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Excessive Use of Force by the Police Against Black Americans in the United States

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Excessive Use of Force by the Police Against Black Americans in the United States Inter-American Commission on Human Rights Written Submission in Support of the Thematic Hearing on Excessive Use of Force by the Police against Black Americans in the United States Original Submission: October 23, 2015 Updated: February 12, 2016 156th Ordinary Period of Sessions Written Submission Prepared by Robert F. Kennedy Human Rights Global Justice Clinic, New York University School of Law International Human Rights Law Clinic, University of Virginia School of Law Justin Hansford, St. Louis University School of Law Page 1 of 112 TABLE OF CONTENTS Executive Summary & Recommendations ................................................................................................................................... 4 I. Pervasive and Disproportionate Police Violence against Black Americans ..................................................................... 21 A. Growing statistical evidence reveals the disproportionate impact of police violence on Black Americans ................. 22 B. Police violence against Black Americans compounds multiple forms of discrimination ............................................ 23 C. The treatment of Black Americans has been repeatedly condemned by international bodies ...................................... 25 D. Police killings are a uniquely urgent problem ............................................................................................................. 25 II. Legal Framework Regulating the Use of Force by Police ................................................................................................. 28 A. International human rights law defines parameters for the use of force by police ....................................................... 31 B. The U.S. legal standard for the use of force lacks the clarity, specificity, and predictability required under international human rights law .................................................................................................................................................. 33 C. U.S. law does not require exhaustion of non-violent and less-than-lethal means before using lethal force only as last resort ..................................................................................................................................................................................... 37 D. U.S. law authorizes the use of force for objectives that would not be considered legitimate under international human rights law ................................................................................................................................................................................... 40 E. The consequence of inadequate regulation of the use of force in the United States and the lack of clear standards regarding lethal force is undue deference to the subjective view of officers, despite a nominally objective “reasonableness” test ..................................................................................................................................................................................... 42 III. Police Training...................................................................................................................................................................... 43 A. Proper training of police officers is an obligation under international human rights law ............................................ 45 B. Police officers have a right to proper training ............................................................................................................. 49 C. To comply with international human rights law, police training must clearly define what constitutes force and the parameters of its use .................................................................................................................................................................. 50 D. To comply with international human rights law, police training must address de-escalation. ..................................... 52 E. To comply with international human rights law, police training must instruct officers to exhaust alternatives to force and cultivate the appropriate psychological aptitude to meet the principle of proportionality................................................... 54 F. To comply with the requirements of equal treatment under international human rights law, police training must comprehensively address non-discrimination, including implicit bias ...................................................................................... 57 IV. Aggressive and Discriminatory Police Practices ................................................................................................................ 59 A. Aggressive police practices result in the disproportionate targeting of and excessive use of force against Black Americans .................................................................................................................................................................................. 59 B. The use of aggressive police practices that have a disproportionate impact on Black Americans violates international law ..................................................................................................................................................................................... 70 C. Racial profiling violates international law prohibiting discrimination and infringes on multiple other human rights ..... ..................................................................................................................................................................................... 71 D. Militarized police tactics may violate international legal principles of necessity and proportionality in the use of force ..................................................................................................................................................................................... 73 V. Investigations and Accountability for Excessive Use of Force by Police .......................................................................... 76 A. Importance of accountability for the excessive use of force by police ........................................................................ 76 B. Deficiencies in police accountability and access to justice in the United States .......................................................... 76 C. Deficienct investigation and the lack of police accountabability for excessive use of force and unlawful killings violate international law ............................................................................................................................................................ 86 VI. The Road Ahead: Positive Steps and Outstanding Issues ................................................................................................. 96 A. Consent decrees demonstrate both the prospects and the limitations of federal intervention into policing ................. 96 B. The Final Report of the President’s Task Force on 21st Century Policing recommends important improvements but falls short of international standards in several areas ............................................................................................................... 101 Page 2 of 112 Page 3 of 112 Executive Summary & Recommendations A. Executive Summary In 2015, police officers killed at least 1139 people in the United States.1 Over 25 percent of these victims of police violence were Black Americans2—a number grossly disproportionate to the share of the national population that is Black.3 Statistically, Black Americans are significantly more likely to die at the hands of police than white, Latino, and Asian Americans.4 And among those people killed by the police, Black victims are more than twice as likely as white victims to have been unarmed at the time of their death.5 Discriminatory police violence is by no means a new phenomenon in the United States. In recent years, however, reinvigorated protests and the organizing efforts of human rights defenders in the movement for Black lives and other community groups have thrust these injustices into the public eye.6 Despite widespread and growing recognition of the gravity of the problem and the need for radical changes in law enforcement practices, police officers are still rarely held accountable for their actions. Investigations and prosecutions of killings and excessive use of force by the police are the exception rather than the norm.7 When officers do face criminal charges, they are often acquitted or, if convicted, receive much lighter 1 The Counted: People Killed by Police in the US, The Guardian, http://www.theguardian.com/us-news/ng- interactive/2015/jun/01/the-counted-police-killings-us-database (last visited Jan. 22, 2016) [hereinafter Guardian Database] (reporting 1139 people killed by police in 2015); see also Investigation: Police Shootings, Wash. Post, http://www.washingtonpost.com/graphics/national/police-shootings/ (last visited Jan. 25, 2016) [hereinafter Washington Post Database] (reporting 987 people fatally shot by police in 2015). 2 This submission uses the term “Black” in order to be as inclusive as possible of all individuals of African descent in the United States, some of whom may not identify as “African-American.” 3 The U.S. Census Bureau estimated that Black Americans constituted 13.2% of the country’s population in 2014. State and County QuickFacts, United States Census Bureau (Sept. 30, 2015), http://quickfacts.census.gov/qfd/states/00000.html. In 2015, however,
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