Conducting Just Use of Force Investigations
The expert testimony, research, scholarship, and lived experience collected by the Commission revealed the following:
- In the United States, immigrant communities and ethnic minorities often become disproportionate targets of the traditional crime control model that uses physical force (Simmons, 2010). New York City’s Civilian Complaint Review Board (CCRB) found that while Blacks comprised 23 percent of the city’s population, they represented 55 percent of reported victims of alleged police misconduct from 2008 to 2013; Hispanics were 29 percent of the population and accounted for 26 percent of complaints; and Whites were 34 percent of the population but only 9% of the alleged victims of police misconduct (N.Y.C. Civilian, 2014). In 2013, 53 percent of all complaints against police departments were for alleged misconduct in use of force (N.Y.C. Civilian, 2014). The most severe of these instances of use of force resulted in the death of a civilian.
- Police-involved deaths are generally investigated through a two-pronged approach. The first investigation, which is aimed at determining whether an officer has committed a crime, is usually conducted internally by detectives from a homicide squad or force investigation squad (L.A. Police Department, 2014; Katz, 2015). The first stage may be conducted by a neighboring department if the officer’s own agency is too small and doesn’t have the resources (Sullivan, 2014; Katz, 2015). With the findings of this investigation in hand, the local prosecutor determines whether to file charges against the officer through procedures that might involve convening a grand jury, depending on the jurisdiction (Sullivan, 2014). The second investigation considers whether or not the officer disregarded department policies (Sullivan, 2014; Katz, 2015).
- A large collection of research demonstrates that “public perceptions of the fairness of the justice system in the United States are more significant in shaping its legitimacy than perceptions that it is effective” (Katz, 2015; Hough et al., 2010).
- Opinion polls taken after the death of Michael Brown demonstrate that significant cross-sections of the public did not have confidence in the investigations into the shooting (Pew Research, 2014; Peter Moore, 2014). For example, 76% of Black people surveyed by the Pew Research Center had little confidence or no confidence in the investigation of Mr. Brown’s shooting (Pew Research, 2014). In a poll by YouGov, less than half— only 42%—of Whites “trust[ed] the justice system to properly investigate” police-involved deaths, while a mere 19% of African Americans had such trust in the existing system (Moore, 2014).
These findings prompted the Commission to draft several calls to action to change use-of-force investigations in an effort to create a fairer justice system and improve citizens’ trust and confidence in the investigation process for use-of-force incidents. In addition to the inputs noted at the beginning of this document, these recommendations are based on the research and work of a group of former U.S. Attorneys and Assistant U.S. Attorneys based in St. Louis with the intent of avoiding even the appearance of impropriety in the prosecution of use of force cases.
To that end, the Commission issues the calls to action found below.
Suggested Reading List
Katz, W. (2015) Enhancing accountability and trust with independent investigations of police lethal force. Harvard Law Review. Retrieved fromhttp://harvardlawreview.org/2015/04/enhancing-accountability-and-trust-with-independent-investigations-of-police-lethal-force/
Chemerinsky, E. (2001). The role of prosecutors in dealing with police abuse:The lessons of Los Angeles. Virginia Journal of Social Policy & the Law. Retrieved from: https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=8+Va.+J.+Soc.+Pol’y+%26+L.+305&srctype=smi&srcid=3B15&key=031bd01d90708e5a348bc2fa169106f6
Hough, M., Jackson, J., Bradford, B., Myhill, A., Quinton, P. (2010). Procedural justice, trust, and institutional legitimacy. Policing:A Journal of Policy and Practice. Retrieved from: http://www.lse.ac.uk/methodology/pdf/JonJackson/Policing_pj.pdf
- Bobb, M. (2003). Civilian oversight of the police in the United States. Saint Louis University Public Law Review.
- Debbaudt, M. (2015). Legislation calling for independent police prosecutor is unnecessary. Association of Deputy District Attorneys. Retrieved from: http://campaign.r20.constantcontact.com/render?ca=817dce2e-9ba2-420d-87c0-7535c3aa5f58&c=1e35a160-bf69-11e4-8754-d4ae52733d3a&ch=1f6c2590-bf69-11e4-87b6-d4ae52733d3a
- Freeman, A. (1996). Unscheduled departures:The circumvention of just sentencing for police brutality. Hastings Law Journal. Retrieved from:https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&srctype=smi&srcid=3B15&doctype=cite&docid=47+Hastings+L.J.+677&key=65d079ab4fdefd9268b151ce7bb9a0ac
- Guida, B. (2013). Attorney general comes out against police shootings bill. Kenosha News. Retrieved from:http://www.kenoshanews.com/news/attorney_general_comes_out_against_police_shootings_bill_473208895.html
- Holley, P. (2014). Ferguson prosecutor says he knew some witnesses were “clearly not telling the truth.” they testified anyway. Washington Post. Retrieved from:http://www.washingtonpost.com/news/post-nation/wp/2014/12/20/ferguson-prosecutor-says-he-knew-some-witnesses-were-clearly-not-telling-the-truth-they-testified-anyway
- Hough, M., Jackson, J., Bradford, B., Myhill,
- A., Quinton, P. (2010). Procedural justice, trust, and institutional legitimacy. Policing:A Journal of Policy and Practice. Retrieved fromhttp://www.lse.ac.uk/methodology/pdf/JonJackson/Policing_pj.pdf Jacobi, J. (2000). Prosecuting police misconduct. Wisconsin Law Review. Retrieved from:https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&srctype=smi&srcid=3B15&doctype=cite&docid=2000+Wis.+L.+Rev.+789&key=20ee88f8ba23ffbacacd1a0b20162543
- L.A. Police Department. (2014) 2014 1st Quarter Manual § 794.14. Retrieved from http://www.lapdonline.org/lapd_manual/volume_3.htm#794
- Moore, P. (2014). Poll results:Police. YouGov. Retrieved from:http://cdn.yougov.com/cumulus_uploads/document/vl0h3on24q/tabs_OPI_police_force_20140814.pdf
- N.Y.C. Civilian Complaint Review Board. (2014). 2013 Report 8. Retrieved from:http://www.nyc.gov/html/ccrb/downloads/pdf/CCRB%20Annual_2013.pdf
- Pew Research Center. (2014). Stark racial divisions in reactions to Ferguson police shooting. Retrieved from:http://www.people-press.org/files/2014/08/8-18-14-Ferguson-Release.pdf
- Sabel, C. & Simon, W. (2014). Due process of administration:The problem of police accountability. Columbia School of Law. Retrieved from:http://ssrn.com/abstract=2507280
- Shapiro, S. (2009). What is the rule of recognition (and does it exist)? Yale School of Law. Retrieved from
- Simmons, K. (2010). New governance and the “new paradigm” of police accountability:A democratic approach to police reform. Catholic University Law Review. Retrieved from:http://www.nlg-npap.org/sites/default/files/Simmons.pdf
- Sullivan, J. (2014). Clearing the cops:Do district attorneys rubber-stamp police use of deadly force? CommonWealth Magazine. Retrieved from:http://massinc.wpengine.netdna-cdn.com/wp-content/uploads/sites/2/2014/08/CommonWealth_Winter2014.pdf