freddie, 156 IADLEST, see International Association of
Federal Rules of Civil Procedure, 134, 156 Great Railroad Strike of 1877, 29 Directors of Law Enforcement
Ferguson effect, 10 Great Upheaval, see Great Railroad Strike Standards and Training
Ferguson Police Department (FPD), 11 of 1877 (IADLEST)
Fielding, Henry, 19 Green, Eric, 137 IBGE, see Brazilian Institute of Geography
Fielding, John, 19 Griffith, David, 9 and Statistics (IBGE)
Field-training officers (FTOs), 42, 43 Griffiths, Sherman, 7 IIO, see Independent Investigations Office
Fifth Amendment, 161 Groark, Matthew, 99 (IIO)
Filed Training and Evaluation Program, see Groark v. Timek, 99 Illinois Crime Survey, 38
FTO program Guardian, 51 Illinois Regional Air Support Service
Findley, Keith, 85 Guimaraes, Ribeiro, 105 (IRASS), 6
First Amendment, 98 Gunshot wounds, 76–77 Immunity, 135–139
Florida statute §112.532(1), 151 Gupta, Vanita, 118 absolute, 135
Florida Supreme Court, 92 Gypsy cops, 41 affirmative defense, 138–139
Follow Policies and Procedures (P&P), 7 Messerschmidt v. Millende, 137–138
Food and Drug Administration (FDA), 86 qualified, 135
H
Force, excessive use of, 47–63 rationale for, 138
establishing, 47–51 Haas, Robert, 31 Saucier v. Katz, 135–136
assault and battery, 48–49 Haitian national police, 6 Wynn v. City of Lakeland, 136–137
right to resist unlawful arrest, 49–51 Harlem riot of 1943, 30 In Defense of Animals, 135
legal guidelines on, 53–56 Harlow v. Fitzgerald, 138 Independent, 107
Mullenix v. Luna, 55–56 Hartford Hospital, 78 Independent Investigations Office (IIO), 112
progressive discipline and accountability Hartford Police Department, 74–75, Independent Police Complaints Commission
in police agencies, 58–61 78–80 (IPCC), 53, 146
research on police, 56–57 Hartford Police Evidentiary Services Independent Police Review Authority
use of tasers, 51–53 Division, 75, 77 (IPRA), 3
in Great Britain, 53 Harvard Law School, 27 Industrial Revolution, 21
Formal discipline procedures, 59–61 Hate crimes prevention act, 132 Informal resolution, of complaints, 153
Forrest Gump, 31 Hawkins, Mack, 75, 79 Ingram, Jason, 56
Fourteenth Amendment, 121, 141, 159 Hayek, F. A., 164 In Re Furlow, 97
Fourth Amendment, 5, 11, 50–52, 54–55, Hayes, Rutherford Birchard, 29 Institute of Urban Dynamics, 33
66–67, 90, 92–93, 129, 130, 135–137, Hayes Housing Project, 33 Intelligence Division, 75
139, 140 Haymarket Square riot, 29 Internal Affairs Division (IAD), 3
FPD, see Ferguson Police Department (FPD) Healy, 26 Internal affairs (IA), 61, 99
Fraternal Order of Police, 156 Hemet Police Department, 139 Internal Revenue Service (IRS), 86
Freedom of Access to Clinic Entrances Henry, Brandon, 73, 74, 75, 78–79, 81 International Anti-Corruption Day (IAC), 106
(FACE) Act, 133 Herek, Scott, 160 International Association of Chiefs of Police
FTO program, 42 Herek v. Village of Menomonee Falls, 160 (IACP), 47, 94
FTOs, see Field-training officers (FTOs) Her Majesty’s Inspectorate of Constabulary International Association of Directors of
Fyfe, James, 1 (HMIC), 146 Law Enforcement Standards and
Hickman, M., 165 Training (IADLEST), 15, 16
Hispanic origin, of persons, 87 International human rights, 9, 106, 114
G
HMIC, see Her Majesty’s Inspectorate of International Police Executive
Gallegos, Gilbert, 156 Constabulary (HMIC) Symposium, 163
Garcia, Angel, 79 HN, see Host nation (HN) security forces IPCC, see Independent Police Complaints
Gardner v. Broderick, 159, 161 Holliday, George, 1 Commission (IPCC)
Garner, Eric, 23, 25 Holmes, 159 IPRA, see Independent Police Review
Garrity v. New Jersey, 159, 160 Holroyd, Jules, 85, 96 Authority (IPRA)
Gates, Daryl, 12 Hoover, Herbert, 27 Iraqi police, 6
GED, see General educational development Hornsby, Ire, 137 IRASS, see Illinois Regional Air Support
(GED) Host nation (HN) security forces, 108, 109 Service (IRASS)
Gender profiling, 88 Howard v. Dickerson, 72 Irlbeck, Dawn, 88
General educational development (GED), HRW, see Human Rights Watch (HRW) IRS, see Internal Revenue Service (IRS)
165, 167 Hudak, Ed, 91 Italiano, Robert, 119
174 Index

J Liberia, police corruption in, 109 gender, 88

Linear design, 56 racial, 88
Jaramillo v. City of San Mateo, 156 Liu, Wenjian, 23, 25 sexual misconduct, 94–95
John Bad Elk v. United States, 49 Lockett v. New Orleans, 47 stop and frisks, 89–90
Johnson, Carl, 28 London Evening Standard, 107 traffic stops, 86–87
Johnson, Lyndon Baines, 30 Long, Andrew, 137 Misprision of a felony, 47
Judicial Commission of Inquiry, 7 Long v. Baker, 49 MOI, see Ministry of Interior (MOI)
Justice Department, 9, 10 Los Angeles County Sheriff’s Department Mollen, Milton, 154
(LASD), 96 Mollen Commission, 154, 155
K Los Angeles Police Department (LAPD), 12, Molotov cocktail, 33
38, 63 Money laundering
Kanfer, Ira, 76, 77 Louisiana Air National Guard, 47 former Illinois police chief sentenced
Kankakee County Sheriff’s Office, 6 Luna, Carlos, 7 for, 6
Kansas Supreme Court, 92 LVMPD, see Las Vegas Metropolitan Police former Indiana law enforcement officials
Kefauver, Estes, 27 Department (LVMPD) sentenced for, 86
Kefauver hearings, on organized crime, Lynch, Loretta E., 117, 118 former Texas sheriff sentenced for, 87
27–28 Moore, Mark, 26
Kelling, George, 26 Morano, Christopher, 74
Kelly, Robin, 19 M
More-specific-provision rule, 140–141
Kelly, Shelly, 137 McAuliffe v. New Bedford, 159 Morgan, Daniel, 160
Kennedy, Robert, 23 McCabe, Travis, 119 Morgan v. Tandy, 160
Kerner Commission, 30 McCain v. Florida Power Corp., 91 Morrison, 78
Kerner report, 32, 33 McCormick Harvesting Machine Motion to Compel Discovery, 99
King, Martin Luther, Jr., 23, 26, 118 Company, 29 Muehler v. Mena, 90
King, Rodney, 1 McKenney v. Harrison, 52 Mullenix v. Luna, 55–56
King incident, 1 McManus, Michael, 28, 29 Murphy, Jon, 95
Kinzie, J., 164 McRae, Gregory, 119
Knapp Commission, 38, 154–155 Maher, Michael, 28
Knowledge, skills, and abilities N
Major Crimes Division, 76, 79
(KSAs), 123 Malaya, police force in, 110 NACOLE, see National Association for
Koch, John, 78 Malayan Communist Party, 110 Civilian Oversight of Law
Koeiman v. City of New York, 62 Malicious prosecution, 99 Enforcement (NACOLE)
KSAs, see Knowledge, skills, and abilities Manitoba’s Law Enforcement Review National Advisory Commission on Civil
(KSAs) Agency, 112 Disorders, 32
Kuh, G., 164 Martin, Rich, 3, 4 National Advisory Commission on
Kumssa, Asfaw, 103 Mastrofski, Stephen, 88 Criminal Justice Standards and
Kumstar, Joseph, 86 Mattos v. Agrano, 51 Goals, 40, 163
May, Theresa, 119 National Association for Civilian Oversight
L Media, 8–9 of Law Enforcement (NACOLE),
Mediation, 152 145–146
Labor Day, 30 Melekian, Bernard, 126 National Center for Health Statistics, 68
Labor Relations Division, 61 Melendez, Raphael, 75 National Commission on Law Observance
Lake County Sheriff’s Department, 86 Messerschmidt v. Millende, 137–138 and Enforcement, see Wickersham
Lambsdorff, Johann, 108 Metropolitan Airports Commission, 52 Commission
Langer, Marie-Astrid, 10 Mexican police, 6, 104 National Crime Victimization Survey
Langton, Lynn, 86 Michigan v. Summers, 90 (NCVS), 89
LAPD, see Los Angeles Police Department Militia groups, 105 National Criminal Justice Reference
(LAPD) Miller, Laurence, 69 Service, 16
LAPD Christopher Commission, 38 Ministry of Interior (MOI), 107 National Decertification Database (NDD), 16
LAPD Rampart Scandal, 38 Ministry of Justice, 105 National Fraternal Order of Police, 68
LASD, see Los Angeles County Sheriff’s Misconduct, types of, 85–102 National Guard, 33
Department (LASD) abusive interrogation, 95–97 National Institute of Justice, 47, 49, 56
Las Vegas Metropolitan Police Department other, 97–101 National Law Enforcement Officers
(LVMPD), 120, 121, 126 corruption, 98–99 Memorial, 25
Law enforcement executing search warrants, 99 National Police Misconduct Reporting
agencies, 14, 15, 16 false testimony, 98 Project, 85
officers, 47 malicious prosecution, 99 National Police Misconduct Statistics and
and race, 23 retaliation, 97–98 Reporting Project (NPMSRP),
Law enforcement officers’ bill of rights, stealing money, 97 86, 94
156–159 police performance management and Native Americans, 68
Lawlor, Robert, 73, 74, 75, 76, 79–80 crime report manipulation, NCOs, see Non-commission officers (NCOs)
Lee, H., 69 100–101 NCVS, see National Crime Victimization
Lee, Henry C., 77, 80 police pursuits Survey (NCVS)
Leger, 78 high-speed, 91–93 NDD, see National Decertification Database
Lewin, Albert, 7 police searches, 88–89 (NDD)
Lewis v. City of St. Petersburg, 134 profiling, 87–88 Negroes, 35–36, 37
Index 175

Newark Police Department (NPD), 97 P bribery on, 103

New Deal relief program, 20 in Liberia, 109
New London Police Department, 98 P&P, see Follow Policies and Procedures in nation building, 107–108
New Orleans Police Department (NOPD), (P&P) organizing international police force,
47, 119 Pakistani police, 5 108–109
New York mayor’s authority, and police Paoline, Eugene, 56 leader recruiting and selection,
corruption, 154–155 Parent, Rick, 111 108–109
New York Police Department (NYPD), 25, Parker, William H., 47 personnel accountability, 109
38, 44, 89, 147 Pasco, Jim, 68 people smuggling, 110
New York Post, 99 Patrolmen’s Benevolent Association police misconduct in Canada, 111–114
New York State National Guard, 30 (PBA), 155 research on foreign aid policies, 108
New York Times, 20, 28, 29, 107 PBA, see Patrolmen’s Benevolent Association world, 107
New York Times Co. v. Sullivan, 155 (PBA) Police crime reports, 100–101
NGOs, see Nongovernmental organizations Peace Officer Act, 153 Police defamation, 155
(NGOs) Peace Officer and Standards Training Police Executive Research Forum (PERF),
Nigerian police, 4–5 (POST), 16 51, 120
Night watch system, 21 Peace Officer Program, 152 Police force, in Malaya, 110
Ninth Circuit, 90, 136, 140 Peak, Ken, 122 Police Magazine, 9
Nix, Justin, 10 Pearson v. Callahan, 135 Police misconduct, 122–126, 163–167
Nixon, Richard, 12 Peart, Nicholas, 89 in Canada, 111–114
Noble, Jeffrey, 161, 162 Peel, Robert, 3, 20 civil liability for, 129–143
Noble-cause corruption, 7 Penaranda, Edgar, 95 of cities and police departments, 134
dangers of, 7 Pendleton Act, 22 civil rights actions, 129–131
Dirty Harry syndrome, 7 People smuggling, 110 color of law, 131–134
incident, 7 People v. Anthony, 155 immunity, 135–139
Non-commission officers (NCOs), 108–109 People v. Marchetta, 159–160 state law torts, 131
Nongovernmental organizations (NGOs), Perez, Jose Jesus, 62 summary judgment, 134–135
105 Perito, Robert, 4, 7, 8, 22, 107 victim’s conduct, 139–141
NOPD, see New Orleans Police Department PFA, see Argentine Federal Police (PFA) extent of police corruption, 4–6
(NOPD) Philadelphia Inquirer, 155 agencies, 4–6
North Atlantic Treaty Organization, 4 Philadelphia Police Department (PPD), Ferguson effect, 10
North Texas Crime Commission (NTCC), 21 81–82, 155 historical analysis of, 19–44
Nova Scotia Police Review Board, 112 Phillips, Virginia A., 62 brutality, 28–30
Novaya Gazeta, 107 Pinellas County Sheriff’s Department, 92 corruption, 22–28
NPD, see Newark Police Department (NPD) PIT, see Precision Intervention Technique development of police departments,
NPMSRP, see National Police Misconduct (PIT) 19–21
Statistics and Reporting Project Plumhoff v. Richard, 55, 95, 101 future of policing considerations,
(NPMSRP) PNAC, see Positive Neighborhood Action 31–43
NTCC, see North Texas Crime Commission Committee (PNAC) reform movement, 22
(NTCC) Police agencies, progressive discipline and investigating and complaining, 151–168
NYPD, see New York Police Department accountability in, 58 discovery requests, 156
(NYPD) Police brutality, history of, 28–30, 49 dispositions, 153–154
NYPD Mollen Commission, 38 Detroit riots of 1967, 30 interrogation of officers, 161–162
Great Railroad Strike of 1877, 29 investigating police misconduct,
Harlem riot of 1943, 30 154–156
O Haymarket Square riot, 29 law enforcement officers’ bills of
Obama, Barack, 12, 14, 24 Pullman strike of 1894, 29–30 rights, 156–159
OCCPS, see Ontario Civilian Commission on Zoot Suit riots, 30 officer’s privilege against self-
Police Services (OCCPS) Police Captains’ Endowment Association, 154 incrimination, 159–161
O’Deane, Matthew, 58 Police corruption, 3, 4, 26, 103–115, 163–167 process, 151–153
Office of Justice Programs (OJP), 15, 16 Corruption Perception Index, 108 recruiting, 162
Office of Law Enforcement Assistance, 40 history of, 22–28 and media, 8–9
Office of the Chief Medical Examiner, 74 Kefauver hearings on organized militarization of America’s police forces,
Office of the Police Complaint crime, 27–28 10–12
Commissioner, 112, 146 prohibition, 27 National Decertification Database, 16
Officer-involved shootings (OIS), 81 report on Wickersham noble-cause corruption, 7
OIS, see Officer-involved shootings (OIS) Commission, 27 dangers of, 7
OJP, see Office of Justice Programs (OJP) international obligations, 106 Dirty Harry syndrome, 7
Omnibus Crime Control and Safe Streets United Nations Convention against incident, 7
Act of 1968, 11 Corruption (UNCAC), 106 predicable forms of corruption, 7–8
Ontario Civilian Commission on Police involving international and President’s Task Force on 21st Century
Services (OCCPS), 112 transnational commerce, 103–106 Policing, 12–16
Ontario Provincial Police (OPP), 111 arbitrary arrests in Argentina, building trust and legitimacy, 14
OPP, see Ontario Provincial Police (OPP) 103–104 community policing and crime
Orsak v. Metropolitan Airports Commission arbitrary police actions in Brazil, reduction, 15
Airport Police Department, 52 105–106 executive summary of, 12–14
176 Index

implementation recommendations, 16 Pullman, George, 30 Scalia, 56

officer wellness and safety, 16 Pullman strike of 1894, 29–30 Scanning Electron Microscopy, 77
policy and oversight, 14–15 Scheuermann, Dwayne, 119
technology and social media, 15 Schmalleger, Frank, 31
Q
training and education, 15–16 Schmitt, Robert A., 75
preventing, 117–126 Qualified immunity, 135 School of Criminology, 111
civil rights investigations by, 117–119 Quinn, 139 Schultz, David, 91
criminal convictions, 117 Scott, Timothy, 142
petitions for investigations, 120–126 Scott v. Harris, 93
R
police psychologists, 119–120 Scripps News, 147
United Kingdom restricts Racial profiling, 88, 152 Scrivner, Ellen, 119
resignations/dismissal, 119 “Racism and criminal justice”, 86 Section 1983, 69
procedural handling of citizen Ramos, Jose, 155 Section 51-277a, 80
complaints, 4 Ramos, Rafael, 23, 25 Section 53a-22, 81
punishing, 9–10 Rape, Abuse, and Incest National Section 53a-55(a), 81
U.S. police, 10 Network, 95 Section 53a-59, 81
Police Misconduct Statistical Report, 86 Rawlings-Blake, Stephanie C., 156 Self-incrimination, privilege against,
PoliceOne website, 7 RCMP, see Royal Canadian Mounted Police 159–161
Police Pacification Unit (UPP), 105 (RCMP) failure of polygraph test, 160–161
Police performance management, and crime Reagan, Ronald, 12 false statement, 160
report manipulation, 100–101 Reaves, B., 165 Garrity v. New Jersey, 159
Police Professionalism Institute, 88 Reform Era, 38 People v. Marchetta, 159–160
Police psychologists, 119–120 Reform movement, 22 Sergeants’ Benevolent Association (SBA), 156
profiles of violence-prone officers, 120 Reinbolt, 139 Sexual assaults, 5
steps in prevention, 120 Report on Lawlessness in Law Enforcement, Sexual misconduct, 94–95
Police–Public Contact Survey (PPCS), 89 27, 38 Shaw, Timothy, 76, 79
Police secrecy, 20 Retaliation, 97–98 Sheehan, Patricia, 34
Police Studies Centre, 111 Rethis, Achilles, 75, 76, 79 Sheldon, Michael, 78
Police Superintendents’ Association of Ribeiro, Edgelson, 105 Sheldon, Mike, 79
England and Wales, 53 Rickard, Donald, 55, 92–93 Shire-reeve system, 19
Polygraph test, 160–161 Rio de Janeiro Public Security Institute, 105 Siler, Kenneth, 62
Portland Police Bureau (PPB), 67 Rivera, Benjamin, 97 Silverman, Eli B., 100
Positive Neighborhood Action Committee Rivera, William, 75, 79, 80 Simon Fraser University, 111
(PNAC), 33 Rizer, Joseph, 137 Situational Force Model, 56
Posse Comitatus Act, 12 Roach, Brian, 73 SIU, see Special Investigations Unit (SIU)
POST, see Peace Officer and Standards Roberts, Rebecca, 86, 96 Sixth Circuit Court of Appeal, 93
Training (POST) Robinson, Rashad, 145 SJPD, see San Jose Police Department (SJPD)
Pound, Roscoe, 27 Rodriguez, Juan, 97, 98 Skolnick, Jerome, 1
Powell, Louis, 135 Rodriguez, Omar, 95 Slusser, Ronald, 86
PPB, see Portland Police Bureau (PPB) Romney, George, 30 Smith, 58
PPCS, see Police–Public Contact Survey Roosevelt, Franklin, 20 Smith, Scott, 82
(PPCS) Roosevelt, Theodore, 22 Smith v. City of Hemet, 139
PPD, see Philadelphia Police Department Ross, Theadora, 21 Sotomayor, Sonia, 55, 56
(PPD) Royal Canadian Mounted Police (RCMP), Souter, 141
Prather, Daniel, 73, 74, 75, 76, 79, 80 111, 112 Special Investigations Unit (SIU), 112–113
PREA, see Prison Rape Elimination Act Rusher, Daniel, 92 Special Police Operations Battalion, 105
(PREA) Russell, Brett, 117 Special weapons and tactics (SWAT), 12
Precision Intervention Technique (PIT), 142 Russian police, 6 Spina, Dominick, 33
President’s Task Force on 21st Century R. v. McNeil, 112 SQ, see Sûreté du Québec (SQ)
Policing Report, 12–16, 88, 89, 145, SRCs, see State reporting coordinators (SRCs)
146–147, 162 State law torts, 131
S
building trust and legitimacy, 14 State reporting coordinators (SRCs), 70, 71
community policing and crime San Bernardino Police Department (SBPD), State’s Attorney for the Judicial District of
reduction, 15 62, 63 Hartford, 74
executive summary of, 12–14 San Diego Police Department policy manual State’s Attorney’s Office for the Judicial
implementation recommendations, 16 section 9.33, 3 District of Waterbury, 74, 81
officer wellness and safety, 16 San Jose Police Department (SJPD), 42 Stinson, Phillip, 50
policy and oversight, 14–15 Santos, Carlos Adilio Maciel, 105 Stuart Somers, 77
technology and social media, 15 Santos, Edson, 105 Student members, 146
training and education, 15–16 Sao Paulo State Secretariat for Public Sudan police, 5–6
Price v. Sery, 67 Security, 105 Supreme Court of Canada, 111–112
Prison Rape Elimination Act (PREA), 95 Saucier v. Katz, 135–136 Sûreté du Québec (SQ), 111
Procedural justice, 4 SBA, see Sergeants’ Benevolent Association Swanson, Timothy J., 6
Professional Standards Unit, 153 (SBA) SWAT, see Special weapons and tactics
Property, deprivation of, 5 SBPD, see San Bernardino Police Department (SWAT)
Public outcry, 68–69 (SBPD) Symbionese Liberation Army, 12
Index 177

T UN General Assembly Resolution V

58/4, 106
T&E, see Training and education (T&E) Uniform Crime Reporting Program, 25 Vanstone, Richard, 137
Tammany Hall political machine, 22 United Kingdom review boards, 146 Vaughn, M. S., 69
Tampering with/or Fabricating Physical United Kingdom’s Home Office, 119 VCIT, see Violent Crime Impact Team
Evidence 53a-157b, 79 United Nations Convention against (VCIT)
Taser use, in Great Britain, 53 Corruption (UNCAC), 106 Verbal warnings, 60
Tax Justice Network, 115 United Nations Office on Drugs and Vicens, Al, 67
TCLEOSE, see Texas Commission on Law Crime, 2 Victim’s conduct, 139–141
Enforcement (TCOLE) United States v. Jannotti, 85 Violent Crime Control and Law
TCOLE, see Texas Commission on Law University of Louisville, 10 Enforcement Act of 1994, 11
Enforcement (TCOLE) University of Nebraska, 88 Violent Crime Impact Team (VCIT), 73, 75
Tennessee statute, 66 University of Nevada, 122
Tennessee v. Garner, 54, 65, 67, 143 University of South Carolina, 10 W
Terrill, William, 56 Unlawful arrest, 49–51
Texas Commission on Law Enforcement UPP, see Police Pacification Unit (UPP) Walker, Samuel, 88
(TCOLE), 40 U.S. Army Field Manual, 108 “War on drugs”, 12
Thief-takers, 19 U.S. Attorney’s Office, 118 Warren, David, 119
Thim, George N., 74 U.S. Congress, 1, 10, 130 Washington Post, 68, 69
Throckmorton, 34 U.S. Constitution, 5 Waterbury States Attorney’s Office, 79
Tickets fixing, 155–156 U.S. Court of Appeals, 51, 69, 129, 130, 143 Weaver, Andrew, 78
Timek, Frank, 99 U.S. Court of Appeals for the Eighth The Week, 10
Title 18, U.S.C., Section 241, 132 Circuit, 53 Weitzer, Robert, 85
Title 18, U.S.C., Section 242, 132 U.S. Court of Appeals for the Fifth Welch, John, 76
Title 18, U.S.C., Section 245, 132 Circuit, 55 Wheaten, Sterling, 99
Title 18, U.S.C., Section 247, 133 U.S. Court of Appeals for the Tenth Wheel model, see Situational Force Model
Title 18, U.S.C., Section 248, 133 Circuit, 72 White, 65, 66
Title 18, U.S.C., Section 249, 132 U.S. Department of Defense, 6 White House Police Data Initiative, 12
Title 18, U.S.C., Section 844(H), 133 U.S. Department of Justice (DOJ), 1, 10, 11, White racism, 36
Title 42, U.S.C., Section 14141, 134 15–16, 38–39, 51, 117–119, 121, 129, Wickersham, George W., 27
Title 42, U.S.C., Section 3631, 133–134 131, 147–148, 153 Wickersham Commission, 27, 38
Tom Jones, 19 U.S. Department of State, 103, 104 Wilson, Darren, 65
Toronto Police Service, 111, 112 U.S. District Courts, 69 Wilson v. Meets, 72
Traffic stops, and police, 86–87 Use of Force Review Board, 121 Wisconsin Innocence Project, 85
Training and education (T&E), 123 U.S. House of Representatives Wolfe, Scott, 10
Transparency International, 103 Subcommittee on Crime, 156 World corruption police, 107
Trevino, Guadalupe, 87 U.S. Institute of Peace, 107 Worrall, John L., 31
Turman, Dennis, 75 U.S. Marine Corps Warfighting Written warning, 60
Publication, 108 Wynn v. City of Lakeland, 136–137
U U.S. police, 10
U.S. Supreme Court, 129, 49, 50, 51, 53, 54, 55, Z
UNCAC, see United Nations Convention 65, 92, 135, 136, 137, 138, 140
against Corruption (UNCAC) U.S. v. Watson, 119 Zoot Suit riots, 30