IN PUBLIC SERVICE: To End Police Brutality, We Need to Define It

June 8, 2021 By State Senator Kevin Parker

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We have now reached the anniversary of George Floyd’s death. My hope is that this tragic event is not another chapter in the long story of police brutality, but the beginning of the end. Yet every time it seems our collective conscience is bending toward justice, the next day law enforcement kills another unarmed black man. Nonetheless, an end to police brutality is very much within reach. And to put an end to it, there is a fundamental first step: defining excessive use of force.

As of now, New York State law only prescribes when an officer can use force, but not when they cannot. Even then, the law is quite fuzzy. It says force is justified if the officer “reasonably believes such to be necessary.”

You might think that, to paraphrase Justice Potter Stewart, we know excessive force when we see it. However, law enforcement and the general public often have very different interpretations of “reasonable” force. And not only does New York have no legal definition of excessive force by police, there is not even a law making it a crime. As of now, prosecutors have to indict an officer under general assault and homicide laws.

To rectify these issues, I introduced S6615, which would create a standard definition of excessive force. That way, we are all on the same page about what officers can and cannot do. And it makes excessive force by a law enforcement officer its own crime.

Under my bill, the legal definition of “reasonable” use of force would be not only force the officer deems reasonable, but also force someone else would consider reasonable.

For example, in April 2019, NYPD officer Brendan Thompson killed Kawaski Trawick, a black man with mental health issues “armed” with a stick and bread knife. Police were responding to calls that Trawick was erratic in his supportive housing facility. Thompson, who is white, quickly escalated the situation by tasing and then shooting Trawick in under two minutes, despite Thompson’s partner Herbert Davis, who is black, imploring Thompson to de-escalate. Under my bill, Thompson’s use of lethal force would be unambiguously excessive, because his partner deemed it unreasonable.

My bill also notes scenarios that do not justify use of force. It establishes a presumption that force is not reasonable against anyone incapable of resisting arrest, prohibiting a Rodney King-style scenario where officers pummel someone already detained. Nor is force necessarily justified if it stems from the officer’s own escalation. Because a common abuse of force is when an officer, instead of de-escalating the situation, tases someone for a “non-compliant gesture,” and if the person responds by doing something “threatening,” then the officer uses lethal force.

Another first for my bill is that it actually lists alternatives to force. The law says force is only reasonable when “there are no reasonable alternative means…such as distance, cover, containment, tactical repositioning, requesting additional officers, and surveillance, verbal communication or de-escalation and the deployment of specialized equipment or resources, such as officers trained in crisis intervention, or mental health professionals.”

My bill would also establish that excessive force by a police officer is its own crime. If the civilian is not seriously hurt, the crime would be excessive use of force in the third degree, a misdemeanor. If they are seriously hurt or killed, it would be excessive force in the second or first degree, respectively, which would both be felonies.

Some popular excuses for police brutality do not make it into the bill. For one, a person’s criminal history is not a post hoc justification for excessive force – at least not until the day that police can scan faces and run instant background checks like RoboCop. Nor is someone’s drug use an excuse for an officer to use lethal force.

As with other police reforms, this bill alone will not result in the NYPD and BLM walking off together into the sunset. Having responsible and trustworthy law enforcement will take many reforms, including the package of bills I passed last year, and others I introduced, along with the comprehensive NYPD audit I will conduct as Comptroller. Admittedly, the bill will also not entirely resolve the debate over what is “reasonable,” as outside of the Trawick case there is rarely someone on the scene acting as a control group.

Nonetheless, a definition of excessive force is a key tool to holding law enforcement officers accountable for abusing their right to use force. If they know there are consequences to excessive force, they might err on the side of caution, instead of assuming any movement by a black person is a reach for a gun. Because with great power comes great responsibility, and the power to use lethal force carries the ultimate responsibility.