Police department use-of-force policies in the nation’s 20 largest cities fail to meet international human rights standards, according to a report released today by the International Human Rights Clinic at the University of Chicago Law School. The report, Deadly Discretion: The Failure of Police Use of Force Policies to Meet Fundamental International Human Rights Law and Standards, comes amid growing demands for police reform at local, state, and federal levels following the deaths of George Floyd, Laquan McDonald, Eric Garner, Michael Brown, Ahmaud Arbery, Tony McDade, Regis Korchinski-Paquet, Breonna Taylor and many others.
“The video and testimonies from these incidents provide grim illustrations of the power law enforcement officers have over the people they are sworn to serve and protect and the deadly consequences when they abuse that power,” said Clinical Professor Claudia Flores, the director of the Law School’s International Human Rights Clinic. “Police lethal use-of-force policies provide the primary source of guidance and accountability for officer discretion to use force in any given situation—and police in this country have a great deal of discretion.”
For the report, which has been published by the University of Chicago Law Review Online, clinic students reviewed the 2018 police department policies in the 20 largest cities of the United States and graded them using a system developed from international human rights law and standards on police lethal use of force. International sources provide clear guidance on how the human rights of people can be protected in the context of law enforcement—but the United States remains largely alone among its peers in failing to comply with those standards, Flores said.
“Police departments grant their officers deadly discretion, allowing the use of lethal force to capture an escaping suspect or to prevent the commission of a felony, regardless of whether the suspect poses a threat of any kind,” she said. “Clear constraints on police discretion are critical to protecting the human rights of all people—especially members of marginalized or disempowered communities.”
The report emphasizes that the challenge of balancing police power with basic human rights—including the rights to life and security of person—is a global one. To meet this challenge, the 193 member countries of the United Nations, including the United States, have developed principles and standards to constrain the use of police power, including the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.
Human rights law and standards require that police use of force be grounded in law and necessary and proportional to the danger presented. They also require robust systems of accountability to respond to police abuse of power.
Not one of the police departments in the 20 largest U.S. cities has a use-of-force policy that meets these principles, Flores said. Instead, in some cases, policies justified lethal use of force for “escaping suspects” or “fugitives” or generally for “self-defense” or “prevention of crime,” regardless of the threat posed to officers or civilians.
Some key examples:
- Austin permitted the use of deadly force to make an arrest or prevent an escape when a subject had committed an offense involving the infliction or threatened infliction of serious bodily injury or death, without requiring that the threat of serious bodily injury or death be immediate.
- Houston only required police officers “to constantly assess the situation and adjust the use of force accordingly,” failing to require that force be used as a last resort.
- Jacksonville failed to require that lethal force only be used as a last resort.
- Indianapolis allowed for the use of force to prevent the commission of a forcible felony, without limiting or specifying the relevant felonies or the kind of force or threat of force involved.
In addition, 18 of the 20 cities do not have accountability mechanisms that comply with human rights standards, the report says.
Other key findings:
- Only two cities—Los Angeles and Chicago—required mandatory external reporting for all instances of the use of lethal force (i.e. discharge of a firearm).
- Columbus required external reporting only when use of lethal force resulted in death or injury to the subject.
- Houston, San Antonio, San Diego, Austin, Indianapolis, Charlotte, Seattle and El Paso had no external reporting requirements.
“Not only are state laws and use of force policies failing to set clear limits on the use of lethal force, but these lax standards are then buttressed by a set of judicial doctrines and legislative standards that make holding officers accountable even more difficult,” said Nino Guruli, fellow and lecturer in the International Human Rights Clinic.
The report recommends Congress, state legislatures, and police departments take substantial and immediate steps to bring police use of force policies into compliance with human rights standards. Among the recommendations:
- Deploy its legislative and spending powers to ensure federal, state and local police use force in a human rights-compliant manner.
- Require by law that the Department of Justice establish a mandatory program to collect, store, analyze and make public, data on police actions, including all incidents involving the use of lethal force, from the 50 US states and territories.
- Eliminate by law the doctrine of “qualified immunity” for law enforcement officers prosecuted for violations of the Constitution under 42 U.S.C. § 1983.
- Revise 18 U.S.C. § 242 to lower the standard of criminal intent required to convict law enforcement officers of a criminal violation of constitutional rights from “willfully” to “knowingly or with reckless disregard.”
State legislatures should:
- Require that law enforcement officers use de-escalation techniques to defuse all threats posed to officers and others prior to the use of force.
- Eliminate the use of police techniques, tactics and technologies that pose a risk of death or serious bodily harm and are not necessary or proportional to the threats posed to officers or others, including chokeholds, carotid holds, neck restraints, tear gas and rubber bullets, among others.
State and local law enforcement agencies should:
- Remove all policy exceptions allowing the use lethal force when it is not necessary or proportional, including “escaping fugitive” and general “self-defense” and “prevention of crime” exceptions.
- Mandate full reporting to an external, independent civilian oversight body empowered to conduct publicly accessible investigations for every incident involving the use of deadly force, including any time an officer discharges a firearm or uses a technique, tactic or technology capable of causing death or serious bodily harm.
The report also recommends that, in light of extensive evidence of excessive use of force by federal, state and local law enforcement during lawful demonstrations, government at all levels should re-evaluate the presence of armed police during lawful public gatherings.
“True police reform must start in the policies and practices of police departments themselves,” said Brian Citro, Assistant Clinical Professor of Law at Northwestern Pritzker School of Law and faculty co-author on the report. “In light of the recent police killings of George Floyd, Breonna Taylor, Manuel Ellis and others, the failure of police policies to sufficiently constrain the use of lethal force and ensure real accountability should alarm every one of us.”