Carl Murray/"UW Law"
How can a city negotiate with opponents whose modus operandi consists of making dramatic allegations in the public arena, refusing to explain how they arrived at their conclusions, and then threatening to sue if the city fails to immediately roll over on its back and accept a consent decree and court-appointed monitor? I asked myself this question as I began to plow through the 1,200-plus use of force cases from which the Department of Justice (DOJ) sampled in order to arrive at their now infamous "20 percent" excessive force figure — their claim that police acted with excessive force nearly 20 percent of the time.
I requested a research agreement with the Seattle Police Department (SPD) in order to attempt to replicate DOJ's empirical findings. I haven't finished my work and it will take time to do it properly, but I can report that based on what I have reviewed thus far, there is no sign that DOJ is negotiating with the City in good faith. I say this because DOJ is negotiating from a position based on factual errors as well as errors of omission, gross misrepresentations, apparent statistical errors, and other substantive flaws, all under the signatures of the U.S. Attorney for the Western District, Jenny Durkan, and the Assistant Attorney General for the Civil Rights Division, Thomas Perez.
I want to be clear that I am not an apologist for the SPD. Whether the SPD is shown to be a bunch of jack-booted thugs or a bunch of boy scouts is far less important to me than the basis for drawing such conclusions in the first place. This is an admittedly awkward position for a professor at Seattle University, an institution that takes social justice as its core concern. I wouldn't be working at SU if I wasn't committed to social justice and somewhat reform minded. But I am quite confident in the fact that I am surrounded by fellow truth-seekers who do not sacrifice their scientific integrity in the name of social justice advocacy. There are far better ways to achieve those goals than just making stuff up.
Among the many traits that we try to develop in our students is a disposition toward critical thinking. For my part, I encourage students to be "good consumers" of quantitative information and I try to help them acquire the tools necessary to make informed decisions about the premise, methods, and conclusions of research articles and reports. The goal is to produce future leaders in criminal justice who value research products but approach them critically. It is in this spirit that I am now writing to a broader audience.
The vast majority of force incidents in the Seattle data are low-level uses of force involving hands, feet, knees, and elbows. The suspects generally fall into one or more of the following categories: drunk, high, outstanding warrants, mental health issues, homeless. And the police do not come to be involved with these individuals due to their good behavior; they have generally done something bad to come to the attention of the police. When confronted about this behavior, the suspects physically resist.
In the vast majority of cases, police use the minimal amount of force necessary to control the suspect while preserving their own safety and that of the public. Yet, the DOJ report reflects some alternate reality.
For example, the DOJ report presents a number of incidents that certainly have some shock appeal. In one such incident (pg. 12 of the report), DOJ is critical of multiple officers involved in using force to determine whether the suspect was armed, while not adequately assessing the level of risk posed by the suspect. This incident involved a large house party at which a stabbing reportedly had occurred.
DOJ omitted the fact that a bleeding victim was present at the scene who stated that he had been cut. The victim also gave a description of the suspect. DOJ also omitted that additional witnesses described the suspect, indicated that he was violent, and stated that he was in the house. DOJ instead focused on the fact that the subject contacted in the house was inebriated, possibly passed-out, of slight build, and did not speak English as a first language. He was lying on his chest with hands concealed and would not respond to commands to show his hands to officers. DOJ contends that the suspect did not pose sufficient risk to officers to merit the force they used in order to establish that the subject was not secreting the knife.
DOJ summarizes another incident (pg. 13 of the report) in which “… an officer used his baton to pry the man’s mouth open …” so that another officer could remove drugs from the suspect’s mouth. The idea of someone prying open a person’s mouth with a baton is surely a shocking scenario that conjures images of broken teeth and lots of blood. However, if one reads the actual use of force report, one will find that the officer very carefully and deliberately used the padded end of his baton as a bite-block so that his partner could avoid being bitten as he fished out several rocks of cocaine, evidence that the subject was trying to hide and possibly swallow. The subject was not injured and stated this fact to supervisors.
To be clear, this is not an appropriate use of a baton and the officer was counseled about this. DOJ strangely offers this case as an example where “SPD officers too quickly and unreasonably resort to the use of impact weapons,” although the baton was not actually used in the manner of an impact weapon.
In another incident (pg. 11 of the report), DOJ is critical of the officers involved for not making use of Crisis Intervention Team (CIT) officers in handling a suspect with mental health issues. If one reads the actual use of force report, one will find that in this very unfortunate incident, a CIT officer actually was on scene, a clear factual error on DOJ's part.
None of the cases summarized by DOJ are “typical" cases, although the report presents them as such. DOJ has deliberately chosen extreme cases and selectively summarized these cases in the least favorable light possible, omitting many details that may lead a reasonable person to a different conclusion. I strongly encourage concerned citizens to request the actual use of force reports through the City's Public Disclosure Request process and make up your minds for yourself. The relevant GO (General Offense) numbers for the particular cases I referenced above are 10-217621, 11-28633, and 10-178971.
In a Seattle Times op-ed, I commented on the expected distribution of force incidents in any police department: a small number of officers will be responsible for a large number of uses of force. But this does not define a “pattern or practice” nor does it describe a small number of “bad” officers as DOJ apparently contends; rather, it reflects the total absence of any consideration by DOJ of the underlying events or their micro-contexts. For example, some officers work in parts of a city or on shifts or assignments where they are simply more likely than other officers to have to use force. And a closer inspection of those officers and incidents will reveal that most if not all are described by their supervisors, peers, and the public as “good cops” who are out there working hard and using force appropriately.
Likewise, the notion that 20 percent of uses of force are excessive or unconstitutional reflects an ignorance of the scientific literature on police use of force. I am proceeding through the approximately 1,200 cases using the two dominant methodologies reported in the field of criminal justice for estimating use of excessive force, neither of which were used or even referenced by DOJ in their investigation. One is a static approach that compares, as a ratio, the highest level of force used by police in comparison to the highest level of suspect resistance. The other is a dynamic approach that considers the sequence of events in terms of actions of the suspect versus actions of the officer, allowing some consideration of escalation along the force continuum.
I don't know if DOJ was unaware or simply ignored the literature on use of force, but either case is simply inexcusable. Using these methodologies, it is highly unlikely that the distribution of force incidents would reflect a figure as high as 20 percent being labeled excessive. Based on published studies employing these methods to analyze police use of force in other cities, a more reasonable figure would be about 2 percent.
In addition to these concerns, if we assume that DOJ is using a somewhat liberal definition of excessive force, we begin with the notion that the 20 percent figure is somewhat high to begin with. We add to that a strong likelihood that DOJ failed to re-weight their much ballyhooed stratified random sample, thus giving additional weight to oversampled cases (such as baton cases) and leading to a biased estimate in the direction of excessive force. Finally, we add a margin of error to the estimate, which — based only on the content of the DOJ report — I estimate to be in the neighborhood of plus or minus 5 percent. All this is to say that the 20 percent figure is certainly inflated.
At this point, the City of Seattle should simply ignore DOJ and proceed with their 20/20 plan — 20 initiatives over 20 months to improve police practices. They might consider accelerating things to something more along the lines of 20/12 in order to show the public their commitment to reform within 12 months.
Meanwhile, let DOJ sue and make their case for a "pattern or practice" of excessive force. I doubt DOJ would actually go through with it, but if they did I would gladly volunteer to demonstrate to the Court the fundamental flaws underlying DOJ's investigation. A heavy-handed and over-reaching federal government is a far greater social justice concern.
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