implies a judgment, people may disagree profoundly about whether a particular incident, even though it involves the obvious use of force, is a case of brutality.
Any discussion of police brutality is therefore encumbered by confusion about whether it applies to more than physical assaults and also by disagreement over what circumstances absolve the police from blame.42
In short, the technical distinctions between, say, excessive force and illegal force, while bringing some measure of precision to the discussion, lead us no nearer to a resolution of these disputes. That’s because, at root, the disagreement is not about whether a rule was broken, or a law violated. The question—the real question—is one of legitimacy. The larger conflict is a conflict of values.
Let’s consider this problem anew: the trouble, or part of it, comes in discerning the legitimate and illegitimate uses of violence. Abuses of authority may look very much like their less corrupt counterparts. Or, stated from a different perspective, the application of legal force often feels quite a lot like abuse. But there is no paradox here, not really. The state, claiming a monopoly on the legitimate use of force, needs to distinguish its own violence from other, allegedly less legitimate, uses of force.43 In non-totalitarian societies, authority exists within carefully prescribed, if vague (one might suggest, intentionally vague), boundaries. Action within these limits is “legitimate,” similar action outside of such limits is “abuse.” But in the case of police violence, legitimate and excessive force exist as part of the same continuum, rather than as distinct species of action. (Even the term “excessive force” implies this.) Hence, where you or I see brutality, the cop sees only a day’s work. The authorities—the other authorities—more often than not side with the policeman, even where he has violated some law or policy. That is, in a sense, only fair, since the police officer—unless he engages in mutiny—nearly always sides with them. The main difference, then, between policing and police abuse is a rule or law that usually goes unenforced. The difference is the words.
Why We Know So Little about Police Brutality
The preceding observations provide a framework for understanding police brutality, but tell us almost nothing about its prevalence, its forms, its perpetrators, or its victims. Solid facts and hard numbers are very difficult to come by.
This dearth of information may say something about how seriously the authorities take the problem. Until very recently, nobody even bothered to keep track of how often the police use force—at least not as part of any systematic, national effort. In 1994, Congress decided to require the Justice Department to collect and publish annual statistics on the police use of force. But this effort has been fraught with difficulty. Unlike the Justice Department’s other major data-collection projects—the Uniform Crime Reports provide a useful contrast—the examination of police violence has never received adequate funding, and the reports appear at irregular intervals. Furthermore, the data on which the studies are based are surely incomplete. Many of the reports rely on local police agencies to supply their numbers, and reporting is voluntary.44 Worse, the information, once collected and analyzed, is often put to propagandistic uses; its presentation is sometimes heavily skewed to support a law enforcement perspective. But despite their many flaws, the Justice Department reports remain one of the most comprehensive sources of information about the police use of force.
These reports represent various approaches to the issue. They measure the use of force as it occurs in different circumstances, such as arrests and traffic stops. They examine both the level of force used and the frequency with which it is employed. And some studies collect data from victims as well as police.
Unfortunately, under-reporting handicaps every means of compiling the data. One report states frankly: “The incidence of wrongful use of force by police is unknown.… Current indicators of excessive force are all critically flawed.”45 The most commonly cited indicators are civilian complaints and lawsuits. But few victims of police abuse feel comfortable complaining to the same department under which they suffered the abuse, and lawyers usually only want cases that will win—in other words, cases where the evidence is clear and the harm substantial.46 Many people fail to make a complaint of any kind, either because they would like to put the unpleasant experience behind them, because they fear retaliation, because they suspect that nothing can be done, or because they feel they will not be believed.47 One survey from the Bureau of Justice Statistics found that “less than 5% of persons who believed the police had not behaved properly filed a complaint.”48 Hence, measures that depend on victim reporting are likely to represent only a small fraction of the overall incidence of brutality.
Naturally, the victim is not always the best judge as to whether force was excessive, but in some cases, he or she may be the only source willing to admit that force was used at all. This fact provides another reason to separate questions concerning the legitimacy of violence from those concerning its prevalence. One report notes:
The difficulties in measuring excessive and illegal force with complaint and lawsuit records have led academics and practitioners to redirect their attention to all use-of-force incidents. The focus then becomes one of minimizing all instances of police use of force, without undue concern as to whether force was excessive. From this perspective, other records, such as use-of-force reports, arrest records, injury reports, and medical records, become relevant to measuring the incidence of the problem.49
Of course, these indicators also have their shortcomings. Arrest records, medical records, and the like will surely reveal uses of violence that have not resulted in lawsuits or formal complaints. But they will still underestimate the overall incidence of force, since not every case will be accurately recorded. For example, attempts to assess the prevalence of force based on arrest reports leave out those cases where force was used but no arrest was made.50 Like the victims (though for very different reasons), the perpetrators of police violence are also likely to under-report its occurrence. And they are likely to understate the level of force used and the seriousness of resultant injuries when they do report it.51 Individual medical records, meanwhile, are not generally available for examination, except when presented as evidence in a complaint hearing or civil trial. And even if emergency rooms were to maintain statistics on police-related injuries, many victims of violence, especially the uninsured, do not seek treatment except for the most serious of injuries.
Other indicators, such as media reports and direct observation, are similarly flawed. The media, of course, can only report on events if they know about them. Furthermore, they are unlikely to report on routine uses of force because it is routine.52 Direct observation is limited by the obvious fact that no one can observe everything, everywhere, all the time. And observation can lead a subject (either the officer or the suspect) to change his behavior while he is being observed. In humanitarian terms, such deterrence is all for the good, but it doesn’t do much for the systematic study of police activity or the measurement of police violence.
The sad fact is that nobody knows very much about the police use of force, much less about the use of excessive force. Its prevalence, frequency, and distribution remain, for the most part, unmeasured; and there is only limited information available concerning its perpetrators, victims, forms, and causes. Nevertheless, some information is available through the sources mentioned above. And, imperfect though they are, the statistics they produce may point to a reliable baseline, an estimated minimum to which we can refer with a fair amount of certainty. With that aim in mind, and with more than a little trepidation, we should turn our attention to the data that is available, and consider what it indicates.53
A Look at the Numbers
According to a Justice Department survey, 19 percent of American adults (43.5 million people) had direct face-to-face contact with the police in 2005. Of those surveyed, 1.6 percent reported the use of force or its threat. In other words, out of every hundred people the police come into contact with, they will threaten or hurt one or two of them. The rate is much higher for Blacks (4.4 percent) and Hispanics (2.3 percent) than for Whites (1.2 percent). The vast majority of the
