A Simple Solution to the Public Health Crisis of Police Brutality in the Black Community
Police routinely violate the public's constitutional rights often leading to escalation of conflict. There is a simple solution.
In the wake of George Floyd’s fatal encounter with police, there has been a nationwide movement demanding an end to the excessive use of force by police. A Black person is three times more likely to face the use of force by police and 2.5 times more likely than a white person to be killed by police. The deaths of Breonna Taylor, Eric Garner, Michael Brown and many others have accelerated the urgent need for change within police departments.
In response to the public outcry for change, many police departments are amending their policies to restrict certain types of use of force. Others are implementing training on bias and de-escalation. These efforts are bound to be ineffective overall due to the fact that there are more than 12,000 local law enforcement agencies in the United States. Further, statewide and U.S. congressional efforts ignore one of the main causes of police brutality in the black community.
There are upwards of 60 million police-public encounters in the United States each year. During these encounters, the police routinely violate the constitutional rights of members of the public as a practice of normal policing, often leading to escalation of conflict between the police and members of the public.
To fully appreciate the scope of these constitutional violations and problems they present, one needs to understand the nature of police-public encounters. There are three tiers of police encounters:
1) Consensual Encounter, 2) Investigative Detention, and 3) Arrest.
Consensual encounters are the most frequent interaction between law enforcement and the general public. Consensual does not mean that the officer has obtained the consent of the person being questioned. It simply means that the person is not being detained or arrested. A consensual encounter occurs when an individual is approached by a police officer and the officer initiates a conversation. A consensual encounter does not involve police commands, force, or lights, and sirens. There is no need for a crime or even a suspicion of a crime to have occurred for a consensual encounter to take place. The officer may ask you questions and you have the right to refuse to answer. During a consensual encounter, you have the right to walk away and tell the officer you do not wish to speak to them. In some states you can even refuse to identify yourself.
The test to determine if a police officer is conducting a consensual encounter or an investigative detention is whether a reasonable person would not feel free to leave. Most people would feel they are not free to leave if the officer is asking the individual questions in a forceful manner or if several officers surround the individual.
If an officer shows authority in a manner that restrains the individual’s freedom of movement such that a reasonable person would feel compelled to comply, the consensual encounter has now become an investigative detention.
The second level of encounter is called an investigatory detention. Also known as a Terry Stop from the legal case Terry v. Ohio, 392 U.S. 1 (1968). In Terry, the Supreme Court held that police may briefly detain an individual who they reasonably suspect is involved in criminal activity. The key term here is reasonable suspicion. In order for a police officer to detain a person for investigation, the officer must have reasonable suspicion that the person has committed, is committing, or is about to commit a crime.
During an investigative detention you do not have the right to walk away. A person does not have the right to refuse to identify himself. However, they do have the right to tell the officer they do not wish to speak to them. This is a person’s Fifth Amendment right to remain silent.
An investigative detention requires proof of well-founded, articulable suspicion of criminal activity. Whether an officer has a found suspicion for a stop depends on the totality of the circumstances, in light of the officer’s knowledge and experience; a bare suspicion or mere hunch that criminal activity may be occurring is not sufficient. In other words, it is against the law for a police officer to conduct an investigative detention without reasonable suspicion of criminal activity.
During this brief detention, the police officer may “frisk” your outer clothing, if he or she has reason to believe you have any weapons on you. This is done for the officer’s safety. However, during this frisk, if the officer feels something from plain touch and can tell it is contraband they can then do a full search of your person because now they have probable cause to conduct a search.
After this detention, the officer must either let you go or, if probable cause is found, make an arrest.
The above is and example of a Tier 2 Investigative Detention done correctly
The last tier of police encounters involves an arrest. An officer makes an arrest by physically restraining a person or by using authority in order to show that the individual is not free to leave. The officer must have probable cause that the individual committed a crime in order to make the arrest. Probable cause is the legal standard that a police officer must have in order to make an arrest, conduct a personal or property search, or obtain a warrant for arrest.
Probable cause is a stronger standard than reasonable suspicion and because of that it requires facts or evidence that would lead a reasonable person to believe that a suspect has committed a crime.
A police officer may make an arrest without a warrant in several circumstances. A warrant for an arrest has been issued which is still in effect, and the officer knows of the warrant even though another officer holds it. A felony committed and the officer has reason to believe the accused committed the felony. A misdemeanor or felony committed in the officer’s presence. However, in some states, there are misdemeanor offenses where state law allows an officer to make an arrest without a warrant, and even when the crime was not committed in the officer’s presence.
But even under these circumstances, a civilian has a right to remain silent and a right to an attorney and does not have to give the police consent to search areas in which police would not have authority to conduct, otherwise.
Violations of a Publics Constitutional Rights
At each level of police-public contact, the police engage in the routine practice of violating people’s constitutional rights that often leads to unnecessarily conflict between the police and members of the public.
For example, the police often unconstitutionally treats a consensual encounter with the public, as an investigative detention. They purposely create an environment in which a reasonable person would conclude that they are not free to leave, are required to answer any questions, and most consent to a request to search the person’s body or property.
In an investigative detention encounter, the police routinely treat as an arrest, performing invasive searches when in fact the search should be limited to a pat-down of the body and search of any area within the reach of the detainee, nothing more. Often, the person being detained does not know the police can hold them only for a reasonable amount of time to ascertain whether they have been involved in crime.
They can not be held indefinitely.
Lack of Transparency
When stopped by the police, people are constitutionally protected from unreasonable or unjustified searches and have the right to deny requests to be searched if officers lack legal cause. In reality, many people who are stopped by officers are never asked for consent and are unaware that they have the right to refuse a search. Additionally, people often do not know why they are being stopped, and because of an inherent power imbalance between officers and civilians, they are too afraid to ask and risk retaliation.
One effort that would go a long way in de-escalating the tension in police-public encounters and therefore reduce the incidents of excessive force, is for the United States Congress to pass legislation requiring the police to be transparent when engaging the public. Police-transparency legislation, sometimes referred to as “right to know” legislation, can mitigate the potential for abuse by ensuring that civilians provide voluntary consent to searches and decline consent when there is no legal justification.
Police-transparency legislation should require:
That officers identify themselves to the public by providing information such as the officer’s name, rank, and command during all interactions and stops.
That officer states whether the encounter is consensual, investigative, or an arrest.
That if the encounter is counsesual, the civilian must be informed that they do not have to give their name, answer any questions, and are free to live at any time.
That if the encounter is investigative, the civilian must be provided a specific legal justification for a stop, informed that they are not required to answer any questions, and do not have to consent to a broad search of their person or property.
That in all encounters including arrest the officers must explain to civilians that they have the right to refuse to answer any question, to refuse a search where there is no legal justification, and obtain proof that informed and voluntary consent was provided.
Change is needed now
The power of the government to deprive an individual of their liberty should be exercised in the most limited way. The abuse of this power often leads to psychological trauma, negative consequences with one’s family and place of employment, this is to say nothing of the public embarrassment. When excessive force is part of the police-public encounter, it too often results in serious bodily injury and/or death. State and local governments have failed to adequately deal with this malignant problem. And courts have not provided a workable remedy.
Against a national backdrop in which the general public is paying increased attention to issues of police brutality, it is imperative to pass congressional legislation that protects members of the public. Transparency legislation is a major step toward de-escalation in police-public encounters. Thus, should decrease the use of excessive force by police departments across the country.