Defining Brutality
The study of police brutality faces any number of methodological barriers, not the least of which is the problem of defining it. There is no standard definition, nor is there one way of measuring force and excessive force. As a consequence, different studies produce very different results, and these results are difficult to compare. Kenneth Adams, writing for the National Institute of Justice, notes:
Because there is no standard methodology for measuring use of force, estimates can vary considerably on strictly computational grounds. Different definitions of force and different definitions of police-public interactions will yield different rates.… In particular, broad definitions of use of force, such as those that include grabbing or handcuffing a suspect, will produce higher rates than more conservative definitions.… Broad definitions of police-public “interactions,” such as calls for assistance, which capture variegated requests for assistance, lead to low rates of use of force. Conversely, narrow definitions of police-public interactions, such as arrests, which concentrate squarely on suspects, lead to higher rates of use of force.37
Adams himself outlines multiple definitions for use-of-force violations, focusing on different aspects of the misconduct.
For example, “deadly force” refers to situations in which force is likely to have lethal consequences for the victim. [The victim need not necessarily die.] … [T]he term “excessive force” is used to describe situations in which more force is used than allowable when judged in terms of administrative or professional guidelines or legal standards.… “Illegal” use of force refers to situations in which use of force by police violated a law or statute.… “Improper,” “abusive,” “illegitimate,” and “unnecessary” use of force are terms that describe situations in which an officer’s authority to use force has been mishandled in some general way, the suggestion being that administrative procedure, societal expectations, ordinary concepts of lawfulness, and the principle of last resort have been violated, respectively.38
Adding to the difficulty of comparing one set of figures with another, each of these concepts refers to standards that vary according to the agency, jurisdiction, and community involved. Even within a single agency, agreement on the interpretation of the relevant standards may not be perfect. Bobby Lee Cheatham, a Black cop in Miami, noted the different standards among the police: “To [White officers], police brutality is going up and just hitting on someone with no reason.… To me, it’s when a policeman gets in a situation where he’s too aggressive or uses force when it isn’t needed. Most of the time the policeman creates the situation himself.”39
Even where the facts of a case are agreed upon (which is rare enough), there may yet be intense disagreement about the relevant standards of conduct and their application to the particular circumstances. For example, in October 1997, sheriff’s deputies in Humboldt County, California, swabbed pepper-spray fluid directly into the eyes of non-violent anti-logging demonstrators locked together in an act of civil disobedience. Amnesty International called the tactic “deliberately cruel and tantamount to torture.” A federal judge refused to issue an injunction against the practice, however, claiming that it only caused “transient pain.”40
This case highlights the disparate judgments possible, even given the same facts. A great many people feel about police brutality as Justice Potter Stewart felt about pornography: they can’t define it, but they know it when they see it. Unfortunately, they might not know it when they see it. Many police tactics—the use of pressure points, the fastening of handcuffs too tightly, and the direct application of pepper spray, for example—really don’t look anything like they feel. More to the point, in most cases, nobody sees the brutality at all, except for the cops and their victims. The rest of us have to rely on secondary information, usually taking one side or the other at their word.
Things get even stickier when general patterns of violence are scrutinized, even where no particular encounter rises to the level of official misconduct. As one Justice Department study explains: “Use of excessive force means that police applied too much force in a given incident, while excessive use of force means that police apply force legally in too many incidents.”41 While the former is more likely to grab headlines, it is the latter that makes the largest contribution to the community’s reservoir of grievances against the police. But, since the force in question is within the bounds of policy, the excessive use of force is more difficult to address from the perspective of discipline and administration.
All of this controversy and confusion points to a very simple fact: police brutality is a normative construction. It involves an evaluation, a judgment, and not simply a collection of facts. David Bayley and Harold Mendelsohn explain:
[P]olice brutality is not just a descriptive category. Rather it is a judgment made about the propriety of police behavior.… Since the use of the phrase 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.