Democratizing Knowledge, a series by the Stanford Center for Racial Justice is a regular series. It breaks down complex racial issues to make information more accessible and understandable for all. Elias Rodriguez is a Research and Policy Fellow who examines the state criminal prosecutions against police officers and the difficulties involved in proving guilt under state law for excessive use of force.
A series of high-profile events in 2020 brought to light the long-standing problem of excessive police force. For starters:
- Minneapolis officers killed George Floyd after an officer inserted his knee into Floyd’s back.
- Officers shot in random shots into Breonna Taylor‘s apartment while they were carrying out a warrant for no-knock.
- Officers killed Rayshard Brows in Atlanta after the 27-year old ran off with an officer’s Taser.
The officers were charged with state-law crimes for the deaths of Taylor, and Floyd. Minnesota was the only state to successfully convict its officers for their use of force. These three cases illustrate the difficulties involved in charging and convicting state officers for using excessive force.
This is also indicative of the nationwide data about how infrequently prosecutions charge officers for duty-related use of force. These prosecutions are also often unsuccessful. In Arizona 600, there were seven years of police shootings. All but one resulted in prosecutors filing charges. The prosecution was dismissed by a jury.
It is hard to prosecute officers who use excessive force. This is because police are legally authorized to use force. Officers use force legally, it is clear. However, officers are not allowed to use excessive force in situations where they are legally required.
This essay explains how state and local prosecutors charge officers for using force, and what obstacles they face. These prosecutions are also affected by the state use of force statutes as well as police department use-of-force policies.
How can a prosecutor indict a police officer for a state crime?
Officers who are accused of excessive force can be charged by the prosecution with a variety of criminal offenses, including assault, battery and homicide. Officers are authorized to use force by state law. Citizens can delegate power to the state to use forceful and violent methods in order to fulfill legitimate government interests such as law enforcement. Under certain circumstances, officers may justify committing what might otherwise be considered assault, battery or murder during an arrest.
Prosecutors must prove that the officer was not only guilty of the crime they claim he committed (assault or battery, murder, etc.) but also that the officer used more force than the state authorized. No crime was committed if the officer’s conduct was within law-given authority.
The state attorney general Keith Ellison convicted Chauvin and other officers in the Floyd killing trial. These were second, third and fourth degree murders and second-degree manslaughter. Ellison had to prove Chauvin’s murder and manslaughter elements in order to proceed with the indictment and conviction. Ellison also had the task of proving Chauvin exceeded the authorized force under the Minnesota force use of force statute.
How much force do states authorize?
Each state has the right to determine how much force officers can use in different situations. The U.S. Constitution requires that states’ authorization language meet minimum standards. In Graham v. Connor the U.S Constitution and subsequent cases have held that officers may use force as long “objectively reasonable” in light of the facts and circumstances. This standard guides officers in determining whether the force used in an encounter is constitutionally acceptable.
States and municipalities have the option to go above or be more inclusive and give more rights than the federal minimum “reasonable officer standard”. States can define what type of force they allow and not; this could also be used to limit the amount and frequency of force that officers can use.
However, many state laws closely mirror federal law for determining if an officer’s use of force was legal. Federal law requires that courts look at each case’s “facts, circumstances, and legal basis” in order to determine whether a force was reasonable, as per Graham. The “facts” and circumstances include, among others, the gravity of a crime and the risk of serious injury to or death to officers or the public. These circumstances and the use of force must be viewed from the point of view of a “reasonable official on the scene.”
The jury instructions were introduced by the prosecutors in the case against Chauvin. They were based on Minnesota law. According to the instructions, “[n]o crime can be committed if a law enforcement officer’s actions are justified by their use of reasonable force.”
Further, the jury instructions stated that the “kind” and “degree” of force are limited by what a reasonable police officer in the same circumstance would believe necessary. This language is consistent to the federal law standard Graham. The instructions instructed the jury to consider the facts that a reasonable officer would have known at the exact moment an officer used force.
Both Graham, and the Minnesota jury instructions show that courts applying federal law concepts judge reasonableness from the hypothetical perspective of a “reasonable officer”. You could argue that the Minnesota jury instructions went beyond Graham in requiring that the force used must be necessary. But, just like Graham the instructions determine what force is necessary in the same situation. In order to prove the officer’s authorization defense, the prosecutors will need to show that the officer acted unreasonable–again, as a reasonable officer.
How can prosecutors prove that an officer acted unreasonablely?
To bring charges against any defendant, prosecutors have to believe that the “admissible” evidence is sufficient to show to a unanimous jury beyond reasonable doubt that the defendant acted in a manner that violates the criminal statute. The prosecutor must also believe they can prove any defense that the defendant may raise. If the prosecutor is unable to conclude that the evidence meets these standards, they are bound by an ethical obligation not file charges.
The prosecutor must prove the officer’s guilt. However, prosecutors have difficulty showing juries evidence of reasonableness when scholars call the standard “indeterminate”.
When trying to prove that an officer acted unreasonablely, there are two problems. A prosecutor might need to call another officer into the witness stand, as reasonableness is judged in the light of reasonable officers. The officer being accused of committing a crime would likely have received similar training. The officer best equipped to testify against the defendant-officer would be an officer in his own section. What officer would testify against their colleague defendant-officer?
The Chauvin case seems to be a very unusual case. The trial saw prosecutors call 50 officers from Minneapolis Police Department (MPD), to testify against Chauvin, including the former acting Chief of the MPD. But, in an international case, where there is no movement for civil rights and protests, would a prosecutor still agree to call officers to testify against another officer? Local prosecutors often call officers to testify against civilian defendants, and they work closely with the police departments. If a prosecutor asks an officer to testify against another officer, would he risk a good relationship with the police department?
Second, notes that reasonable officers must consider how officers perceive the threat in different situations. This ” warrior mentality is often taught to officers. . . This mentality makes policing less safer for officers and civilians.” This mentality is often reflected in the testimony of officers who are called to testify on the stand.
Defense attorneys in Chauvin’s case found Barry Brodd, a former California officer who testified that Floyd was kneeling on his neck for nine minutes while he lay face-down on the ground. Brodd also said that Chauvin seemed fearful of passers-by who advocated for Floyd.
This suggests that Chauvin’s perceived threat from these witnesses was enough to justify Chauvin’s restraint against Floyd. Brodd said the witnesses were “part and parcel of an officer’s conditional awareness.”
Arguably, charging and convicting Chauvin required a perfect storm of factors: the external public pressure of nationwide protests; a willingness of a prosecutor to charge him; and the testimony of multiple police officers in Chauvin’s own department–including the Police Chief. It can show how a prosecutor may not believe they have enough “admissible” evidence to prove an officer acted unreasonablely without the consent of all three.
Does force policy use help to prove reasonableness?
Brodd stated in Chauvin’s case that the officer’s actions “follow[ed]] Minneapolis Police Department policy” and “current standards of law enforcement.” However, the then-acting Chief stated that Chauvin was acting “in no way shape nor form [compliant] with] policy”. This would prove that the officer’s actions were not legal. In many cases, even though an officer violated their department policy, prosecutors and grand juries declined to charge the officer with a crime. Eric Garner Tashii Farr and Anthony Alvarez are just a few examples.
A prosecutor may admit department policy or training in evidence in a criminal case against an officer. This is dependent on the state where the trial takes place. State courts have the power to set their own procedures regarding whether or not they will admit force policies or training materials. In criminal trials involving the question of whether the defendant-officer acted reasonably, some state courts have accepted department policy and training, particularly Connecticut or New Mexico.
However, mere admission of a department policy or training does NOT guarantee that a police officer will be found guilty of violating it. The federal law and the persuasive precedent of higher courts will determine how much weight an officer’s admitted policy or training plays in determining whether he acted reasonably. Each state court cited federal law in the New Mexico and Connecticut cases.
The U.S. Supreme Court stated an officer won’t lose their government immunity simply because they violate statutory or administrative provisions like policies on police use of force. In an appeal against a federal criminal case against an officer, the appellate Court stated expert police testimony concerning police standards can sometimes be “unhelpful” and therefore irrelevant in determining whether an officers acted reasonably. An officer could violate their department policy, but still be deemed to have acted reasonably.
Why is force policy important?
In order to charge and convict officers for excessive use of force, the prosecution faces a difficult task. They will encounter obstacles such as codes of silence, difficult relationships with officers and an elusive authorization standards. This uphill battle can be overcome by interceding before prosecutors. By laying out clear guidelines for how a community expects officers conduct themselves, it may reduce incidents of police violence and help them make the difficult decision of whether or not to prosecute excessive force officers.
Police agencies and communities need to work together, regardless of whether they are using the Model Use of Force Policy of similar guidelines.
Disclaimer: These facts were gathered from academic literature and public news sources. They are believed to be accurate, but have not been verified for accuracy. This analysis is based on the opinions of our staff. It is meant for education purposes and policy discussions.
Credits: New York Times screenshot and NPR screenshot. Wikimedia Commons/Lorie Shah