UNEQUAL TREATMENT? THE CIVILIAN AND LAW ENFORCEMENT USE OF FORCE
During a law enforcement use of force investigation, or following a jury’s decision, one may hear a criticism to the effect of, “If a civilian did that, they would be
arrested and going to prison.” Some obvious questions then become, “Is a civilian use of force treated differently from a law enforcement use of force by the judicial system, and should it be?”
In comparison, there are approximately 1,000 police shootings each year in the U.S. since 2005. Of those, 8% of the involved officers were arrested for fatal on-duty shootings, resulting in a 35% conviction rate (Stinson, 2017). There was a total of 379 civilian defensive gun uses in 2014, with a final disposition available in 146 of those cases. Of those civilian cases, approximately 10% resulted in legal consequences (Defensive Gun Uses, 2014).
Behavioral scientist, Dr. Alexis Artwohl, has opined, “Officers (following a use of force) should not be treated like criminal suspects,” and observed some of the differences between law enforcement officers involved in shootings and citizen criminal suspects as:
1. Law enforcement officers have not been arrested on any “probable cause” suspicion of having committed a crime. 2. The vast majority of officer involved shootings are legally justified. 3. Law enforcement officers are performing duties outlined in their job descriptions. 4. Law enforcement officers had no intent or plan to commit
an assault. 5. Law enforcement officers and agencies have a higher probability of becoming political targets.
What are some of the perceived differences between civilian and law enforcement uses of force? Some criticisms include the fact that law enforcement officers were not required to provide a formal statement immediately following the event, should have been physically arrested, and/or should be held to a "higher standard."
Though law enforcement officers may be compelled by their agency to provide preliminary information, in the interest of public safety, following a significant use of force, a law enforcement officer is not required to waive their constitutional rights at any time. Law enforcement officers may also be represented by attorneys with an advanced understanding of human performance under stress, perception, and memory, and know that the most accurate account of a critical incident may not be available immediately following the event. It is unknown how many civilian self-defense attorneys have a similar understanding and how that may influence the prosecution of a civilian use of force.
The “higher standard” for law enforcement criticism frequently, and appropriately, is associated with ethics and professional behavior. However, it is rarely explained how the “higher standard,” when applied to physical actions, could exceed human performance capabilities or limitations, and why the standard should suspend a law enforcement officer’s constitutional protections.
Does available data support a statistically relevant position of disparity of criminal prosecution between civilian and law enforcement uses of force? Why, or why not?
Should a default position of “presumed innocence” consistently apply to both civilian and law enforcement uses of force? Why, or why not? Is this position intellectually consistent?
Is there peer-reviewed research and testable data that provides contrary evidence or conclusions? Why, or why not? If so, where can it be located and tested?
Should peer-reviewed, testable scientific data be a component of any conversation examining reasonableness, and potential criminal charging, of any law enforcement use of force? Why, or why not?
Does this research have any application towards a civilian's use of force?
Do you think the general public (tax payer) understands the training requirements for better law enforcement use of force outcomes and is willing to finance that training? Why, or why not? What should be done then?
Does the background of a defense attorney have any relevance to charging and/or conviction rates for law enforcement officers? Civilians?
Defensive Gun Uses. (2014): http://14544-presscdn-0-64.pagely.netdna-cdn.com/…/2014-Def…
Stinson, P. (2017). “Police Shootings Data: What We Know and What We Don't Know.” Criminal Justice Faculty Publications. 78.