The Invisible Rules That Govern Use of Force
2021 Wisconsin Law Review 593 (2021)
65 Pages Posted: 6 Apr 2021 Last revised: 28 Apr 2021
Date Written: April 1, 2021
Police departments reject the idea that use of force can be governed by hard and fast rules. Under this rule-resistant view, using rules to regulate use of force would be dangerous and in practice impossible, as officers must retain broad discretion to respond to ever-changing conditions in the field. Despite the prevalence of this view, the Article finds that, behind closed doors, departments are constructing hard and fast rules that limit officer discretion.
This disconnect between the rule-resistant narrative and the rule-bound reality has important implications for use-of-force reform. Acceptance of the rule-resistant narrative tends to deflect public attempts to exert influence over use-of-force practices, limiting community input to the proposal of aspirational standards. At the same time, departments are internally adopting hard and fast rules, some of which require officers to engage in violence. If communities had access to these rules, they could closely interrogate, disagree with, and amend them. Ultimately, departmental efforts to convince the public that it is impossible to do what the department actually does are at the center of a struggle over who wields control over use-of-force reform—the police or the communities they serve.
This Article’s findings are based on extensive interviews of command-level officers across the country, in addition to the transcription and examination of a comprehensive set of training videos. These sources provide rich insights that reveal the strong departmental belief in the rule-resistant narrative that departments, however unknowingly, undermine behind closed doors.
Keywords: Police Departments, Criminal Procedure, Legal History, Police Training, Violence, Problem-Oriented Policing, Community Policing, Officer Discretion, Rule-Resistance, Rule-Based Narrative, Law Enforcement, Police Policy, Graham v. Connor, Criminal Justice, Justice System, Use of Force, Reform
Suggested Citation: Suggested Citation