Tiffany Morey and Kate McLean

One of the most contentious issues in contemporary policing is the apparent immunity of accused officers in criminal prosecution. While federal data on the outcomes of police-involved shootings is not available, some independent researchers have created their own databases, showing how rare criminal indictments and convictions of individual officers (accused of illegal use of deadly force) are. For example, while an estimated 16,000 individuals were killed by police between 2005 and 2020, only 121 officers have been arrested for murder or manslaughter in an on-the-job incident; of those individuals, only 44 have been convicted, sometimes on a lesser charge <footnote>Dewan, S. (2020). Few Police Officers Who Cause Deaths Are Charged or Convicted. New York Times.</footnote>

There are many factors that contribute to the outcomes detailed above. First, prosecutors may be reluctant to bring charges against a fellow law enforcement actor, with whom they may collaborate closely. Evidence of misconduct – or the use-of-force in ways that violates departmental policies, may be scant or unavailable, while the “Blue Curtain of Silence” may prevent colleagues for testifying against the accused. And while grand juries (discussed further in the coming chapters) are notorious for handing over indictments (a green flag to proceed with a criminal prosecution), grand jurors may be sympathetic to the plight of police, who are commonly revered as everyday heroes. Finally, the legal standard of “objective reasonableness” favors the officer perspective, representing a stark evidentiary hurdle for those trying to prove an unjustified use-of-force.

Police use-of-force may also result in civil prosecutions seeking individual damages for victims (or victim families) alleging excessive force. In such cases, police officers are often protected by doctrine of “qualified immunity” – another flashpoint in the contemporary debate around policing. According to the doctrine of qualified immunity, plaintiffs must not only prove that an officer violated their constitutional rights, but that such rights were clearly established in prior court rulings. In other words, the relevant laws must be so clear that any “reasonable officer [would know] that his conduct was unlawful in the situation he confronted.”