Tagged: police use of force

Go Ahead and Say “Never” on Bivens Extensions

Way back in Reconstruction, Congress created a civil cause of action against state and local officials who violate federal constitutional rights. Today, that statute is 42 U.S.C. § 1983. Congress did not, however, create a parallel right to sue federal agents. In 1971, the Supreme Court made one up anyway in the case of Bivens v. Six Unknown Fed. Narcotics Agents.

The Court extended Bivens to a couple of new contexts in the early years afterward but soon came to realize it had overreached. In Wednesday’s decision in Egbert v. Boule, Justice Thomas notes in the opinion of the Court, “Over the past 42 years, however, we have declined 11 times to imply a similar cause of action for other alleged constitutional violations.” In Egbert, the Court declined to extend Bivens to a claim of allegedly excessive force allegedly used by a Border Patrol agent against an American citizen on U.S. soil. Continue reading . . .

FBI finally releases data from the National Use-of-Force Data Collection

On May 31, 2022, the FBI released national-level statistics on police use of force for the first time ever. These data were derived from the National Use-of-Force Data Collection, which is the first national-level dataset to collect data on police use of force. Law enforcement agencies are not required to submit their data though, so participation rates have been a consistent issue that has prevented the release of information up until this point. The FBI has been reporting on participation rates, but because participation rates have been below the required 60% threshold (up until now), it was unclear whether details on actual use-of-force data would ever be released. Relatedly, there was speculation that lack of participation might even cause the database to shut down.

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New study examines the impacts of the pandemic and George Floyd’s death on crime and policing

After the killing of George Floyd in 2020, protests erupted throughout many cities and calls for defunding the police became the new norm. This also occurred at the same time as the pandemic, which police responded to in myriad ways. A new study by researchers at Arizona State University examined the independent impacts of George Floyd’s death and the pandemic on crime and police work. Overall, the study found that both events had independent impacts on some measures of crime and police activity. The pandemic seemed to have a greater impact on crime while George Floyd’s death seemed to have a greater impact on police proactivity. The impacts on police work were massive and are consistent with the de-policing hypothesis.

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New public database on officer-involved fatalities

At present, the government does not mandate the reporting of lethal force by police departments, and there is no official number of the number of people killed by police annually. The National Use-of-Force Data Collection is the first national-level attempt to offer big-picture insights on police use of force but it is still in its infancy, and participation rates have been so low that the database may shut down.

But thanks to researchers at University of Southern California (USC) Dornsife, a new open-source database on police-involved fatalities has emerged and preliminary findings have recently been released.

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Fatal police shootings and race

The claim that police lethal force is disproportionately used against blacks has gained a lot of attention in recent years. Some data show the strength of this perception, though there is also data questioning this assertion. Unfortunately, the government does not mandate the reporting of lethal force by police departments, so it has been difficult to learn more about the frequency and context of these incidents. Nonetheless, the narrative that blacks are disproportionately killed by the police has inspired rapid policy changes.

Some databases have attempted to collate information on police use of lethal force, but their numbers are not always consistent and are subject to their own limitations. Other researchers have examined the relationship between race and police lethal force at a more detailed level, where they are able to see whether other case characteristics influence the relationship. A recent report by Robert VerBruggen of the Manhattan Institute explains several of the approaches used to examine racial bias in fatal police shootings, which are discussed below.

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Police use of force standards: Policymaking targets

Despite police use of force being a low-occurring event, well-publicized incidents can evoke widespread concern among community members and policymakers alike. Despite this, the police are still a primary agent of coercive force, and typically when police are called there is a strong possibility that coercive force may be necessary. From a legal perspective, the most important consideration in police use of force is the U.S. Supreme Court case Graham v. Connor, which provided a professional and legal understanding of reasonableness viewed as an objective evaluation of the totality of prevailing circumstances at that time. The formulation of the reasonableness standard has been controversial on several fronts, though, mostly because there is ambiguity of what a “reasonable officer” is and what is deemed reasonable likely differs between police officers and the general community.

In addition to Graham v. Connor, a primary mechanism employed to deter excessive police force is through department policy.  Law enforcement agencies (LEAs) desiring national accreditation from the Commission on Accreditation for Law Enforcement Agencies (CALEA) must have well-developed policies that clearly govern use of deadly force, less-lethal force, the rendering of medical aid subsequent to force, the training and proficiency with authorized weapons, and the reporting and review of of uses of force. Police departments typically have established use-of-force continua to guide officer decisions regarding what type of force should be used for a given level of subject resistance. Continua include varying levels of resistance and force arranged along an ordinal scale in terms of the severity of harm it presents to the other person. Typically, continua specify the highest level of force allowed for a given level of subject resistance. Despite the widespread use of these continua by LEAs though, little research has been conducted to evaluate the accuracy of force continua with underlying ordinal rankings.

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