It’s a sad fact, but a true one nonetheless, that it’s actually quite rare for police officers to face criminal legal consequences for using excessive force — or even fatal violence — against civilians.
Admittedly, data to support this claim is far from perfect. There is no national system for reporting police misconduct, and state agencies are often reluctant to release any details about investigations into police wrongdoing. This means some of the most reliable data sets on police misconduct — usually focusing on shootings — come from journalists, researchers or political activists who study it, not the federal government.
What’s more, there’s no evidence that substantially more police officers are facing charges, despite an uptick in protests against the use of excessive force by police. Many major US cities continue to pay out millions of dollars each year to settle lawsuits against police officers, often without firing officers who have been repeatedly sued. So even though police misconduct has drawn greater national attention, it’s still really difficult to hold police officers legally accountable for any kind of misconduct — including fatal violence.
Over the past few years, there have been a number of high-profile trials of police officers, but it’s often hard to know whether more police are being prosecuted, or if the issue is just receiving more attention. According to the best sources available on prosecutions of police – 10,287 criminal arrest cases between 2005 and 2014 involving 8,495 non-federal sworn law enforcement officers have been logged.
Those figures don’t include police killings that aren’t shootings. In fact, researchers have found that only 110 law enforcement officers nationwide have been charged with murder or manslaughter in an on-duty shooting — despite the fact that around around 1,000 people are fatally shot by police annually, according to a database maintained by The Washington Post. Furthermore, only 42 officers were convicted. Fifty were not and 18 cases are still pending. Many of these convictions ended up being for a lesser offense — only five of these officers were convicted of murder (and did not have that conviction overturned).
Most years, the number of officers charged with murder or manslaughter in connection with an on-duty shooting is in the single digits. And despite the increased scrutiny on police violence since 2014 (when the shooting of Michael Brown in Ferguson, Missouri, and the Black Lives Matter movement raised public awareness of the issue), neither the number of officers charged nor the number of convictions has meaningfully increased. The number of officers charged has edged into the double digits in four of the last six years (topping out at 18 in 2015). What’s more, officers are still being convicted about as often as they are not — about the same rate as before 2014 — although many of the cases since 2016 are still pending.
Why are police prosecutions still so rare? In the last few years, many cities have pledged to reform their police departments, and progressive prosecutors have even won on promises to hold police accountable for misconduct. But not all misconduct — including use of excessive or even fatal force — is illegal. For example, if a civilian is displaying a weapon, it’s very hard to charge the police officer with murder for taking action against that civilian. And even if a civilian doesn’t have a weapon, it’s hard to charge a police officer if he or she can credibly say they feared for their life.
There are other barriers to charging and convicting police, too. Prosecutors work closely with police departments, which means they may be reluctant to jeopardize that relationship by pursuing cases against officers. Police officers’ contracts also often protect them from interrogation techniques that are often used on civilians. And in the cases that make it to trial, judges and juries may be more inclined to believe law enforcement officers when they say their lives were threatened. All of these challenges are so baked into the system that it’s very difficult to make meaningful changes. Altering prosecutors’ relationship with police isn’t a simple or easy reform, for instance — it would be a fundamental shift in the way the criminal justice system works.
Of course, prosecution isn’t the only legal route for holding police officers accountable for misconduct. People can also sue if their constitutional rights are violated by police, which includes offenses like use of excessive force. There’s no national data source for this either, but looking at data on police misconduct settlements in New York, Los Angeles, Chicago and Philadelphia paints an ugly picture. New York has paid more than $100 million on police misconduct settlements each fiscal year between 2015 and 2018, per data from the New York City Comptroller’s Office. In total, New York Police Department misconduct settlements cost the city $630 million between the fiscal years of 2011 and 2017. In Los Angeles, they totalled more than $139 million in that same time period, according to data compiled by the Los Angeles Times. And in Chicago, police misconduct settlements between the calendar years of 2011 to 2018 totalled $398 million, according to data compiled by The Chicago Reporter. In Philadelphia, that number is nearly $90 million, per data from the city’s Law Department.
This might seem like a lot of money, but experts say it’s not an especially effective way of promoting police accountability. For one thing, police almost never pay the settlements out of pocket — instead, the money comes from cities or police departments, and often in ways that don’t put financial strain on police departments. That may help explain why some of the nation’s largest cities have a history of keeping officers on the force even when their conduct has resulted in many lawsuits — the legal actions may not actually prompt police departments to internally discipline or fire officers who are sued over and over again.
Part of the problem is that it’s also very difficult to successfully sue a police officer for misconduct because the courts have granted them broad protections from legal liability for actions they take on the job. This doctrine, called “qualified immunity,” protects government officials from being sued if there isn’t a violation of clearly established law — which means, in practical terms, that a case against a police officer will often be dismissed if the alleged behaviour hasn’t previously been found unconstitutional.
This has resulted in a bizarre and circular trap for people trying to sue police for misconduct: To succeed, they need to find previous cases where similar misconduct occurred, but there are very few other precedents because other plaintiffs hit the same stumbling block.
What do you think should be done to hold police officers more accountable for their actions? Is such a thing even possible? Share your views in the comments below.