Shielded from Justice: Police Brutality and Accountability in the United States
Federal Data Collection
It is self-evident that the Justice Department needs a more coherent and accessible approach to the collection and analysis of police abuse data. Without essential information about the problem of police brutality, the department cannot act effectively to combat it. Data collection on police abuse is particularly important because the lack of national data has served to perpetuate a situation in which local and national officials can claim that there is neither a continuing nor a nationwide problem; it also makes it more difficult to identify which police departments are most abusive. Moreover, the lack of information supports the federal position that the problem is "local," because the national government has no useful knowledge about it. And knowledge about the problem on a national scale is, of course, essential to the formulation of policy.223
In 1991, in response to the uproar over the King beating in Los Angeles, the Justice Department compiled a report on "official misconduct" complaints between 1985 and 1990, with the purpose of determining "to what extent, if any, a pattern of police brutality by employees of law enforcement agencies is shown from the data maintained by the Civil Rights Division."224 The report acknowledged that, because there is no agency that collects data on police brutality nationwide, the computer data on official misconduct complaints received by the Civil Rights Division were used, and these were severely limited because:
The Justice Department report summarily concluded, "We respectfully submit that no pattern emerges from these figures."226
At the time the 1991 report was announced, police abuse experts scoffed at plans for producing it because, they contended, it required a sophisticated complainant to seek redress from the federal government. The number of complaints received at the federal level was, and remains, so insignificant that there was little reason to suppose that the number and type of complaints would reflect the severity of problems in communities around the country. At the time the study was announced, a newspaper reported, "[T]he justice department move was a finely calculated attempt to deal with the anger of lawmakers, civil rights groups and others over the L.A. [King] case while not offending police officers and their advocates."227 Others asserted that if the Justice Department really wanted to know which cities had serious abuse problems, it could simply have asked attorneys and activists working on the issue.
In addition to the acknowledged shortcomings of the data maintained by the Civil Rights Division - and of the Executive Office of U.S. Attorneys' own, incompatible but somewhat parallel database, described above - critics of the report found its analysis to be flawed. In their study of police abuse, Above the Law, the authors pointed out, for example, that the Justice Department found no nexus between the number of complaints received by a police department and three key variables: the number of arrests, the number of sworn officers, and the size of service population. The Justice Department's conclusion that no pattern had emerged appeared to be misleading: As observed in Above the Law: "In the gentlest possible terms this is a non sequitur of such obvious dimensions that it can only reflect conscious avoidance of the facts."228
Finally, in 1994, Congress required that the Justice Department collect those data on police abuse that had clearly been lacking. The Violent Crime Control and Law Enforcement Act of 1994 requires the attorney general of the United States to collect data on excessive force by police and to publish an annual report from those data.229 Nearly four years later, the Justice Department is still wrestling with this task, and no annual report has been produced. In April 1996, the Bureau of Justice Statistics (BJS) and the National Institute of Justice (NIJ), both of the Justice Department, published a status report on their efforts to fulfill the requirements of the law.230 And in November 1997, the BJS released a second "preliminary" report about its efforts, titled, "Police Use of Force: Collection of National Data."231
The 1997 report described the findings of a 1996 pilot survey of 6,421 residents, which was intended to guide future development of a questionnaire on this topic. The survey attempted to ascertain from respondents the types of encounters with the police they had experienced during the previous year - both favorable and unfavorable. Its sample contained residents whose sole encounters with police had been at their own initiative, as in asking directions or complaining about a noisy neighbor along with those who had been the object of police action; and in the unfavorable category, its polling concerning individual perceptions of treatment by the police was not geared to distinguishing the legitimate use of force as an aspect of law enforcement from the excessive use of force. The findings were accordingly of little or no relevance to the congressionally mandated task at hand.232 The survey's limited pool makes analysis difficult, but it does appear to indicate that police officers generally do not use or threaten to use force against most residents - a point that was not contested by those concerned about the use of excessive force. What the survey fails to show is any type of trend regarding: situations commonly leading to the use of excessive force, police departments that appear to use force more frequently than others in similar situations, or what type ofinvestigation or finding followed the reported abuse. Instead, a great deal of the report describes findings from the survey that are entirely unrelated to incidents involving the excessive use of force by police officers, and instead describe situations in which residents request assistance from the police.233
The November 1997 BJS report also included a summary regarding the second half of its efforts to collect information on use of force (there was no mention of use of excessive force, as mandated by Congress). To this end, the BJS and NIJ had funded a project by the International Association of Chiefs of Police (IACP), which in turn was working with the State Associations of Chiefs of Police, to develop a uniform set of data on use-of-force incidents, as reported by police officers themselves. Having left the reporting on themselves to the police, the federal government received predictably partial and inconclusive responses. The report stated that nearly 400, out of more than 13,000 city, county, and state police agencies, "indicated an interest" in the project, but it appeared far fewer than 400 agencies were actually providing any information.234 Under the "procedures to protect agency identification," the report explained that these data, as provided to the Justice Department, did not include the name and location of each participating agency, making its stated goal of "comparable statistics on the use of force" impossible.235
As this report is completed, a preliminary summary of the IACP's use-of-force project has recently been made available. Time does not permit a thorough analysis of the summary, but the report notes that information was collected on a voluntary and anonymous basis from a small percentage of police agencies and that theinformation was not nationally representative.236 The summary states that one of "the most striking results" of the project has been the scarcity of force-related complaints against officers (as reported by the agencies) when force has been used. During 1996 and 1997, the summary found that there were 3,972 incidents of the use of force, with twenty complaints - one complaint was sustained.
In sum, the preliminary reports have avoided the crucial question that Congress asked the Justice Department to answer. We call on the Justice Department to refocus its efforts, reallocate its research grants, and produce a report responsive to its mandate on this issue. Without the information requested by Congress, and more, it is extremely difficult, if not impossible, for governments and police departments to craft enlightened policies that balance the importance of public order with the absolute requirement that the state protect anyone in its jurisdiction from human rights abuses at the hands of police officers.
According to the reports, inadequate funding had been provided for the data collection project (the police-public contact survey or use-of-force database). The BJS and NIJ fund the IACP's use-of-force database project, and the IACP had not requested funding for 1998. The November 1997 report stated, "[I]t is unclear whether the pilot efforts can be continued;" funding has been requested by the Justice Department for the pilot survey and use-of-force database, but none has been provided during the past three years. It is possible that, without funding, the last three years of pilot surveys and conferences about how to conduct this research will lead to no progress in gathering basic and essential information about the use of excessive force. And, if funding is made available, the continued reliance on random sampling that provides little information about excessive force incidents and counts on police officers voluntarily to report relevant incidents will lend little insight into this issue. A less superficial approach is required. Random surveys alone - such as the one initiated - tell the public very little about the extent of this problem, or the ways individuals who feel that they have been abused are able to seek accountability for violations by officers. Community activists, civilian and citizen review agencies, civil lawsuits filed against the police, and specialized reports on police abuse (such as past reports by special commissions) should be utilized. Furthermore, continued reliance on voluntary reporting should be replaced with a federal requirement that police departments receiving federal grants provide data on the use of excessive force. (See Recommendations.)
232 It should be noted that this type of household survey does not, by definition, include individuals who are homeless, institutionalized, or incarcerated - groups likely to have had negative encounters with police officers, including the use of excessive force.
233 The report contains appendices, but only one table out of six addresses the questions relating to the use of force; one appendix is dedicated to sample answers from respondents, all of which are unrelated to use-of-force incidents and answers to those questions. For example, a sample survey form shows that individuals who alleged use of force were also asked whether they attempted to file a complaint or lawsuit about the incident, but no information is provided regarding actions taken, or not taken, by individuals alleging threats, or use, of force by officers.
235 The report also stated that, among the Justice Department's goals, is "learning from police what kinds of information they maintain on their contacts with the public." So far, whatever the BJS has learned about police departments' record-keeping on incidents of excessive force has not been made public.
236 The summary states that anonymity and volunteerism were necessary to "bridge the natural reluctance of the contributor and inspire the accuracy of the contribution." The summary also states that police agencies would have feared providing raw data that could be used to support a pattern or practice investigation by the Justice Department, even though that use of the data is prohibited.
© June 1998
Human Rights Watch