On Wednesday, University of Cincinnati police officer Ray Tensing was indicted for murder for shooting Samuel DuBose. His indictment brings to center stage an urgent question: How can we improve policing in America?
Depictions of alleged police brutality dominate the news. A week does not go by without the latest video of police shooting someone, using physical force to subdue someone, or, as in the case of Sandra Bland, verbally abusing someone and jailing them for a petty offense.
More often than not, the victims seem to be people of color.
If only we could separate police officers into good cops and bad cops.
We like to think we know the difference, of course: Good police officers do not racially profile, use excessive force, verbally abuse people, arrest individuals for petty offenses or let them die in jail. The problem is that the good cop, bad cop dichotomy is simply false.
If we could easily tell good cops from bad cops, the solution would be easy: fire the bad ones – the racist ones, the ones who use inappropriate force. But it is not that simple. Any police officer can turn bad.
Why? Part of the cause is that laws on the use of force favor the police, making it difficult to win cases and hold them accountable for their actions.
Police are legally empowered to use force, including deadly force, if they believe their own safety or the public’s safety is immediately and seriously threatened. Historically, police who use excessive force could be charged criminally or sued under state tort law. Neither option works well. Sovereign immunity bars many suits, prosecutors rarely charge officers, and juries are seldom sympathetic to victims, especially if they are criminals.
The basic legal framework for holding police responsible for excessive use of force was established in 1978 with Monell v. Department of Social Services. In Monell, the Supreme Court ruled that municipalities can be held responsible for police actions when and if plaintiffs (like victims of police brutality, for example) can show that those actions were the product of official police policy or part of a police department’s culture, customs and practices.
The problem is, this is very hard to do – and therefore it's tough to hold police accountable for misconduct. To hold police civilly responsible for civil rights abuses three elements must be proved. First, the person filing a complaint must be a person protected under the statute. Second, the defendant (police officer) must be acting under the color of the law. Third, the alleged violation must seriously infringe on a constitutional right. Victims also have to show that police acted with deliberate indifference, which is a higher legal standard of proof than negligence. This is a very high bar.
And it gets worse. When it comes to use of force, police have significant latitude. Not all uses of force are illegal, nor are all injuries actionable (of course, this make sense, police sometimes do need to use force for good reasons).
The Supreme Court has issued two major decisions that explain when police use of force is excessive. In Tennessee v. Garner the Supreme Court ruled that the use of excessive deadly force is a Fourth Amendment violation, that is, a kind of illegal search and seizure. To determine police liability, one must balance the citizen's interest versus the government’s. The citizen’s interest is substantial, of course: not to die. To overcome that interest, police must show that the officer believed that the suspect poses an immediate threat of serious physical harm to the officer or others.
In Graham v. Connor the Supreme Court created an even softer standard for the excessive use of non-deadly force, based on whether the use of force would be justified from the perspective of a reasonable officer with 20/20 hindsight.
Excessive use of force cases are hard to win for all the reasons criminal and state tort liability cases are. Moreover, public fears of crime complicate matters. So does racism, especially in situations with mostly white officers – and often mostly white prosecutors, judges and juries – and people of color as victims. But another reason why these cases are hard to win is that the law determines excessive force from the perspective of the police officer, not the victim. Few juries are willing or able to second-guess a cop.
These problems in the law have helped create the problems we see in the headlines today. Good cops and bad cops aren’t born that way. Police officers develop their operating procedures and cultures based on the legal frameworks in which they work. The law needs to strike an appropriate balance between police judgments on the use of force and the rights of the public. Presently the law has tipped too far in favor of police.
David Schultz is a professor of political science at Hamline University and a member of the Scholars Strategy Network. He taught police civil liability for seven years. Follow him at @ProfDSchultz.