In the wake of recent events, communities have been quick to attack law enforcement officers, for what they believe is an unwarranted use of force. They argue that hard and fast rules are the only way to curtail such behavior.
However, police departments often reject the argument, saying you cannot regulate the use of force in fluid, unpredictable circumstances where an officer’s life may be in danger.
Which side is right?
A forthcoming paper in the Wisconsin Law Review suggests that the debate fails to take account of what police agencies actually do. The paper, by Ion Meyn, an associate professor at the University of Wisconsin Law School, argues that police already operate by “invisible” rules governing the use of force that lead to excessive and questionable violence against civilians.
Those invisible rules are “at the center of a struggle over who wields control over use-of-force reform—the police or the communities they serve,” Meyn writes.
He adds that making the guidelines that currently govern police behavior public would allow communities to “closely interrogate, disagree with, and amend them” and pave the way for genuine reform.
Meyn based his finding on extensive interviews with command-level officers across the country, as well as a close examination of training videos.
“Officers are often taught to be violent,” Meyn concluded.
He claims that in some agencies and training academies, “[o]fficers learn to treat every individual they interact with as an armed threat and every situation as a deadly force encounter in the making. Every individual, every situation—no exceptions.”
The consequences of that training are tragic, said Meyn.
Research shows that approximately 245 officers are shot by civilians each year, and some 3,000 civilians are shot by officers— an imbalance that suggests many civilians don’t pose the threat officers believe they do, Meyn writes.
“In 2020, for example, 1,127 subjects were killed by police,” the study said. “Of these, 348 did not have firearms.”
While he notes that in some cases, “unarmed” civilians were reported to have knives or used a vehicle as a weapon, Meyn argues that similar incidents in other countries almost never result in an officer shooting.
Moreover, Meyn cites a comprehensive study of officer-involved shootings or killings of civilians in Los Angeles, which suggested that in 61 percent of the cases where a police officer fired his or her weapon because they perceived a threat, the civilian was not carrying a weapon.
What constitutes “reasonable force” in policing is usually determined by the 1989 Supreme Court Graham v. Connor decision which stated that officers “must have all options available at all times.”
In other words, law enforcement agencies, through their training and experience — don’t want to put parameters on behavior while out in the field because the world can be unpredictable.
Meyn writes, for example, answers to a question like, “What is the right distance to maintain from the subject in an encounter?” generally are that it “depends on the situation, environment, and individuals” involved.
While that may explain police resistance to hard and fast rules governing the use of force, officers in fact are acting in according with often unspoken or assumed rules that prevail in individual agencies.
Many officers will stick to the rule-resistant narrative — by simply changing the world “rule” to terms like “guidance,” “standards,” “practices,” and “principals,” when teaching officers about when to show aggression, how to handle an unruly suspect, or when a situation needs to be escalated.
Agencies also often tell officers to be mindful of their body language, their tone, what they say, and how they initiate the show of force as attempts to try and be mindful of de-escalation tactics.
That suggests there are already some internal standards in operation, which the public is unaware of.
Other examples: in some departments officers are given guidelines that they must first attempt to use non-deadly force to restrain a suspect, and if a decision is made to use weapons, only one officer should produce the firearm.
But since these rules are rarely documented, the public doesn’t have the ability to evaluate their effectiveness, Meyn writes.
“Once exposed, these [Graham] rules speak for themselves: departments tend to favor rules that preemptively turn to violence to ensure officer safety at the expense of the safety of civilians.”
“And because the department denies the existence of rules, the public never knows that these rules exist, shielding them from scrutiny.”
One way to bring more the debate into the open is to examine what new recruits are taught in the police academy. In theory, training in “de-escalation” techniques for example, represent an effort to curb excessive use of force.
Recruits are also asked to consider other ways to prevent civilian contact from turning violent, such as avoiding an arrest if possible, mediating in disputes, and coordinating engagement with community resources for individuals who suffer mental illness or substance abuse when encountering the police.
Recruits are often cautioned in some police agencies that “a show of force is a use of force.”
But since the parameters for implementing these guidelines are not published, there are few ways to judge whether they are sufficient, Meyn writes.
Making the “invisible” rules visible “could facilitate a broader conversation as to their justification and the values they reflect.”
The conversation should extend beyond law enforcement to a much wider group in society, including civilians, psychologists, behavioral health professionals, civil rights attorneys, and even historians, Meyn writes.
“Police have insights to contribute, but are woefully unequipped to unilaterally assume this responsibility,” he argued. “Unless the community served by officers is comfortable with the implementation of these rules, these rules should not govern police encounters.”
Ion Meyn teaches Civil Rights, Race and the Law, and Wrongful Convictions at the University of Wisconsin-Madison Center for Law Society & Justice.
The full paper can be accessed here.
Andrea Cipriano is a staff writer for TCR.