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Head of the Civil Rights Division Vanita Gupta Delivers Remarks at the NYU School of Law Center on the Administration of Criminal Law’s Eighth Annual Conference


United States

Good morning and thank you all for that warm welcome.  I want to thank the many law enforcement leaders, researchers and advocates in the audience – not only for sharing your expertise with us today, but also for the passion, service and integrity you bring to this work every day.  And I want to thank NYU’s Center on the Administration of Criminal Law for hosting this conference, as we come together for a robust, informative and engaging discussion about the use of force in American policing.

For the last many months, our nation has been engaged in an important national dialogue about police practices, community-police trust, racial justice, public safety and officer safety.  Around the country, controversial officer-involved shootings have set off protests, unrest and outrage.  Cell phone videos of particular incidents have gone viral on social media.  Tragic deaths, especially of unarmed young black men and women, at the hands of police; ambushes and assassinations of officers; and widespread community mobilization have brought policing issues from the periphery to the center of our public dialogue. 

Yet, as you all are well aware, these conversations are not new and are not just a response to high profile incidents – they are the latest stage in our decades-long public conversation about effective self-governance, public safety and the pursuit of justice.  Evaluating critically the relationship between law enforcement agencies and the communities they serve, particularly communities of color, has always been a key part of that dialogue.  Many people in communities of color, communities living in poverty and others perceive police, courts and corrections systems as arbitrary, biased and unfair.  These perceptions undermine the legitimacy of those institutions and place the public, law enforcement personnel and the health and well-being of communities at risk.

What I hope does not get lost in this conversation is that the overwhelming majority of the women and men who serve as police officers do their very difficult and sometimes dangerous jobs with honor, pride and distinction.  We know that the vast majority of police officers want to be, and want to be perceived as, part of the communities that they serve.  And I know that law enforcement and other members and leaders of the community alike feel a sense of urgency at the moment to address longstanding problems and rebuild trust.    

In both law enforcement and the communities they serve, discussions about the use of force include strong emotions and often profound pain.  I meet regularly with mothers and other family members who have lost loved ones at the hands of the police.  And I’ve also met officers who have been injured in the line of duty.  According to The Washington Post, last year in the United States, police fatally shot 990 people, 30 percent of whom were not armed with a gun.  According to the most recently available FBI data, in 2014, 51 officers – including two of New York City’s finest – died as a result of felonious incidents in the line of duty.

Today in our communities, we can also see this conversation around the use of force unfolding against the backdrop of a focus on other policing practices – including unlawful stops, searches and arrests – that can result in broken trust and built-up resentment.  The real question is what can we – law enforcement, advocates, government, academics and community members – do about these very serious issues?  How can we seize this moment where there is widespread engagement and focus on these issues to build a framework for real and lasting reform that makes our communities and our officers safer for generations to come?

It’s important to start any conversation about police use of force by recognizing that our constitutional democracy endows police officers with the authority to use force within limits.  A fair, transparent and equitable criminal justice system is one of the strongest pillars of this nation’s democracy.  And police officers are the front line of that system and the authority we give police is among the most profound in our constitutional form of government.  Courts measure this power against legal standards; police departments measure this power against legal and professional standards; and increasingly with video, the public is measuring this power against community values and priorities.

More than two decades ago, in Graham v. Connor, the Supreme Court established “objective reasonableness” as the standard for evaluating when law enforcement can be held liable for using excessive force against civilians.  The court acknowledged that objective reasonableness doesn’t translate into a “precise definition or mechanical application.”  It requires an individual analysis of the various factors in each case – including the severity of the crime, the imminence of the threat and the subject’s resistance to arrest.  And in the years since, federal courts have provided additional guidance about how to apply the legal standard of “objective reasonableness.” 

Where police officers violate the law, prosecutors have the ability to hold them accountable.  You’ll be hearing from state and local prosecutors throughout the day.  Let me talk for a minute about federal prosecutorial authority.

For decades, under two federal statutes known as Section 241 and Section 242, the Civil Rights Division has conducted thorough, impartial investigations of individual officers for criminal violations of constitutional rights.  This means pursuing criminal charges when the evidence supports them.  During the last seven years, we have charged more than 400 defendants for committing willful violations of constitutional rights under color of law and related offenses.  But it also means closing cases when the evidence does not support charges.  In use-of-force cases, federal law requires us to prove both that the officer used “objectively unreasonable” force and that he or she acted willfully – “for the specific purpose of violating the law” – one of the highest standards of criminal intent.  And sometimes there’s a real mismatch between community standards and expectations of what they think the law should be versus what the law allows for.

Many prosecutors right now around the country are wrestling with thorny questions about how to promote transparency and meet the public’s demand for information while protecting the integrity of the investigation; about the role of the grand jury process in a particular case; about why some investigations take a long time; about how best to close a high profile investigation when charges cannot be brought; and about how to proactively educate communities about the strengths and limits of applicable laws and the criminal investigation and prosecution process.  Among prosecutors, just as among law enforcement, the heightened public focus on police use of force has triggered important and tough conversations about professional best standards in a changing world.

Criminal prosecution, while important, represents a limited tool to achieve accountability.  In 1994, Congress gave the Justice Department an additional tool: the civil enforcement authority to determine whether a police department is engaging in a pattern or practice of constitutional violations, and if so, to remedy those violations.  The Civil Rights Division conducts fact-driven investigations to determine whether policing practices, including the use of force, comply with the Constitution and federal statutory law.  When we find a pattern or practice of conduct that violates the law, we work with the police department in question to bring real reform to its community.

Where we have to, we can resort to litigation to remedy the violations.  In most instances, we are able to negotiate an agreement in the form of a court-enforceable, independently-monitored consent decree.  These consent decrees can also serve as blueprints for reform around the country.  In addition, these consent decrees – as well as the recommendations of the President’s Task Force on 21st Century Policing and the work of our Office of Community Oriented Policing Service’s Collaborative Reform Initiative – can help police departments and the rest of the community initiate dialogue, conduct self-review and undertake meaningful reform before a critical incident occurs and before the Justice Department intervenes. 

As officers face an endless variety of situations, including sometimes dangerous conditions and contexts, week in and week out, they need additional guidance to understand how Graham v. Connor’s legal standard of “objective reasonableness” relates to practical decisions about when or how to apply force – decisions like whether to wait, strike or fire.  Clear policies, robust training and effective supervision can provide necessary guidance.  Effective police departments help officers translate the legal standard from Graham by ensuring that they receive proper training and instructions about what it means to use objectively reasonable force.  And these departments train officers to exercise their power and discretion lawfully, safely and responsibly.                     

Through our more than two decades of work in this field – and engagement with law enforcement, communities, policing experts within and outside the profession and studied law enforcement best practices – our agreements around the country, including in New Orleans; Cleveland; Albuquerque, New Mexico; Ferguson, Missouri; Portland, Oregon; Seattle; and just last week in Newark, New Jersey – advance a series of key principles and practices that law enforcement agencies can employ.  We believe that these principles and tactics can help officers avoid excessive and unnecessary force, including tragedies that can tear a community apart, while ensuring officer and community safety.

This approach begins by declaring an unwavering commitment to protecting human life and upholding the dignity of all individuals.  To advance that mission, and as detailed in many of our consent decrees, we aim to ensure that police departments adopt and apply the following principles: use force only to accomplish a legitimate public safety objective; use de-escalation techniques to minimize the need for force and increase the likelihood of voluntary compliance; use force in a manner that avoids unnecessary injury to officers and civilians; never use force to punish a person, or to retaliate against criticism; and when officers do use force, they should immediately render necessary medical care; following the use of force, police departments must ensure accurate reporting, adequate investigation and – for unreasonable force – discipline and, in appropriate cases, referral to prosecuting authorities.

Specific guidance from police departments can help translate principles of de-escalation and respect for the sanctity of human life into practice.  Often, this guidance is set by the profession itself or by professional association best standards – standards regularly set above legal requirements to better protect both officer and public safety in tense situations.  Through our agreements, we promote guidance that incorporates – with some exceptions – a series of clear tactical rules, including bans on choke holds and on shooting at moving vehicles.  Other rules involve carefully limiting the use of tasers in drive-stun mode as a compliance technique as well as not tasing pregnant women, children and other vulnerable populations.  From guiding principles to specific rules, de-escalation embodies a critical approach for officer and community safety.  By buying time, creating distance, keeping space and calling for back up, officers can expand their options.

Obviously, no situations are identical; each one requires situational awareness and context.  But de-escalation training and clear policies can increase the likelihood of safe outcomes in potentially dangerous situations.  They demonstrate how a commitment to the sanctity of human life affects decision-making in the field.  And there are thousands of times when officers manage to safely resolve tense and volatile incidents – such as one incident caught on video last November in Camden County, New Jersey, demonstrates – without using excessive force.  We don’t hear much about these stories of lives saved and tragedies prevented.  But we should amplify these stories.

We also need to recognize that there are many situations where de-escalation is simply not an option.  Officers confront a range of situations in which they must exercise their discretion.  Sometimes, officers respond to situations where – consistent with the legal standards – the use of force is both justified and necessary to protect officer and public safety. 

We need to do more to support officers in the field.  First, these are stressful and sometimes traumatic jobs that over time can take their own toll on officers, and access to counseling and other support can be vital to ensuring officer wellness and appropriate officer-community interactions on the street.  Second, officers deserve support and training to use de-escalation on the job.  Support includes crisis intervention training.  The reality is we ask more from our police officers than anyone can reasonably expect.  Daily, officers encounter people in crisis, including people struggling with mental illness, alcohol and drug addiction and anger management – all social problems that we have overused our criminal justice system for and problems that many officers never envisioned would consume so much of their time.  As a society, we share a collective responsibility to address these issues by ensuring that individuals in crisis receive care from medical professionals and social services.  But officers are often the first responders.  And even as public support for diversion and community-based interventions expands, we owe it to officers to ensure they get the training they need to recognize challenges like mental health conditions, language barriers, hearing impairments or drug use.  Crisis Intervention Training and CIT officers can help address this need.

We have seen the impact of this approach in Seattle, where a federal monitor recently found that the Seattle Police Department’s new crisis intervention policies, training and operations are in initial compliance with our consent decree, praising officers for interacting “compassionately and with an eye towards treatment, with those in crisis.”  The monitor cited a story of two officers who arrived at the scene of an intoxicated individual in crisis holding two large butcher knives in each hand.  The officers withdrew from the apartment, safely created distance and established communication with the subject.  The subject later followed instructions, and the officers placed the subject into custody without additional resistance from the subject and without exposing themselves to undue risk.  The monitor praised how the officers worked together to protect both each other and the safety of the suspect.

The force principles I’ve been discussing not only help law enforcement stay on the right side of the constitutional line and avoid unnecessary tragedies; they also build trust with the local community.  We know that when it comes to how residents see their government, procedural justice matters.  People want to trust the police.  People need to trust the police.  Decades of research shows that fair and respectful treatment matters sometimes just as much as the ultimate result of one’s interaction with police.  Surveys conducted of law enforcement and the community over time during the life of our agreements demonstrate that constitutional policing builds trust between law enforcement and the communities they serve, which in turn allows for more effective crime fighting.  This makes everyone in the community – residents and officers – safer.

We also recognize the value of transparency and the importance of data collection to help review and evaluate use of force trends.  Speaking of data, we need to have accurate and consistent data from across the country – both on excessive force and on officer-involved shootings – to better understand the trends and numbers behind these issues.  The Justice Department recognizes this and we continue to work closely with law enforcement to develop national consistent standards for collecting this kind of information.

The Civil Rights Division has encouraged law enforcement agencies to consider using body-worn cameras to demonstrate transparency, document evidence and deter inappropriate actions by both law enforcement and the public.  Preliminary studies have shown strong evidence of improved officer-community engagement and reduced civilian complaints following implementation of a body-worn camera program.  But body-worn cameras are not a panacea.  Other studies have demonstrated that video from cameras cannot be relied upon to present a definitive account of any encounter, and their adoption alone cannot cure deeply rooted problems related to accountability and trust between police and communities.

By focusing on these themes in our consent decrees, we continue to see tangible results and signs of success.  In Los Angeles, independent researchers from Harvard University wrote this in 2009 about the tangible benefits for officers and residents alike in the years immediately following our consent decree: “Since 2003, as the police use of force declined, so did crime.  As police-community relations improved, even in the poorest neighborhoods, so did public safety.”  In Detroit, after about a decade with the police department under a consent decree, we found improved training and revised use-of-force policies helped lead to a nearly 60 percent decline in the average number of officer-involved shootings per year.  In Seattle, a federal monitor examining a three-month period found that officers used force in only 2 percent of roughly 2,500 encounters with individuals in crisis.  And in East Haven, Connecticut, where the police department revised nearly 85 policies in a single year, residents continue to report improved relations with police.

So we believe in these use-of-force principles, and we think they have been successful around the country.  But we also recognize that there’s an intense, passionate discussion taking place today about the use of force.  From Ferguson, to New York, to Chicago, to Baltimore, we can see that discussion between law enforcement and the communities they serve – as decades of mistrust have been ignited by high-profile incidents and crowds have taken to the streets.  We can see that discussion within the police community itself, as chiefs and sheriffs, command staff, line officers and union officials wrestle with the tough questions needed to build consensus around reform.  We can see that discussion among prosecutors, as they try to balance the demand for transparency with the need to protect the integrity of investigations.  And we can also see that discussion among advocates – as traditional civil rights groups meet a new generation of activists to discuss the most effective strategies for demanding change.

Each day, we see these discussions unfold.  But notice where we all agree.  Whether officers or chiefs; whether advocates or academics; and whether prosecutors or private citizens – we want to reduce deadly encounters.  We want to keep families whole.  We want to respect human dignity.  We want to support and strengthen officer safety.  And we want to rebuild trust between police and the communities they serve.

So yes, we might struggle over how to bring about those ends.  And we might debate which principles go too far or which ones don’t go far enough.  We shouldn’t fight this discussion.  We should welcome it.  And we should seize this opportunity.  Thoughtful and engaged debate means that we can actually achieve change.  It means we can create a lasting impact on the professions we love, the communities we serve and the society we share. 

Within communities and within law enforcement itself, I see a commitment to engaging in these hard discussions and to progress.  But I also believe strongly that we need to include more voices in this conversation.  We need to make space – including at conferences like this one – not only for police chiefs, but also for line officers, for union leaders and for marginalized community members.

In the Civil Rights Division, we view this process of stakeholder engagement as a critical part of our investigations and process for reform.  During our investigations, we engage with an array of stakeholders: line officers and detectives; police supervisors and command staff; police unions; residents and faith, business and other community leaders; and civil rights advocates.  Speaking to line officers and community members strengthens our work.  In Newark, for example, we met with rank and file officers; set up a toll-free hotline; and held community meetings to gather information from all quarters.  In crafting reform, we pushed for community input on police policy and a role for residents in ensuring officer accountability.

And on a regular basis, I personally engage with a wide range of stakeholders – from community members, to civil rights and law enforcement leaders, to advocates, to researchers, to policing organizations and unions – including, among others, the International Association of Chiefs of Police, the Fraternal Order of Police, the National Association of Police Officers and the Police Executive Research Forum – to ensure we take into account their expertise, their experience and their viewpoints.

Right here at NYU, I learned that even if we don’t always agree, we must always allow people to speak their minds, to share their ideas and to challenge our views.  And precisely at those moments when we do not agree, I always find the discussions most valuable, most instructive and most insightful. 

As we engage in this critical conversation today – and in the days ahead – about the use of force in policing, I want you to know that I understand the intense emotions, attitudes and opinions at stake.  And I see the challenges.

History teaches us that real change requires embracing challenges.  More than half a century ago, Dr. Martin Luther King Jr. spoke from the steps of the Lincoln Memorial “to remind America of the fierce urgency of now,” warning us that “[i]t would be fatal for the nation to overlook the urgency of the moment.”

As we continue to lead these tough but critical conversations and reform efforts around the use of force in policing, may we be motivated by the “fierce urgency of now” and by mutual respect.  May we see this moment of intense, passionate engagement as an opportunity to drive change.  And may we seize the chance to make our communities and our officers safer in the days and decades ahead.

Thank you.

Civil Rights
Updated August 19, 2016