use of force – Techdirt (original) (raw)

FBI Stats Show Crime Still Declining, Despite The Assertions Of Alarmists And Political Opportunists

from the things-are-still-pretty-pretty-pretty-pretty-good dept

There’s a large contingent of people who want you to believe each successive year is worse than the last one. Despite being the beneficiary of a two-decade run of historically low crime rates, the United States is often portrayed as a crime-ridden wasteland where only the bravest dare to police the mean streets.

This year is no different. Opportunists and alarmists are claiming crime rates are spiking again, backing up these assertions by pointing to highly local anomalies. They then make this worse by conjuring up their favorite ideological boogeymen to support their claims about the Dangerous States of America.

They claim “progressive” prosecutors are increasing crime rates by not prosecuting enough low-level crimes and prosecuting too many police officers. That claim might make sense if there were actually enough “progressive” prosecutors to have this sort of effect. But there are thousands of prosecutors across the nation, ranging from the county to the federal level and only a couple dozen of them could generously be considered to be “progressive.”

They also claim “defunding” law enforcement agencies has led to spikes in crimes because there’s not enough money being spent on cops. This, again, is bullshit. There has been no serious “defunding” of any law enforcement agency anywhere. At most, some funds have been diverted to support the formation of units composed of mental health professionals to handle distress calls cops probably shouldn’t be handling anyway.

Then there’s the most ridiculous supporting argument for their false claims: cops aren’t doing their jobs because the public just doesn’t deserve their help. This is pretty much just blaming the victims. But the origin of this theory goes back to the cops themselves. An unjustified killing is often met with protests. Protests lead to legislators temporarily pretending to care about police accountability. Lots of stuff gets said. Every so often, a bill that barely changes the accountability status quo gets passed. A bunch of cop union reps say dumb things about cops being “unfairly targeted.” And then cops just stop doing their job because… they were threatened with, at most, a mild increase in accountability. TL;DR: cops won’t do their actual jobs if they’re not being showered with unconditional love from the public.

All of these arguments are stupid. And none of them can support the theory the country is descending into a new period of historically high crime rates.

You know what else doesn’t support this theory? Actual crime rates. The latest edition of the FBI’s Uniform Crime Report has been released. And it shows across-the-board drops in violent crime rates.

A comparison of data from agencies that voluntarily submitted at least two or more common months of data for January through March 2023 and 2024 indicates reported violent crime decreased by 15.2 percent. Murder decreased by 26.4 percent, rape decreased by 25.7 percent, robbery decreased by 17.8 percent, and aggravated assault decreased by 12.5 percent. Reported property crime also decreased by 15.1 percent.

Now, there are caveats, of course. And some of those will be used by tough-on-crime opportunists to justify their latest fusillade of misinformation to score points with constituents or further their anti-criminal justice reform theories.

As the FBI notes, only 72% of the nation’s law enforcement agencies contributed to this report, so there’s still a lot of crime that hasn’t been reported to the FBI. Whether or not that would change the overall percentages is unknown, but this is not a completely comprehensive view of the nation’s crime rates.

On top of that, the FBI drastically altered how crimes were reported in 2021. This has led to less participation as local agencies get used to the new reporting requirements. It also means some crimes are being categorized incorrectly, which may result in under-reporting or over-reporting of certain types of crimes.

That being said, the UCR has never had a 100% participation rate. It’s always been much lower than that. And the add-on to this FBI reporting — use-of-force reporting — has been significantly lower since its inception more than two decades ago.

There’s reason to question what’s reported by those participating, as well. It’s not unusual for law enforcement agencies to polish stats, either to make their efforts look more useful than they are or to demonstrate spikes in crimes that might be useful when annual budgets are being discussed.

Like anything else, this reporting involves thousands of people with their own motivations and their own ability to generate clerical errors.

That being said, it has historically been used to provide a useful snapshot of crime rate trends. And for that reason, despite its drawbacks, there’s little reason to believe the decreases reported by the FBI are so off the mark, they can’t possibly be trusted. This is a straight-up year-to-year comparison utilizing the same reporting requirements and with basically the same amount of participation as last year’s reporting. So if the reporting is flawed, at least this year-to-year comparison involves similarly flawed data sets.

This is not to say there aren’t places in the United States where crime rates are going up. But it’s unhelpful, if not actually untruthful, to claim the US is becoming increasingly dangerous. It simply isn’t. And after two decades of historically low crime rates, we should probably expect a slight shift back towards the mean. But anyone telling you the country’s in worse shape than it’s ever been is trying to sell you something.

Filed Under: crime data, fbi, use of force

Oversight Agency Says DHS Needs To Stop Screwing Around And Accurately Track Use Of Force By Officers

from the if-you-can-hit-people,-you-can-hit-a-keyboard dept

There are no incentives in place to encourage accurate reporting of force deployment by law enforcement agencies. Tracking use of force means agencies are basically generating evidence for civil rights lawsuits. That’s why force reporting is, at best, inconsistent.

At its worst, it’s simply dishonest. The lack of solid deterrents means agencies simply won’t generate this data, lest it be used against them at some point in time. Policy changes rarely change anything, since they’re almost always unmoored from any substantial form of punishment.

Sure, a few outliers might make a genuine effort to accurately report these numbers, but there’s no concerted or consistent effort being made by the vast majority of agencies affected by reforms, directives, policy changes, etc. that supposedly mandate accurate reporting on force deployment.

So, this report [PDF] from the Government Accountability Office (GAO) reflects more of the same status quo. Directives and recommendations have been handed out for years, including more recent reform efforts mean to limit excessive force deployment. But no one’s actually making anyone comply. That’s how we end up with this:

On May 25, 2022, Executive Order 14,074 required the heads of federal law enforcement agencies, including DHS, to ensure their agencies’ use of force policies reflect principles of valuing and preserving human life and meet or exceed DOJ’s use of force policy.

[…]

While DHS requires the four agencies GAO reviewed to submit data on uses of force, the data submitted to DHS undercount the frequency that officers used force against subjects. For example, agencies sometimes submitted data to DHS that counted multiple reportable uses of force as a single “incident.”

To be sure, the cops (federal or not) brought this upon themselves. Two solid years of protests against police violence (provoked by the murder of George Floyd by Minneapolis police officer Derek Chauvin) forced the new presidential administration to roll back directives installed by its predecessor — someone who chose to believe it was the policed who were the actual problem.

Following high-profile deaths during law enforcement encounters and the subsequent public demonstrations in the summer of 2020, as well as events at the southern border in September 2021, the President signed an executive order on May 25, 2022, that addressed issues related to the use of force in federal law enforcement. The executive order noted the importance of strengthening trust between law enforcement officers and the communities they serve, as well as ensuring the criminal justice system serves and protects all people equally.

Well, you can’t rebuild trust if you’re unwilling to report force deployment accurately. And so, it appears DHS entities have a long way to go if they’re going to hold themselves up as examples worthy of being emulated.

The four agencies investigated by the GAO are no one’s idea of trustworthy. The CBP and ICE spent four years under Donald Trump erasing whatever goodwill they might have built up prior to his election. The Federal Protective Service flew under the radar until it was deployed to Portland, Oregon, where it promptly began brutalizing protesters, vanishing people off the street, and ignoring multiple court orders telling it to stop doing all of the above. And as for the US Secret Service, it’s never violated rights en masse, but it’s definitely home to multiple, still-unaddressed problems that range from moral turpitude to blatant obstruction.

The GAO’s previous examination led to a handful of recommendations. But despite having months (and all the money in taxpayers’ wallets) to do so, more than half of these DHS components had failed to anything more than promise to try to try.

As of February 2023, DHS had addressed our recommendation to develop standards for its agencies about what types of use of force should be reported but had not fully addressed the others. For example, it established a working group to oversee data collection, but that group had not yet developed monitoring mechanisms to ensure that reporting information is consistent and complete.

We also recommended that ICE and Secret Service modify their policies to ensure officials document the determinations of whether officers’ uses of force were within policy. As of February 2023, Secret Service had addressed GAO’s recommendation by issuing a new policy to document determinations, but ICE had not yet done so.

From what’s included in the report, it appears most of the agencies believed that mandates for use-of-force tracking meant they should do things like engage in more firearms certification, improve proficiency in less-lethal force deployment, say something nice about de-escalation for four hours a year, and avoid any discussion about implicit bias. Very little of the post-Executive Order efforts appear to actually be aimed at addressing the problem the EO was trying to address, i.e. abusive acts by federal officers.

Use-of-force reporting mandates are all over the place. Some federal officers are required to at least verbally report force deployment by the end of their shifts. ICE officers are required to “verbally” report this information within an hour of its occurrence. As for the permanent record, written reports are required anywhere from “by the end of shift” to 72 hours after the incident.

Because standards are inconsistent across DHS components and agencies/officers are rarely interested in accurately reporting their possible rights violations, the reported totals can’t be trusted.

Here’s how the Federal Protective Service (FPS) serves itself by under-reporting force deployment:

We found that officers sometimes report multiple uses of force in one report. For example, during demonstrations in Portland, Oregon, in February 2021, some individual officers used force multiple times during the course of an evening, but reported these uses to FPS on a single reporting form. In one case, over the course of 30 minutes, one officer deployed his less-lethal weapon three separate times, each time hitting a different individual. The officer reported these three uses of force to FPS in one report.

CBP does the same thing:

CBP data show that more than 1,700 use of force incidents occurred across the 2021-2022 fiscal year period. Of these, 291 incidents involved multiple officers using force, and 216 involved use of force against multiple subjects. For instance, in one encounter with migrants at the U.S. border, four officers reported using force on a group of 62 subjects. CBP recorded these uses of force as one incident.

Obviously, things need to change. The GAO (again) issues more recommendations, including additional reporting training for officers who are either unaware of the reporting requirements or simply choose to ignore them.

The problem is the GAO can’t actually make anyone in the government punish anyone else in the government for breaking the rules. So, it’s up to the DHS to do this. And if it won’t, it’s up to Congress. But if this has been a problem for years and recent social unrest has failed to move the dial, the obvious conclusion is that no one who can actually do anything about this wants to do anything about this.

Filed Under: dhs, gao, police brutality, police violence, use of force

Ohio Supreme Court Tells Cops They Can’t Hide All Their Use Of Force Reports Under Investigatory Records Exemption

from the clearing-away-some-cop-bullshit dept

Open records laws were passed because governments simply aren’t interested in voluntarily sharing their documents with the people that foot the bill for both the people and the paper. But governments have to pass these laws, in essence forcing transparency upon themselves. Since most governments seem to be more interested in opacity, massive holes in public records laws are crafted to limit the amount of sharing governments are forced to do.

That’s where the courts come into play. When the government plays it close to the vest, it far too often takes litigation to loosen its grip on documents it doesn’t feel like sharing. Not everyone can afford to sue, so the government often gets away with it. Those who do have the funds and the legal representation to sue make things better for everyone else by getting laws interpreted accurately and exemptions narrowed. This is one of those cases. (h/t Volokh Conspiracy)

The Cleveland Scene and one of its journalists sued the city of Cleveland over the Cleveland PD’s refusal to hand over use-of-force reports in response to the journalist’s open records request. Journalist Lauren Standifer requested all use-of-force records generated between January 1, 2019 and the date she sent the request, September 9, 2020.

The PD’s first response was a two-line spreadsheet containing nothing but the total number of use-of-force reports generated in 2019 and 2020. Standifer went back to the city and explained this was not what she had asked for, nor was it a sufficient response. The city responded 20 days later, now claiming her request was “both vague and overly broad.” Standifer reduced the time frame by about six months and re-sent her request. This one was denied a month later by the city, which incredibly claimed that all the records sought were exempt from disclosure because they were “confidential law enforcement investigatory records.” A month later the city simply informed Standifer her request was officially considered to be closed. Standifer sued.

After a little action in the state appeals court, the PD handed over a few documents but withheld a majority of what Standifer had requested. After some back and forth, the appeals court decided the city had the right to deny her the rest of these records under the stated exemption. It did this by making a very curious (and very broad) determination about the nature of the withheld documents — a determination that basically turned all cops involved in use-of-force incidents into suspected criminals. This is from the state Supreme Court’s decision [PDF]:

It held that the withheld UOF reports were exempt from disclosure as CLEIR [confidential law enforcement investigative record] because they relate to law-enforcement matters and because their disclosure “would create a high probability of” revealing the identities of uncharged suspects—i.e., the officers who used the force described in the reports.

Whoa, says the Supreme Court. Also, WTF. Claiming all use-of-force deployments immediately convert cops into criminal suspects is a hell of way to summarize what these reports are. [Emphasis in the original.]

We disagree with the court of appeals’ application of the uncharged suspect provision of R.C. 149.43(A (2). For one thing, the characterization of an officer who used force as a “suspect” is dubious, given that the UOF report is submitted prior to any determination that a use of force merits an administrative or criminal inquiry. Indeed, the use of force by a police officer in the course of the officer’s duties may not be wrongful, and, in such a case, the UOF report may not necessarily lead to any further criminal investigation. The court of appeals’ rationale, however, necessarily assumes that all officers who use force are per se criminal suspects.

The court says it’s certainly true some of the sought records pertain to pending criminal investigations or charges against officers, but it cannot possibly be true of all of them and the lower court should definitely not have converted a limited exemption into a blanket exemption to be exploited by the city and its police department. [Emphasis in the original.]

So in some cases, a UOF report could be exempt from disclosure to protect the identity of an officer who used force as an uncharged suspect. But it does not follow that UOF reports should be categorically treated as CLEIR. We decline to adopt the court of appeals’ rationale that an officer who used force is an uncharged suspect in every case in which a UOF report describing that force is prepared.

Since it has reached this determination on the city’s blanket exemption, it doesn’t need to bother with the journalist’s suggestion that the blanket exemption runs afoul of the city’s consent decree agreement with the US Department of Justice. Relevant, but not needed to reach its conclusions that the city misused the exemption. Also, always nice to be reminded the Cleveland PD was terrible enough for enough years in a row to attract the attention of the federal government.

The city will have to hand over far more documents than it wanted to. Some of those it wants to withhold may survive judicial scrutiny, but every cop shop in the state is now on notice it can’t hide its use-of-force records under an exemption that plain English makes clear shouldn’t apply to most of these records.

Filed Under: investigatory records, ohio, transparency, use of force

President Biden Signs Executive Order That Will Give Us A Couple Of Years Of Decent Law Enforcement Reforms

from the make-the-most-of-it,-I-guess dept

The murder of George Floyd by Minneapolis police officer Derek Chauvin was a flashpoint for police reform efforts around the nation. Cops had been killing unarmed minorities for years but this one was so spectacularly brutal and symbolic of institutional racism (a white cop pressing his knee to a black man’s neck), it couldn’t be ignored.

The last administration, headed by law enforcement sycophant Donald Trump, pretty much ignored this killing. When it did react, it promised to punish victims of racial injustice for expressing their anger and made it clear the administration would not be cracking down on police violence or misconduct.

There’s a new president now and police reform efforts are back on the table. President Biden has issued an executive order instituting a number of useful, if limited, law enforcement reforms that should — at least as long as he remains in office — result in more accountability than we’ve seen to date.

For starters, it looks like we’ll finally be seeing some stats on police use-of-force and misconduct being collected at the federal level. Unfortunately, the initial efforts will be limited to federal agencies.

All federal law enforcement agencies will contribute to a National Law Enforcement Accountability Database regarding instances of police misconduct as well as submit information to the FBI related to use-of-force incidents. The U.S. attorney general will review the status of and compliance with federal reporting requirements. This also includes the issuance of guidance to state, local, and tribal law enforcement agencies on best practices for contributing their data to federal systems.

This is something the DOJ has been mostly uninterested in collecting for most the last two decades, despite periodic assurances from the FBI that it will send out another mass email reminding local law enforcement agencies to contribute data if they feel like it.

What this data collection adds is information on police misconduct, which has never been harvested at the federal level. Again, the only agencies required to contribute are federal agencies, but presumably the DOJ can apply some sort of pressure to ensure more contributions, possibly by tying federal grants to participation. Whether or not the DOJ can talk the locals into sending records, we’ll at least have a pretty comprehensive view of misconduct at the federal level:

_records of criminal convictions; suspension of a law enforcement officer’s enforcement authorities, such as de-certification; terminations; civil judgments, including amounts (if publicly available), related to official duties; and resignations or retirements while under investigation for serious misconduct or sustained complaints or records of disciplinary action based on findings of serious misconduct_…

The DOJ is also tasked with ensuring more participation in the long-neglected use-of-force database the FBI has barely bothered to oversee for 20 years.

The Attorney General, in consultation with the United States Chief Technology Officer, shall work with State, Tribal, local, and territorial LEAs to identify the obstacles to their participation in the Use-of-Force Database; to reduce the administrative burden of reporting by using existing data collection efforts and improving those LEAs’ experience; and to provide training and technical assistance to those LEAs to encourage and facilitate their regular submission of use-of-force information to the Use-of-Force Database.

The biggest obstacle is probably “we don’t want to,” something that’s going to be difficult to overcome when participation is voluntary and there are few options the DOJ can deploy that wouldn’t result in some Tenth Amendment issues.

There are also some quasi-bans of controversial techniques like chokeholds and no-knock warrants. Unfortunately, the same exceptions that have allowed officers to deploy these techniques are still included in the executive order. Chokeholds are “banned” except “where the use of deadly force is authorized by law.” No-knock warrants are “banned” unless officers declare in their warrant affidavit that announcing their presence would “create an imminent threat of physical violence” to the officers or someone else in the residence. In other words, say the right things and you can still get the warrant and/or choke someone to death.

On the plus side, the executive order directs the DOJ to try to turn the patchwork of law enforcement officer credentialing into something more cohesive, standardized, and (presumably) make it easier to search officers who have been stripped of their credentials. Accreditation would be handled by an independent body and law enforcement agencies will not be allowed to “self-certify” without outside review by the Attorney General’s office.

Compliance for some of the many, many reforms listed will be encouraged through access to federal funds. The administration controls several discretionary grants and the AG’s office has been told to examine what can or cannot be withheld from local agencies should they fail to meet federal standards or participate in data collection efforts.

There’s a lot to like in the expansive executive order. But much of what’s listed here should be considered a baseline, rather than the end goal. What’s most useful about this order is that these baselines haven’t previously been established at the federal level. Instead, the DOJ has been given the discretion to pick and choose what it wants to fix and what it would rather ignore.

The EO restarts some 1033 program restrictions instituted by Barack Obama when he was in office. It directs studies into the civil rights impact of facial recognition AI and other surveillance tech. It also expands federal data collection to include information on police service calls, asset forfeiture programs, stops, searches, frisks, complaints, and the demographics of law enforcement agencies.

Unfortunately, it’s greatest strength — that it’s an executive order — is also its greatest weakness. The executive branch has lots of power. But it’s limited, for the most part, to that administration. Once the president instituting the order is out of office, the next person sitting in the Oval Office has the power to roll back any orders they don’t like. Executive orders have no built-in expiration date but they’re far easier to nullify than laws passed by Congress. So, this will be good while it lasts. And given the amount of time given for the DOJ and federal law enforcement agencies to implement the elements of this order, the reforms may not even be in place before they’re negated by a regime change. If any of this is going to stick, it’s going to need to be codified. And that seems unlikely, no matter who the Commander-in-Chief is.

Filed Under: 1033 program, doj, joe biden, police misconduct, police reforms, use of force

DOJ Updates Force Policy, Creates Affirmative Duty To Intervene When Officers Violate Rights

from the small-steps-towards-addressing-big-problems dept

A little more than a week ago, the Department of Justice updated its policy regarding CFAA (Computer Fraud and Abuse Act) prosecutions. For years, the DOJ had been complicit in the punishment of security researchers for doing their jobs, reasoning that unauthorized access was the only criminal element it needed to satisfy. The guidance — which had not been completely updated for years — reversed this course, affirmatively stating the DOJ would no longer seek prosecution of good faith security research efforts, making it a bit less dangerous to be a security researcher.

Unfortunately, there are caveats. First of all, it’s a policy update, not a codification of practices. The law still remains abusable should subsequent Attorneys General feel this is the path the DOJ should take in the future. It also does nothing to prevent private parties from suing researchers under the CFAA, although it does increase the risk the DOJ will file briefs siding with the defendants.

It’s a good step forward, though, no matter how limited or temporary it may turn out to be following the next regime change. In that same vein of cautious optimism, the DOJ has updated its use-of-force policy for the first time in 18 years, replacing the 2004 guidance with something that better reflects the standards the DOJ, under AG Merrick Garland, is attempting to instill in law enforcement agencies all over the nation.

Perhaps the biggest change in the new use-of-force policy is this: federal officers are no longer allowed to turn a blind eye to misconduct. The updated policy [PDF] gives officers responsibilities they’ve never had before, making an implicit assumption explicit.

Officers will be trained in, and must recognize and act upon, the affirmative duty to intervene to prevent or stop, as appropriate, any officer from engaging in excessive force or any other use of force that violates the Constitution, other federal laws, or Department policies on the reasonable use of force.

This is what we expect from law enforcement officers. This isn’t what they expect of themselves. And there’s nothing in settled law that imposes this duty. The DOJ is imposing this — via policy — on the federal officers it oversees, which includes those working for the DEA, FBI, ATF, US Marshals Service, and the Federal Bureau of Prisons.

That’s a lot of coverage. But, at this point, it’s only worth the bits it’s printed with. The DOJ will need to enforce it. And it will need to do more than hand out wrist slaps over dead bodies or broken limbs. And it will need to try to keep this policy on the books even after Garland exits the AG office. It’s unclear how the DOJ will handle this moving forward, but hopefully the man they answer to — Merrick Garland — will continue to make it clear federal policing is in need of fixing as much as local law enforcement agencies are.

Filed Under: doj, duty to intervene, police, use of force

An Increasing Number Of Cop Shops Feel The General Public Shouldn’t Have Access To Crime Stats

from the what-they-don't-know-can-possibly-hurt-them,-but-whatever dept

For decades, local law enforcement agencies have blown off requests from the FBI and DOJ to report use of force incidents by officers. This has led to a very incomplete picture of force deployment in the United States — a form of proxy opacity that has allowed agencies to ignore problematic cops and problematic actions.

The public is on high alert now, following the murder of unarmed black man George Floyd by white Minneapolis police officer Derek Chauvin — a brutal act that has prompted months of anti-police violence protests. By ignoring years of requests for data, agencies were able to hide misconduct and abuse, allowing officials to present symptoms of long-term internal rot as anomalies.

Apparently, that’s not enough for problematic law enforcement agencies, which appear to be a majority of them. According to the FBI’s latest Uniform Crime Report — something it has compiled with the cooperation of thousands of local law enforcement agencies since 1929 — this is the first time in a long time participation has dropped to levels so low the FBI cannot compile accurate information about criminal activity trends. (h/t Jeff Asher)

The FBI’s 2022 Uniform Crime Report contains this warning:

For this quarterly release, due to agency participation being under the 60 percent threshold, data trends by region and aggregate population group will not be available.

There’s a non-nefarious reason for some of this under-reporting. The FBI switched to a new crime reporting system at the beginning of 2021. Prior reporting methods undercounted some criminal acts because it limited local agencies to reporting only the most severe crime in any criminal incident. The old Summary Reporting System utilized a hierarchy rule that limited reporting to the most serious criminal act, even if other criminal acts were involved. In practice this means a murder during a home invasion is only reported as a murder, rather than a murder that occurred during a robbery and trespass of property.

The other limitation of the old system was the FBI’s restriction of crime tabulation to seven major crimes, which ignored many other criminal acts local agencies gather data on.

The new system is better, but it has limited participation. Only 52.5% of US law enforcement agencies (9,981 of 18,818) utilized the system the FBI expected them to use. It’s possible other data was reported but could not be processed correctly with the new system.

But other factors likely play into this limited reporting that go beyond utilizing a reporting system the FBI debuted in 1988 (want to feel old? that’s 34 years ago!), but only began mandating at the beginning of 2021.

One reason agencies may decide to hide crime stats is to ensure continued funding and beat back oversight efforts. Plenty of agencies have been subjected to additional scrutiny over the past couple of years. Some have also faced defunding efforts or rerouting of city and local spending to other areas like social services and mental health efforts. The best way to insist no one screws with the PD budget is to insist crime is on the rise while refusing to provide any data to back up these claims.

An unexpected spike in violent crime is often portrayed a “trend” by opportunistic agencies. Opting out of federal reporting allows these stats to stay buried, perhaps only recoverable by determined public records requesters with deep enough pockets to engage in litigation.

It also allows agencies to hide how terrible they are at solving violent crimes, which is definitely one of things that continues to disappoint constituents asked to pay a premium for underwhelming outcomes.

One way to prevent obfuscation of crime stats is to tie this reporting to federal funding. Like use-of-force reporting, crime stat reporting is voluntary. The DOJ cannot mandate this because it does not directly control state and local agencies. Federalism ensures a healthy separation between federal and local efforts. But that doesn’t mean the DOJ can’t encourage more participation.

The DOJ may not be able to constitutionally wield a stick, but it has several carrots. While local agencies may not care if the DOJ strips funding from body camera programs or community-oriented policing efforts, they’re definitely going to miss their free access to surplus military gear (via the Defense Department’s 1033 program) and their asset forfeiture partnerships with federal agencies that allow locals to bypass state restrictions on legalized theft.

At the very least, this under-participation means the public will have less understanding about crime rates and trends in the areas they live or the areas they may be looking to relocate to. The less information the public possesses, the easier it is for the government — at all levels — to control the narrative. Narrative matters now more than ever, especially for embattled law enforcement agencies. And these days there are plenty of those.

Filed Under: doj, fbi, uniform crime report, use of force

Because No One's Making Them Do It, Maine Law Enforcment Agencies Aren't Accurately Tracking Complaints Against Officers

from the perhaps-wisely-deciding-to-avoid-taking-notes-on-a-criminal-fucking-conspiracy dept

For three decades, the DOJ and FBI have barely tried (and always failed) to collect information about use of force by the nation’s 18,000 law enforcement agencies. Despite occasional promises to be more thorough and do better, the FBI has, for the most part, done nothing with this opportunity — one thrust upon it by a crime bill passed in 1994.

The biggest problem is that submission of use of force data has always been voluntary. The Department of Justice only directly oversees the FBI. Neither entity can force local agencies to provide this data. These multiple levels of failure have led to the Government Accountability Office suggesting the national use of force database be put out of its useless misery as early as this year, rather than just be another thing tax dollars are wasted on.

Local lawmakers could at least compel uniform collection and reporting of this data. They may not be able to mandate the release of this data to federal agencies, but they could at least ensure proper reporting occurs at the local level.

Mandates like this are needed. But few localities have them. This sort of accountability must be forced on local agencies. Collecting information on use of force incidents and any attendant complaints or allegations of excessive force does nothing for law enforcement agencies. So, the data collections must be compelled because there’s nothing innately compelling about collecting data that may show officers and agencies have unaddressed problems.

The lack of accountability means any collections are hit and miss. And that data set is mostly misses. Unsurprisingly, when journalists go looking for this data in hopes of quantifying local law enforcement’s generation of (and response to) citizen complaints, they come away with incomplete depictions of patterns and practices. That’s the best case scenario. The worst case is journalists discovering agencies aren’t compiling this data at all.

What’s been uncovered in Maine could likely be said about almost any other state in the Union.

A nearly year-long investigation into how Maine law enforcement agencies handle complaints against officers has uncovered widespread inconsistencies in record keeping and the public’s ability to access the information.

WMTW’s 8 Investigates team partnered with the Maine Freedom of Information Coalition to review hundreds of documents and data that were obtained.

The coalition contacted 135 Maine law enforcement agencies as part of the investigation. They were asked to provide the number of citizen complaints against officers from 2016 until now and details on any disciplinary action.

The data and documents produced, or lack thereof, made clear that although it is public information, Maine has no uniform system for tracking and maintaining the records.

Why doesn’t the state have this? Possibly because no one with any power ever thought it was necessary. Police departments — until very recently — often had the full support of elected officials. Those questioning officers’ actions were considered outliers, fringe representatives that were sure to be ejected during the next election cycle.

Law enforcement agencies also have powerful lobbyists who are capable of gutting legislation demanding more accountability and capable of tying agencies into restrictive contracts that forbid retention of information about misconduct or excessive force deployment. Police unions are one of the greatest contributors to decades of opacity and abusive behavior by law enforcement officers.

At least the head of one of Maine’s police unions seems to recognize the current state of affairs is, at the very least, problematic.

“Is that acceptable? I think we’ve got some work to do to be able to make sure that we’re a little more uniform,” said Augusta Police Chief Jared Mills.

Mills is also the president of the Maine Chiefs of Police Association. He offered no excuses for department heads not responding but explained how strained resources might make data requests complicated.

“They don’t all have that same data system. They don’t have that stuff at their fingertips,” Mills said.

That excuse doesn’t hold up, though. Why don’t they have this stuff at their fingertips? It would seem to be essential law enforcement data — something that can help supervisors and police officials head off problems before they become too big to handle. Data like this would show if more training is needed or if some officers should be forced to seek employment elsewhere.

It’s not there because law enforcement agencies have comforted themselves by assuming everything is ok because there’s no data that contradicts this assumption. And the assumption remains intact because agencies avoid collecting any data that might undermine it.

Now, the guy quoted in this article? The police chief who also heads the police union? He could institute these changes. He runs a union that has the power to persuade state lawmakers to mandate uniform reporting and alter union contracts that may forbid the tracking and retention of these complaints. But somehow I think he won’t. It’s one thing to recognize a problem when approached for comment. It’s quite another to actually go to war with the people you represent.

Filed Under: bad cops, complaints, maine, police, transparency, use of force

Gov't Accountability Office Says FBI Should Probably Just Give Up The Use Of Force Reporting It Never Bothered Doing

from the waste-not,-left-still-wanting dept

In 1994, Congress passed a law (the Violent Crime Control and Law Enforcement Act) that ordered the Department of Justice to “acquire data about the use of excessive force by law enforcement officers” and publish an annual report. The DOJ immediately handed this responsibility off to the International Association for Chiefs of Police, which produced a single report in 2001 and has done nothing since.

The problem was the process was entirely voluntary. And it doesn’t appear that, outside an act of Congress, it can be changed. The DOJ does not directly oversee any state or local law enforcement agencies. The involvement of the IACP might have encouraged more participation if the IACP was interested in participating in this data gathering, but the facts speak for themselves. There’s nothing in this for law enforcement. And since no one can force law enforcement to send the DOJ use-of-force data, participation by the nation’s 18,000 law enforcement agencies (as of 2015) was as low as 3%.

In 2015, as excessive force deployment and killings by police officers repeatedly gained national attention, the FBI declared itself the hero and rode to the rescue, promising a new, better, still-entirely-voluntary use-of-force database. This time it offered a carrot — federal funds — in exchange for information. It did better than the previous (lack of) effort, managing to gather data from nearly than a third of US law enforcement agencies.

Better than nothing, I suppose. But that’s the thing: it’s still nothing. The FBI has gathered this hugely imperfect data set from a smallish group of self-reporters. And it has done nothing with the data. The annual reporting has never materialized. Thanks to this wealth of inactivity, the FBI and DOJ may soon be able to give up this responsibility — one they clearly never wanted. It won’t be because it can’t be made to work. It will be because no one wants to put in the work. And it may also be because the Government Accountability Office is suggesting the DOJ stop spending tax dollars on work it clearly isn’t doing.

[D]ue to insufficient participation by law enforcement agencies, the FBI has not met thresholds set by the Office of Management and Budget for publishing use of force data or continuing the effort past December 2022. Further, as of February 2021, the FBI had not assessed alternative data collection strategies.

That’s from the summary of the GAO report. The full report [PDF] goes into more detail, but the conclusion is still foregone: the DOJ never wanted to do this and has spent most of three decades not doing it. The failures found by the GAO aren’t the result of the DOJ and FBI struggling mightily and still coming up short. It’s a mandate the DOJ received in 1994 and immediately abandoned. The 2015 effort was mostly PR — an attempt to show the federal government cared enough about police violence to at least try to tally it up. And the FBI put in all the effort that empty promise required.

Here’s the half-assery the GAO observed. Both the BJS (Bureau of Justice Statistics) and the FBI were supposed to collect and publish data. Here’s what the BJS managed to do with its time, energy, and personnel over the past half-decade:

[O]ver the 5-year period from fiscal year 2016 through fiscal year 2020, BJS published results from this survey twice. Further, one of those publications was a retrospective report of previously published data that were collected from 2002 through 2011.

Confronted with this failure, the BJS asked the GAO if it had tried looking somewhere else for the data the BJS was supposed to be publishing. The GAO looked and said that’s not even the same thing.

BJS officials also stated that the Law Enforcement Management and Statistics Survey was another means through which DOJ published required data on excessive force. However, BJS publishes information on policies and procedures related to officers’ use of force collected through this survey, but does not publish any information specifically on excessive force by law enforcement officers.

A total lack of effort by everyone involved. The DOJ said the FBI collected the information (but did not publish it) and claimed that ended the DOJ’s involvement — a strange assertion for an agency directly overseeing the FBI to say. Stranger still, the FBI said it had not been informed this was its job, despite making two public announcements (2015 and 2019) saying it would be doing these things.

To ensure Americans were deprived of any useful info about excessive force deployment, the FBI deliberately made a mess of the data given to it by a small percentage of law enforcement agencies.

According to FBI documentation, the National Use-of-Force Data Collection does not differentiate between incidents involving reasonable force and incidents involving excessive force. Specifically, the collection does not contain information on whether officers followed their department’s policy or acted lawfully in any given incident. Therefore, it is unclear how DOJ could use these data to publish a summary on excessive force by law enforcement officers.

And again, another failure to do the things asked of it by the FBI.

In addition, the FBI began collecting these data in 2019 and has not yet published any use of force incident data collected through the program…

As was noted above, the FBI and DOJ have no backup plan. If their original effort didn’t work, the solution appears to be to let it die. The GAO says no alternative efforts have been considered to ensure greater collection or more frequent publication. (Or, indeed, ANY publication of collected data.) The proposals the GAO heard from these entities suggest officials were just making stuff up on the spot.

When you’re concerned about which agencies might be engaging in more deadly/excessive force than others (as was partially the point of this database), a random sample and some extrapolation is going to provide cover for agencies with endemic problems and paint an unrealistic picture about law enforcement force deployment.

The FBI’s business plan for the collection states that using a sample of agencies may be a potential alternative data collection mechanism.

At this point, the FBI only has a “sample of agencies.” The collection has never approached 100% of the nation’s law enforcement agencies. At best, it has managed to collect police killing data from 55% of these agencies. When it comes to force deployment, the percentage is much lower.

Just to drive home the point once more: no one in the DOJ wanted to do this job. The Bureau of Justice Statistics has published 130 reports from 2016 to 2020. Total number of use-of-force reports during that same time period? One.

The good news for those people who spent years not doing what they were paid to do? They won’t have to not do it much longer.

[T]he collection itself may be discontinued as soon as the end of 2022.

That’s the way the FBI wants it. No news is good news. Or, at the very least, its news that can’t be disputed by data it barely collected and never published. All that’s left is the public perception of law enforcement force deployment — something that definitely hasn’t improved over the past five years. The nation’s law enforcement agencies — including those at the federal level — have managed to rack up nearly thirty years of non-participation trophies. Never investigating the problem means never having to confront the problem. And if you screw around long enough, people will stop asking you to do stuff you don’t want to do.

Filed Under: fbi, gao, police brutality, police shootings, use of force

Federal Court Says Sanctions Are On The Way For Portland PD Over Violations Of Protest Restraining Orders

from the rule-of-law-is-cool-until-it-applies-to-you,-I-guess dept

Police forces — both local and federal — greeted Portland protests with violence. To be sure, there were some violent protests. But officers of both varieties felt they should be able to target journalists and legal observers with the same force they were deploying against rioters.

Once the feds rolled into town, things got worse. This was met with litigation, with journalists and observers asking the court to make the cops play by the normal rules of engagement. If journalists and observers weren’t committing any crimes, they should be free to report and observe without fear of being beaten, shot at, or gassed.

The court agreed. So did the court above it, albeit belatedly. Injunctions were granted, prohibiting the use of force against the plaintiffs. These injunctions were immediately violated, resulting in more litigation.

It wasn’t just the feds, although the feds were the most immediately noticeable violators of this court-ordered relief. The local police were having problems keeping themselves from greeting non-violent protesters with violence. A federal judge has just ruled that the Portland Police Department (PPD) violated his instructions and his restraining order on multiple occasions. (via Courthouse News Service)

Back in June. Judge Marco Hernandez banned the use of tear gas by cops except in life threatening situations. Another modification to his order banned the use of rubber bullets and pepper balls against “people engaged in passive resistance.” According to Hernadez’s latest ruling [PDF], the Portland Police have continued to violate his orders.

The court cites several instances detailed by protesters. In at least three cases, PPD officers violated the court’s instructions on force deployment during a protest on June 30 — less than a month after Hernandez issued his first order.

As described above, FN303s and 40mm less-lethal launchers must be used “as outlined in PPB Use of Force Directive 1010” and “shall not be used where people engaged in passive resistance are likely to be subjected to the use of force.” FN303s and 40mm less-lethal launchers are impact munitions governed by ¶ 6.4.2 of Use of Force Directive…

The Court finds that three of the eight incidents involving the use of impact munitions violated the Order. These three incidents include: (1) two deployments of fifteen rounds from an FN303 against individuals carrying a banner (Incidents 2 and 3) and (2) the deployment of a few rounds from an FN303 against an individual picking up an unknown object between the protest line and the police line (Incident 9). The remaining incidents did not violate the Order.

In one instance, the PPD tried to justify its excessive force by claiming a banner held by retreating protesters could have injured officers.

Officer Taylor testified that he deployed his FN303 against an individual holding onto a banner because he believed the banner would later be used as a weapon. Specifically, he cited the following circumstances in support of his belief that the banner may be dangerous: (1) the atmosphere of the protest that day; (2) the movement of protestors behind the sign as though it was a shield; (3) the slow pace of the protestors holding the banner, causing interference with the police formation; (4) the protestor’s refusal to let go of the banner; and (5) the use of PVC pipe as the banner’s frame, which he testified can be reinforced with cement or nails.

We’re going to need a lot more than pure speculation, says the court.

But none of the circumstances cited by Officer Taylor suggested that this banner was a weapon or would be imminently used by protestors as a weapon.

And it’s not like the protesters were operating under the cover of darkness to manufacture a PVC-and-cloth weapon of mass police destruction.

Police officers had ample opportunity to observe the banner before Officer Taylor deployed his munitions. The incident occurred while it was still light out, and video shows that the long PVC banner was flimsy.

Unjustified. And a violation of the judge’s order.

And—most importantly—nothing suggested that the individual Officer Taylor targeted was engaged in “[a] threat or overt act of an assault, . . . which reasonably indicate[d] that an assault or injury to any person was about to happen, unless intervention occur[ed].” Use of Force Directive 1010 (Definitions). At most, the record shows that the individual who was refusing to let go of their sign was engaged in passive resistance.

While the PPD has mostly complied with the orders, it has not always complied with all the orders. Being mostly compliant simply isn’t good enough. The court says sanctions are incoming.

Defendant has failed to demonstrate that it took all reasonable steps to comply with the Order. The Court acknowledges that Defendant took some steps to ensure compliance on June 30. Captain Passadore, for example, read the requirements of the Order over the radio after calling for attention from all officers involved in crowd control on the evening of June 30. There is also evidence in the record that Captain Passadore directed all supervisors to ensure that all officers were informed of the requirements of the Order. And the Court is cognizant that PPB has been stretched thin over the past few months with the same RRT officers working endless hours in response to ongoing protests. It is also aware of the effect the pandemic has had on PPD’s ability to conduct additional trainings. Nevertheless, the Court cannot conclude that a single radio transmission and a discussion with RRT officers and supervisors on June 30, 2020, constitutes “all reasonable steps” Defendant could have taken to ensure compliance with the Order that evening. Accordingly, the Court finds Defendant City of Portland in contempt.

Unfortunately, if this comes down to fines, the City of Portland will just dig into its bag of “Other People’s Money” and pay them. But it could result in further restrictions, which isn’t going to work out well for an agency that’s already demonstrated it can’t follow printed instructions.

Filed Under: 1st amendment, free speech, journalists, police, portland, portland pd, protestors, use of force

Law Enforcement Agencies That Acquire Military Gear Are More Likely To Kill People

from the what-a-surprise dept

Correlation is not causation, but if you gear yourself up like you’re going to war, chances are you’re going to treat the people you’re supposed to serve as enemy combatants.

This is what police departments have been doing for years. The federal government’s 1033 program allows local PDs to help themselves to military surplus, which includes armored vehicles, armored vests, assault rifles, and grenade launchers. Cops have stopped looking like cops and started looking like combat units. The end result appears to be deadlier police forces more interested in shock, awe, and escalation than defusing tense situations.

A study of 1033 program use in Georgia by the Atlanta Journal-Constitution shows the more law enforcement gets from the military, the more often it uses deadly force.

A new AJC analysis of a decade of records across 651 Georgia police departments and sheriff’s offices found departments that took more than $1,000 in 1033 money, on average, fatally shot about four times as many people as those that didn’t. The newspaper’s analysis used the military’s database and paired it with a database of fatal police shootings from across the state, controlling for statistical variables like community income, rural-urban differences, racial makeup, and violent crime rates.

The results paint a troubling picture: The more equipment a department receives, the more people are shot and killed, even after accounting for violent crime, race, income, drug use and population.

Only 7% of Georgia’s law enforcement agencies obtained military gear through this program. But that 7% was responsible for 17% of the state’s killings by law enforcement officers.

As the AJC points out, this correlation is only a correlation. It doesn’t prove the 1033 program is responsible for increased deadly force deployment. It only suggests a relationship between obtained military gear and increased killings. Getting more gear does not increase the number of killings by cops, but the fact remains agencies that have used the program are involved in more killings than agencies that haven’t.

Whatever link exists is partially psychological. Acquiring war gear instills a war mindset. Citizens become “civilians.” Criminal suspects become enemy combatants. Neighborhoods become war zones. And the rhetoric used by officers and officials reflects this mindset. None of this warfighter mentality reflects what’s actually happening in Georgia. The flow of military gear has remained steady, even as criminal activity declines.

From 2009 to 2018, police departments in Georgia received $43.5 million in firearms, vehicles and other gear from the military, a figure that experts believe is deeply discounted because the material is used. All that equipment has been requested despite the fact that violent crime rates in Georgia have dropped by one third over that period, according to FBI crime statistics.

Some may suggest the flow of military equipment to law enforcement agencies has resulted in a better-behaved populace. But there’s no correlation between armored vehicles and lower crime rates.

A newly published article by a group of scholars with the Emory University Department of Political Science found no relationship between the presence of surplus military equipment and lower crime rates.

Fortunately, there are some in the law enforcement community who recognize the damage the acquisition of military gear can do to community relationships, even if those items may be occasionally beneficial. Calhoun Police Chief Tony Pyle says he’s limited his acquisitions and has worked at reverting the war-like mindset in the department since he took over two years ago.

Pyle said he turned down the offer of a $750,000 armored vehicle, despite the fact that there are dozens of them in departments around the state.

“It was basically a tank with wheels, I said, ‘Absolutely not. We do not want that thing rolling down the streets of Calhoun,’” he said. “In my humble opinion, it’s more trouble than it’s worth.”

Pyle said he thinks military-style gear and clothing can have an impact on a department. Along with shelving the M14s, Pyle said he ordered officers to wear traditional police uniforms, instead of the navy blue combat fatigues they had worn in the city for more than a decade.

Unfortunately, there are still far too many agencies cultivating an “us vs. them” mindset. And the nearly-free equipment and weapons available from the 1033 program are too tempting to pass up. The streets are full of enemies. It only makes sense to prepare for war. If more “civilians” end up dead, that’s just the price they’re expected to pay for public safety.

Filed Under: 1033 program, law enforcement, police, police militarization, use of force