By Tony Dokoupil, Senior Staff
Writer, NBC News
When can police officers use
force, and when is use of force excessive?
Those questions hang in the air
after the family of Jonathon Ferrell, an unarmed 24-year-old man shot ten times
by Charlotte police officer Randall Kerrick last September — and pronounced
dead at the scene — filed a wrongful death lawsuit in civil court on Monday.
There are no hard national
standards, no binding state policies, not even a national database that tracks
how often, where, and under what circumstances police use deadly force. The
result, say scholars, is a free-wheeling space in American law and police
policy. The nation’s 17,000 law enforcement agencies set their own terms—and
when citizens cry foul, the courts spit out wildly inconsistent results.
"Pick up the paper any day
and there’s an excessive force case here and an excessive force case there, and
yet there’s no national data at all," says William Terrill, a professor of
criminal justice at Michigan State University. That contributes to a larger
problem of excess subjectivity, he says, where cops who commit brutality can
end up going free — guilty of what Terrill calls "lawfully awful
behavior."
The legal test for excessive
use of force, according to a 1989 Supreme Court ruling, is whether the police
officer "reasonably" believed that the force he or she used was
"necessary" to accomplish a legitimate goal. But there are no
universal definitions of "reasonably" or "necessary," and
in a drive from one jurisdiction to another, the court standards — and the
local police department policies — can shift as briskly as songs on the radio.
"Excess is in the eyes of
the beholder," adds Terrill, a former military police officer. "To
one officer ‘objectively reasonable’ means that if you don’t give me your
license, I get to use soft hands, and in another town the same resistance means
I can pull you through the car window, I can tase you."
That leaves the lower courts to
spin their own "ad-hoc, often inconsistent, and sometimes
ill-considered" conclusions, says Rachel Harmon, a professor of law at the
University of Virginia. They support a bullet fired in Newark, perhaps, and
find a similar shot unconstitutional in Trenton. The result, she says, is a
national patchwork, one where "many unconstitutional uses of force go
uncompensated and undeterred."
This soft spot in the law and
the data exists at a time when police shootings seem to be on the rise in many
cities.
Charlotte police killed five
people last year, the most in a decade—but less, City Manager Ron Carlee told
the Charlotte Observer, than were killed by police in Washington (49), Memphis
(42), Fort Worth (32), or Austin (17), all of which have seen their own numbers
creep upward.
Boston police (along with their
counterparts at the state level) have fired more bullets in each of the last
five years, hitting at least 23 people last year, 11 of them fatally.
Philadelphia police shot 52 people in 2012, prompting the commissioner to ask
the U.S. Justice Department for a special review. Dallas, Miami, Baltimore,
Chicago, Houston, Las Vegas, Los Angeles, New York City: all have been rocked
by use of force scandals in recent years.
But does any of this add up to
a national problem?
No one knows for sure.
The FBI is a clearinghouse for
national crime data, from break-ins on the San Francisco Bay to stolen property
on the streets of New York. But while it issues an annual report on law
enforcement killed or assaulted by civilians, it doesn’t do the same for
civilians unjustifiably killed or assaulted by police.
In 1994, Congress required the
Attorney General to "acquire data about the use of excessive force by law
enforcement officers," and "publish an annual summary" of these
data."
"It was never
implemented," says Terrill. The Justice Department did not return a
request for comment. The FBI, meanwhile, acknowledged the shortcomings in its
data.
"The data collected is
general in nature," said FBI spokesperson Stephen G. Fischer Jr., in an
email to NBC News, "and does not allow for the level of detail to
determine the occupation of the offender."
To help fill the data gap,
Terrill and colleagues recently completed a national survey of police use of
force policies, examining how those policies translate to outcomes on the
street. He got more than 600 departments to participate, and he isolated eight
more—including Charlotte — for a deeper look, including a survey of officers
and a two year review of crime, complaints and instances of police violence.
He went looking for what
amounts to a standard policy, and hopefully an ideal one, but what he found was
jarring: there’s no such thing as a standard policy — and nothing currently in
use is ideal. More than 80 percent of departments train officers on a use of
force "continuum," running from less lethal to more lethal, depending
on the level of civilian resistance. Within that continuum, however, there is
variety allowing for "nearly all types of force against nearly all types
of resistance."
"Departments pick and
choose, tweak and adapt [their policies], in a multitude of ways," Terrill
and his colleagues wrote. "All unfortunately with no empirical evidence as
to which approach is best or even better than another."
Based on the survey results,
Terrill picked eight comparable cities for a closer look, and he won
cooperation from Charlotte, Portland, Albuquerque, Colorado Springs, St.
Petersburg, Fort Wayne, and Knoxville. That offered him a good mix of policies
on police violence. And by stacking one policy against another, he hoped to
isolate the best one, something researchers have never been able to do before.
The result could bolster the
case argued by the family of Ferrell, the former football player killed by
Charlotte police last summer. In fact, when contacted by NBC News, Professor
Terrill acknowledged that he had just been retained by the family, who hoped to
incorporate his results — and possibly his testimony — into their case.
Terrill concluded that
Charlotte police officers had one of the worst policies under review. The
city’s officers didn’t use force more often, but when they did use it they
injured suspects at by far a greater rate, 73 percent compared to 45 percent
for the next city on the list. Charlotte’s officers were also among the most
likely to point their guns, and compared to the other cities, they used more
force "relative to citizen resistance." Charlotte’s officers also
rated their city’s force policy as comparatively unhelpful and vague.
Charlotte police did not
respond to a request for comment on these findings. But Chief Rodney Monroe has
defended his city’s police training as "adequate," even as his
department has called Kerrick’s actions "excessive," and supported
the state’s charge of voluntary manslaughter.
In a twist that’s typical in
use of force cases, Terrill says, his findings may actually help Kerrick beat
the criminal charges against him. The fact that Charlotte’s officers may be
more likely to draw their guns, injure their suspects, and feel unassisted by
their own policies than similar cities may help suggest that what Kerrick did
wasn’t the
"It’s an odd world we live
in," says Terrill. "I don’t understand it myself."
