The decision last week not to charge the Kenosha police officer who shot Jacob Blake seven times as he tried to get into a vehicle last August spurred criticism from many, including Gov. Tony Evers.
Kenosha County District Attorney Michael Graveley, along with former Madison Police Chief Noble Wray, laid out their rationale during a two-hour press conference last week, explaining how their investigation determined that the officer used reasonable force given the state’s parameters for doing so.
The framework used to determine what is reasonable and when is the topic of ongoing debate in Wisconsin and across the country. So what is the current legal framework that guided Graveley to his conclusions last week, and what’s on tap for possible changes? Here are some questions and answers.
What law governs how law enforcement is able to use force on the job?
The 1989 U.S. Supreme Court decision, Graham v. Connor, set a precedent that governs how law enforcement agencies nationwide understand the scope of their ability to use force in the course of their work.
That case centered around how a police officer treated a diabetic man (Graham) who hastily entered then left a convenience store, looking for orange juice to counteract the beginnings of an insulin reaction. The officer (Connor) pulled Graham over for an investigative stop, eventually handcuffing him, and ignored or rebuffed attempts to explain Graham’s diabetic condition as he tried to figure out what happened in the store. Graham sustained multiple injuries.
The Supreme Court ultimately held that the use of force, whether deadly or not, in the course of an arrest, investigatory stop or other “seizure” of a free citizen was subject to the Fourth Amendment’s “objective reasonableness” standard rather than a due process standard.
The Fourth Amendment’s “reasonableness” standard examines whether the police officers’ actions are “objectively” reasonable in light of the facts and circumstances confronting them at the time, without regard to an underlying intent or motivation.
According to the majority opinion, "The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.”
That conclusion is the basis for use of force policies in effect across the country today.
What do some say is the problem with this?
This provision ultimately supersedes whatever a state or local government would do to hold an officer liable for how they use force, and puts the ultimate, subjective authority of what’s reasonable with the officer.
The precedent has led to use of force standards being implemented rather than hard and fast rules, a dynamic that puts local police in control.
“People often wonder whether an officer's actions complied with local policy. But as to an officer's civil or criminal liability, this question does not matter. When a department asserts an officer acted reasonably, the department looks to constitutional law. And constitutional law is very forgiving of officer decision-making,” said Ion Meyn, a professor at the University of Wisconsin Law School, who has extensively studied the issue.
“There are jurisdictions that are changing the way we understand public safety and the purpose of policing. Places like Olympia, Denver, Eugene and Austin are sending social workers to mediate and solve problems reported to dispatch. These programs will not supplant the need for police, but will, I expect, profoundly change police training and culture over time.”
A standards-based approach to police training is troubling, Meyn writes in his law review article on use of force in the Wisconsin Law Review because it “permits a department to claim it is committed to using reasonable force without defining what that is.” That, Meyn writes, “furthers departmental insularity, reinforces departmental claims of expertise, helps shield departments from liability, and facilitates departmental control over the creation and enforcement of use-of-force practices. Facilitating these objectives is the constitutional standard articulated in Graham v. Connor.”
What do law enforcement leaders say?
Jim Palmer, executive director of the Wisconsin Professional Police Association union, which represents most officers in the state, says the precedent in Graham v. Connor is sufficient for guiding how training and use of force standards are created.
“Under that 'objective reasonableness' standard, I think it's important to note that in the standard, the court recognized that the officer has to make split-second life or death decisions,” Palmer said. “We don’t judge law enforcement by their actions alone and we don’t apply hindsight. The rule of law in this area is very well entrenched.
“We look at the facts available to the officer at the time that the use of force action was taken, and we determine whether or not that was objectively reasonable. Would a reasonable officer with the same information under the same circumstances have made the same decision?”
Those standards do evolve as more effective strategies are discovered, he said.
“As law enforcement gains more tools and resources and non-lethal resources — for example, like a taser — as those things change over time, that is something that has a significant impact on that legal standard.”
A good example of that is chokeholds, Palmer said. In recent years, the question of how or whether to use them has come up. They have not been taught in the state for years, though in other states they remain a part of the curriculum.
There is nothing in Wisconsin law that specifically prohibits chokeholds in most cases, but one of the reforms that Palmer’s group supports is a legal ban on using them at all.
Are there standards governing “use of force” in Wisconsin and does someone at the state level oversee it?
The standards Wisconsin law enforcement agencies train on are administered and updated by the state Department of Justice’s training and standards bureau. This bureau works with local governments statewide to coordinate training and continuing education.
How those standards are applied and reflected in specific training can vary. The training materials vary from municipality to municipality and are not collected by the state. The specific standards are not readily available on the DOJ website.
What additions and changes to state law have been proposed and where do they stand?
The Wisconsin Professional Police Association has proposed a series of reforms, several of which have bipartisan support, but they have yet to be voted on in the Legislature. They include:
- codify and establish uniform statewide procedures for use of force
- establish statewide policies and requirements for de-escalation tactics
- require all use of force policies used by local law enforcement to be posted online
- establish a law protecting officers who blow the whistle on colleagues breaking the law
- require more data collection by DOJ, including the frequency of officer-involved shootings, no-knock warrants and disciplinary complaints and outcomes
- Expand authority of the state to enforce standards and training with local law enforcement agencies
So far, none of these proposals have been passed by the Legislature. Assembly Speaker Robin Vos created a task force on racial disparities, which is set to address policing reforms with possibly legislation this year. The task force has dozens of members, including community leaders and lawmakers.
Evers called a special session to address policing in September, but it was shut down by Republicans who instead pointed to the bipartisan task force as a better avenue for discussing and voting on reforms. The task force, led by Rep. Jim Steineke and Rep. Sheila Stubbs began meeting last fall and will continue to meet in 2021 to consider legislation. Task force members include:
- Rep. Kalan Haywood II, D-Milwaukee
- Rep. Robert Wittke, R-Racine
- Rev. Marcus Allen, Pastor, Mt. Zion Baptist Church, Madison, and U.S. Army Veteran
- Rev. Yao Yang, Pastor, The Cross Church, Wausau, Joseph Project Leader and Executive Director of The Gospel TLC
- Tehassi Hill, Chair, Oneida Nation
- Ricardo Diaz, retired former Executive Director, United Community Center, Milwaukee
- Rebecca Burrell, Activist, Entrepreneur, Singer/Songwriter
- Pastor Jerome Smith, Greater Praise Church of God In Christ, Milwaukee, Joseph Project Leader
- Marty Calderon, God Touch Ministry, Milwaukee
- Dr. Jeremiah Holiday, Chief Academic Officer, Milwaukee Public Schools
- Fred Royal, President, Milwaukee NAACP
- Keetra Burnette, Director, Stakeholder Engagement, United Way of Dane County and Urban League of Greater Madison
- Dr. Eve Hall, President and CEO, Milwaukee Urban League
- Ossie Kendrix, President and CEO, African-American Chamber of Commerce of Wisconsin
- Theresa Jones, VP for Diversity, Inclusion, and Equity, Children’s Wisconsin, Milwaukee
- Damond Boatwright, Regional President, SSM Health
- Linda Fair, Academic Advisor, Blackhawk Technical College
- Veronica King, Instructor, Gateway Technical College and former Department of Corrections Social Worker
- Ted Nietzke, CEO, CESA 6 and Former West Bend School District Superintendent
- Tory Lowe, Co-founder and CEO, Justice of Wisconsin
- Pam Holmes, Retired Milwaukee Police Officer, President of the National Black Police Association- Wisconsin Chapter
- Tony Gonzalez, Founder and Co-Chair, Toward One Wausau
- Patrick Mitchell, Chief of Police, West Allis Police Department
- Danilo Cardenas, Secretary/Treasurer, Milwaukee Police Association
- Jim Palmer, Executive Director, Wisconsin Professional Police Association
- Nate Dreckman – Grant County Sheriff
- Pastor Dannie Evans, House of God Church, Janesville, and Former Probation and Parole Agent
- Steven Roux, Rice Lake Police Chief
- Wayne Strong, Retired Lieutenant, Madison Police Department
- Kalvin Barrett, Law Enforcement Instructor, Madison College