Deaths from excessive force by police should be investigated like medical mistakes or airline … [+]
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While the police officers involved in the death of George Floyd face criminal charges, those consequences for excessive force by police are unusual. After analyzing data on police prosecutions, the website FiveThirtyEight concludes that “it’s uncommon for police officers to face any kind of legal consequences—let alone be convicted—for committing fatal violence against civilians.”
Given the challenges in bringing these cases and getting convictions, is there a better way to prevent unjustified force by the police? Barbara Armacost, a professor at the University of Virginia School of Law, presents an alternative approach to preventing excessive force by police officers. It is modeled on the thorough reviews undertaken by hospitals after a death by medical mistake, and by aviation investigators after an airplane crash.
Legal Standard For Convicting Police Officers Of Excessive Force
As explained in the US Department of Justice guide Law Enforcement Misconduct, after a physical assault on someone who is arrested or detained, to criminally convict a police officer the prosecutor must prove that “the law enforcement officer used more force than is reasonably necessary to arrest or gain control of the victim.” The DOJ guide explains that this objective standard looks at what a “reasonable officer would do under the same circumstances.” The 1989 US Supreme Court decision in Graham v. Connor (pages 396–97) states that “the ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”
Citing the legal analysis in Legal Standard—Police Use Of Deadly Force, Hennepin County Attorney Mike Freeman confirmed that this standard was applied in bringing the initial criminal charges against fired Minneapolis police officer Derek Chauvin, who applied the force that led to George Floyd’s death (additional charges have been brought by the Minnesota Attorney General against Chauvin and the three other police officers at the scene of the crime). Mr. Freeman concluded, following Graham and later US Supreme Court decisions, that “the evidence must show unreasonable conduct by the police utilizing the perspective of a police officer and that the use of deadly force was not necessary to protect the officer or the public from a threat of great bodily harm or death.” The prosecution must prove beyond a reasonable doubt that the deadly force used by the police officer was not justified.
In a 2016 Harvard Business Review (HBR) article, The Organizational Reasons Police Departments Don’t Change, Professor Armacost comments that lawsuits or criminal prosecutions against aggressive police officers “may make the public feel as though injustices are being addressed—and in some sense they are—but these strategies do not produce lasting reform.” Even if a jury or court decides that force was legally justified, she asserts, this “does not mean that it was actually necessary.”
In her analysis, the “only effective mechanism for addressing police brutality is top-down, systemic reform of the police organization itself” with other ideas she recommends in the HBR article that would save both “black and blue” lives. She explains various reasons most police departments fail to embrace reforms, including “unconscious racism affecting the way police officers perceive potentially dangerous circumstances.”
Reviewing Police Conduct Like Airplane Crashes And Hospital Deaths
According to Prof. Armacost, when the public demands accountability for inappropriate or abusive use of force by police, the investigation and prosecution of police shootings tends to center almost entirely on the officer who committed the action.
That narrow focus hinders the types of reforms Prof. Armacost outlines in Police Shootings: Is Accountability The Enemy Of Prevention?, an article of hers recently published in the Ohio State Law Journal. By looking only at the actions of the officer(s), involved, other factors or errors that contributed to the shooting may not get addressed.
“We need to look beyond the limited time-frame embraced by the current legal standard and view police-involved shootings as organizational accidents,” Prof. Armacost writes.
Lost in the analysis of most police shootings, she says, is consideration of other errors or systems weaknesses that may have contributed to an officer’s behavior or increased the risks leading to the fatal action. She noted that these include inaccurate or incomplete information relayed to the officers by the dispatcher, use-of-force policies, overtime or moonlighting practices that encourage overwork, and police de-escalation strategies.
After a death by medical mistake or an airline crash, a team of experts investigates all the contributing factors with the ultimate goal of future prevention and systemic improvement. For this reason, such accidents are known as sentinel events. The investigations do not focus merely on the immediate actions of the doctor or the pilot. In hospitals, for example, there may be an unanticipated chain of events that results in a death or a serious injury to a patient. Prof. Armacost’s medical experience as a head nurse in the cardiovascular unit at the University of Virginia hospital led her to explore whether sentinel-event review could be used to investigate police-involved shootings and the use of deadly force.
The origins of sentinel-event review in medicine, she explained, can be traced back to a report from the US Institute of Medicine, To Err Is Human: Building A Safer Health System. The key insight of the report is that the majority of medical errors result not from mistakes by individuals but from “faulty systems, processes, and conditions that lead people to make mistakes or fail to prevent them.” It observed that “when an error occurs, blaming an individual does little to make the system safer and prevent someone else from committing the same error.” Its recommendations are designed to adopt a more “institutionalized approach that identifies root causes and underlying system failures,” with the intent to reduce medical errors by a minimum of 50% over the next five years.
The same is true in aviation, Prof. Armacost writes. “Commercial aviation, which has enjoyed a dramatic increase in safety over the past few decades, is the poster child for the success of proactive, forward-looking, systems-oriented review of harm-causing incidents.”
Applying Systems-Oriented Review To Investigate The Death Of George Floyd
In her article in the Ohio State Law Journal, Prof. Armacost insightfully analyzes the heartbreaking death of 12-year-old Tamir Rice using a systems-oriented sentinel-event review to investigate this police shooting. In 2014, a police officer killed Tamir Rice at a recreational center because he believed the boy was threatening him with a real gun. It was in fact a nonlethal “airsoft” gun.
A viewing of the New York Times video How George Floyd Was Killed In Police Custody, which reconstructs the death of George Floyd using security footage, witness videos, and official documents, suggests that a similar type of systems-oriented review will uncover comparable problems, lessons, and solutions for preventing unjustified, excessive force by police. If this time is truly different, these must be seriously considered and acted upon. As Prof. Armacost says of the Tamir Rice tragedy, this type of review will precisely “get beyond the single-minded focus on blaming the shooter in order to identify workplace and organizational causes that lie behind the last human causer.”
Investigating Excessive Police Actions Is More Complicated
One challenge to her proposal, Prof. Armacost concedes, is that setting goals for systems-oriented review of police shootings is more complicated and has to balance various interests. In aviation, for example, the goal is simply to prevent crashes. By contrast, the potential benefits of aggressive policing in the fight against violent crime—e.g. public safety, police safety, and preventing the spread of criminal violence to nearby communities—must be weighed against the potential harm that excessive force can inflict on suspects or bystanders.
However, she contends, these goals can be taken into account. “The question for a systems-oriented investigator,” she asserts, “is whether a particular shooting (or pattern of shootings) could have been prevented without compromising police and public safety across all communities.”