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CQ

Researcher
Published by CQ Press, an Imprint of SAGE Publications, Inc.

www.cqresearcher.com

Police Misconduct
Will excessive force, racial profiling be curbed?

T

he U.S. Department of Justice is stepping up its
oversight of local police departments, pressuring them
to limit the use of force in civilian encounters and
eliminate racial profiling during traffic stops and other

enforcement. Over the past year, the Justice Department’s civil rights

division has criticized long-troubled police agencies in such places
as New Orleans, Seattle and Maricopa County, Ariz., which includes
Phoenix. The department’s power stems from a 1994 law allowing
the federal government to identify a “pattern or practice” of constitutional violations and threaten court action to force police agencies
to adopt changes. Seattle officials have proposed a detailed plan to

A protester holds up a photo of wood carver John T.
Williams, a hearing-impaired Native American killed
by Seattle Police Sgt. Ian Birk in 2010. A fixture at a
nearby social service center, Williams was shot after
failing to respond to Birk’s order to drop an open
carving knife. The Feb. 16, 2011, demonstration was
to protest the King County prosecutor’s decision
not to charge Birk, who later resigned.

answer the government’s criticisms, but negotiations are stalled in
New Orleans and Maricopa County, where Sheriff Joe Arpaio is
balking at the government’s demand for court supervision of policy
changes. Meanwhile, the racially charged shooting death of a

I
N
S
I

Florida teenager by a neighborhood watch volunteer has focused
attention on police handling of the case.

D
E

CQ Researcher • April 6, 2012 • www.cqresearcher.com
Volume 22, Number 13 • Pages 301-324

THIS REPORT
THE ISSUES ....................303
BACKGROUND ................310
CHRONOLOGY ................311
CURRENT SITUATION ........316
AT ISSUE........................317
OUTLOOK ......................319

RECIPIENT OF SOCIETY OF PROFESSIONAL JOURNALISTS AWARD FOR
EXCELLENCE ◆ AMERICAN BAR ASSOCIATION SILVER GAVEL AWARD

BIBLIOGRAPHY ................322
THE NEXT STEP ..............323

POLICE MISCONDUCT

CQ Researcher

THE ISSUES

303

• Should police do more
to control excessive force?
• Should police do more
to prevent racial and ethnic
profiling?
• Should police adopt
stronger disciplinary measures for misconduct?

SIDEBARS AND GRAPHICS

304

Justice Department Targets
Police Misconduct
The federal government has
found police misconduct in
such localities as New Orleans,
Seattle and East Haven, Conn.

April 6, 2012
Volume 22, Number 13

MANAGING EDITOR: Thomas J. Billitteri

tjb@cqpress.com

ASSISTANT MANAGING EDITOR: Kathy Koch

kkoch@cqpress.com

CONTRIBUTING EDITOR: Thomas J. Colin

310

Police Problems
Police misconduct has been
a problem since the 1800s.

307

313

Police Accountability
Major police departments
were beset by scandals
during the final decades
of the 20th century.

Police Handle Tense
Situations in Steps
Agencies employ a “use of
force continuum.”

tcolin@cqpress.com
ASSOCIATE EDITOR: Kenneth Jost
STAFF WRITER: Marcia Clemmitt
CONTRIBUTING WRITERS: Sarah Glazer,
Alan Greenblatt, Peter Katel,
Barbara Mantel, Jennifer Weeks
DESIGN/PRODUCTION EDITOR: Olu B. Davis
ASSISTANT EDITOR: Darrell Dela Rosa
FACT CHECKER: Michelle Harris

308

313

Changing Priorities
Oversight of police conduct
took a more aggressive
stance under President
Obama.

Half of Arrest-Related
Killings Are of Minorities
Blacks and Hispanics made
up more than half of those
killed while under arrest
from 2003 through 2009.

An Imprint of SAGE Publications, Inc.

305

Killings of Arrestees by
Police on Rise
Police committed 2,931 arrestrelated killings from 2003
through 2009.

BACKGROUND

311

Chronology
Key events since 1960.

312

Supreme Court Eases
Rules on Police Searches
Evidence gleaned illegally
allowed in criminal trials.

CURRENT SITUATION

316

318

Investigations Urged
Citizens groups in several
cities want the Justice Department to examine police agencies with records
of fatal shootings.
Reforms Outlined
Seattle is preparing to
adopt a plan to overhaul
its police procedures, but
reform efforts in New
Orleans have hit a snag.

OUTLOOK

319

Police Under Pressure
Budget cuts and homeland
security concerns add to
the pressures on police.

Cover: AP Photo/Ted S. Warren

302

CQ Researcher

314

Police Under Scrutiny in
Trayvon Martin Case
Critics question handling of
shooting.

317

At Issue
Is the exclusionary rule
needed to deter illegal police
searches?

FOR FURTHER RESEARCH

321

For More Information
Organizations to contact.

322

Bibliography
Selected sources used.

323

The Next Step
Additional articles.

323

Citing CQ Researcher
Sample bibliography formats.

VICE PRESIDENT AND EDITORIAL DIRECTOR,
HIGHER EDUCATION GROUP:

Michele Sordi
DIRECTOR, ONLINE PUBLISHING:

Todd Baldwin
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Police Misconduct
BY KENNETH JOST

THE ISSUES

wide-ranging reforms to be
supervised by a federal court.
The negotiations follow a
endell Allen was
scathing report by the Justice
wearing only paDepartment’s civil rights division
jama bottoms
in March 2011 that accused the
when New Orleans police ofNew Orleans police of routine
ficers on a marijuana raid
constitutional violations, inbroke into his house in the
cluding use of excessive force,
city’s middle-class Gentilly
improper searches and racial
neighborhood on the evening
and ethnic discrimination. 3
of March 7. Armed with a
The 158-page report is one
search warrant, six officers,
of nine published so far by
clad in plain clothes covered
the civil rights division’s soby jackets identifying them
called “special litigation secas police, announced their
tion” under President Obama
presence and, after receiving
that have held police departno response, barged in.
ments around the country up
Allen, a 20-year-old former
to highly critical scrutiny. In
high school basketball star with
three reports published witha previous marijuana-related
in five days in mid-December,
conviction, was in the stairJustice Department investigawell, unarmed, when Officer
tors upbraided Seattle police
Joshua Colclough fired a sinfor use of excessive force and
gle gunshot that hit Allen in
the Maricopa County, Ariz.,
the chest. The bullet penetratsheriff’s office and East Haven,
ed Allen’s heart, aorta and lungs.
Conn., police department for
He died “almost instantly,”
ethnic profiling of Latinos. (See
New Orleans Parish Coroner
graphic, p. 304.)
Frank Minyard said later. 1
Racial profiling is also at the
Allen’s death, the second
heart of the nationwide confatal shooting of an Africantroversy over the Feb. 26 fatal
American youth by New Orshooting of a black Florida
Natalie Gomez holds a picture of her brother, 22-yearleans police within a week,
teenager by a white neighborold Alan Gomez, who was killed last year by
remains under what Superhood watch volunteer. (See
Albuquerque, N.M., police. Ms. Gomez participated in a
intendent Ronal Serpas
sidebar, p. 314.) Trayvon Marrally on June 14, 2011, protesting the police department’s
promises will be “a complete
tin,
17, was shot as he was reuse of lethal force. The department’s police union was
and thorough” investigation.
turning from a convenience store
found to have been giving officers involved in fatal
shootings $500 to help them recover from stress.
Colclough, in his fifth year
to the house of his father’s girlCritics have called the payments a
with the force, gave a volfriend in Sanford, an Orlando
bounty system for killing suspects.
untary statement to investisuburb. George Zimmerman,
gators a week after the shooting. His son, leader of the United New Orleans whose mother is Hispanic, claims he shot
attorney, Claude Kelly, says an “hon- Front, declared as protesters massed the unarmed Martin in self-defense after
est” investigation will show the shoot- outside police headquarters two days following the youth because of what he
after the shooting. Helen Shorty, Allen’s regarded as suspicious behavior. The ining was justified.
Allen’s family and leaders of the city’s grandmother, called for Colclough to cident has touched off nationwide deAfrican-American community, however, be booked for murder. 2
bate not only over racial profiling but
The shootings come as the long- also over Florida’s so-called Stand Your
have no doubt that the shooting was
unwarranted. “There have been egre- troubled department is negotiating with Ground law, which allows someone to
gious wrongs done to the black com- the U.S. Department of Justice (DOJ) use deadly force when feeling threatened,
munity of New Orleans,” W. C. John- the terms of a possible agreement on with no duty to attempt to retreat.
AP Photo/The Albuquerque Journal/Greg Sorber

W

www.cqresearcher.com

April 6, 2012

303

POLICE MISCONDUCT
Justice Department Targets Police Misconduct
U.S. Department of Justice investigators have examined the policies
and practices of more than two dozen law enforcement agencies
over the past decade and found a range of illegal or otherwise
improper practices, ranging from harsh treatment of suspects and
racial profiling to failure to probe allegations of sexual assault. Here
are highlights from five recent Justice Department reports.

New Orleans
(March 17, 2011) Use of excessive force; unconstitutional stops,
searches and arrests; biased policing; racial, ethnic and sexualorientation discrimination; failure to provide effective policing services to
persons with limited English proficiency; systemic failure to investigate
sexual assaults and domestic violence.

Puerto Rico
(Sept. 7, 2011) Excessive force; unreasonable force, other misconduct
designed to suppress exercise of First Amendment rights; unlawful searches
and seizures; evidence of frequent failure to police sex crimes and incidents
of domestic violence; evidence of discriminatory practices targeting individuals of Dominican descent; “staggering level” of crime and corruption.

Maricopa County, Ariz. (includes Phoenix)
(Dec. 15, 2011) Racial profiling of Latinos; unlawful stops, detentions and
arrests of Latinos; unlawful retaliation against individuals who complain
about or criticize the office’s policies or practices; reasonable cause to
believe the office operates its jails in a manner that punishes Latino inmates
with limited English proficiency for failing to understand commands given
in English and denying critical services provided to other inmates.

Seattle
(Dec. 16, 2011) Use of unnecessary or excessive force; lack of adequate
training on use of force; failure of supervisors to provide oversight on use
of force; serious concerns about possible discriminatory policing,
particularly relating to pedestrian encounters.

East Haven, Conn.
(Dec. 19, 2011) Systematic discrimination against Latinos, including
targeting Latinos for discriminatory traffic enforcement, treating Latino
drivers more harshly than non-Latino drivers after a traffic stop and
intentionally and woefully failing to design and implement internal
systems of control that would identify, track and prevent such misconduct.

Source: U.S. Department of Justice, www.justice.gov/crt/about/spl/findsettle.php.

304

CQ Researcher

The most recent reports by the Justice Department’s police accountability
unit exemplify its more aggressive stance
after an eight-year period of dormancy under President George W. Bush.
“They’ve been very assertive,” says
Samuel Walker, a professor of criminal
justice, emeritus, at the University of
Nebraska-Omaha and the nation’s senior
academic expert on police-accountability
issues. In all, the unit is conducting 20
investigations of state or local law enforcement agencies.
Local police officials sometimes challenge the Justice Department’s findings. “The department is not broken,”
a defiant Seattle Police Chief John Diaz
declared as the DOJ’s report was being
released on Dec. 16. The city’s mayor,
Mike McGinn, backed him up.
Over time, however, local officials
generally yield to federal authorities.
In East Haven, Police Chief Leonard
Gallo retired on Jan. 30 in the wake
of DOJ criticism. In Seattle, McGinn
rethought his initial skepticism about
the report in the face of public criticism and directed Diaz to begin carrying out some of the Justice Department’s proposed changes.
In Arizona, however, the outspoken
Maricopa County Sheriff Joe Arpaio is
refusing the Justice Department’s insistence for court supervision of changes
in police and jail policies. “None of us
agreed to allow a federal monitor to
come remove my authority as the elected sheriff of Maricopa County,” Arpaio
declared on April 3. The government
now has the option of going to federal
court on its own to force changes. 4
Holding police departments accountable to the law has been an intractable problem since the era of
urban police departments began in the
1830s. 5 The 20th century saw a succession of efforts to reduce or eliminate police misconduct, starting with a
movement to professionalize policing
and continuing through the mid-century
criminal-law revolution under Chief Justice Earl Warren.

In the decades since, civilian review
boards or other independent auditing
mechanisms have advanced from objects of fierce debate to structures viewed
by police organizations themselves as
“best practices.” Congress in 1994 also
gave the Justice Department a direct
role in police reform by passing a law
authorizing the federal government to
sue state or local law enforcement
agencies if it found a “pattern or practice” of violations of constitutional or
federally protected rights.
The reforms have borne fruit in a
general strengthening of policies and
improved conduct by police officers
in the nation’s nearly 18,000 state or
local law enforcement agencies nationwide. “We’ve seen a progressive improvement in the professionalism of
law enforcement over the last 30 years,”
says Andrew Scott, a police consultant
since his retirement as Boca Raton, Fla.,
police chief in 2006, after 30 years in
law enforcement.
“Police departments have come a
long way, both in terms of the officers
and the leadership in policing,” says
Hubert Williams, president of the Police Foundation, a Washington-based
research organization, and a former
Newark, N.J., police chief.
Walker, a civil liberties-minded researcher on police practices and policies since the 1970s, agrees that police
behavior has generally improved over
the past few decades. But he says there
is a continuing gap between the country’s best and worst departments. “Some
departments are taking up what I call
the new accountability measures, moving forward, doing the right thing, and
reducing misconduct,” Walker says. “And
there are some that slip back.”
The New Orleans department, by
common agreement, ranks low on
those measures. “The New Orleans Police Department has never been a
model of good behavior so to speak,”
says Marjorie Esman, executive director of the American Civil Liberties Union
of Louisiana (ACLU-La.).

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Killings of Arrestees by Police on Rise
From 2003 through 2009, law-enforcement officials committed
2,931 arrest-related killings, whether criminal or justifiable, of
people in their custody. Some experts caution that the upward trend
over the seven-year period may reflect improvements in data
reporting.
Arrest-Related Killings by Law Enforcement Personnel, 2003-2009
500
400
300

376

375

377

2003

2004

2005

447

455

2006

2007

497
404

200
100
0

2008

2009

Source: Andrea M. Burch, “Arrest-Related Deaths, 2003-2009 — Statistical Tables,”
Bureau of Justice Statistics, U.S. Department of Justice, November 2011, p. 4,
bjs.ojp.usdoj.gov/content/pub/pdf/ard0309st.pdf

Walker is even blunter: New Orleans is “everybody’s candidate for the
worst police department.”
Far from fighting the Justice Department’s findings, New Orleans superintendent Serpas joined the DOJ’s civil
rights chief Thomas Perez in the
March 17, 2011, news conference to
release the report. Serpas said it contained few surprises and went on to
pledge improvement. “I am convinced
we will be a world-class police department,” he said. A week later, Serpas said
many of the reforms were already
being put into effect. 6
The Justice Department launched
its investigation in May 2010 at the request of the city’s newly inaugurated
mayor, Mitch Landrieu. The investigation came on top of ongoing federal
prosecutions of officers implicated in
the attempted cover-up of the shooting of six unarmed black civilians on
the Danziger Bridge six days after Hurricane Katrina devastated the city in
September 2005.
By May 2010, four officers had already pleaded guilty to obstruction-type
charges in connection with the shoot-

ing. In addition to one other guilty plea,
five officers were convicted in August
2011 on federal civil rights charges after
a seven-week trial. U.S. District Court
Judge Kurt Engelhardt imposed sentences ranging from 38 to 65 years on
four of the five defendants after an emotional sentencing hearing on April 4; a
fifth defendant drew a six-year term.
One other defendant is awaiting a retrial, set to begin in May, after a mistrial in January. 7
As in previous investigations, Justice
Department lawyers are negotiating with
New Orleans officials on possible reforms. The changes would be included in a consent decree to be overseen
by a federal court for a specified period.
The department has followed the same
procedure since the mid-1990s in such
major cities as Pittsburgh, Cincinnati,
Detroit and Los Angeles.
A one-day roundtable with police
officials, experts and others convened
by the Justice Department in June 2010
concluded the procedure has been effective in reforming police department
practices. Experts generally agree. “Departments have come out of this much

April 6, 2012

305

POLICE MISCONDUCT

Getty Images/Mario Tama

better than they went in,” says David terterrorism investigations. The AP sto- are some of the arguments being
Harris, a professor at the University of ries, dating from summer 2011 and heard as those issues are debated:
continuing, show that the department
Pittsburgh School of Law.
Some of the officials at the roundtable, investigated hundreds of mosques and Should police do more to control
however, complained that the process Muslim student groups and infiltrated excessive force?
John Williams was carrying a board
creates a “negative stigma” that takes time dozens. City officials are defending the
practice, but some Muslim leaders are and an open wood-carving knife at an
for a department to overcome. 8
As assistant attorney general for civil calling for the resignation of Police intersection near Seattle’s Pioneer Square
rights, Perez has pushed the “pattern or Commissioner Raymond Kelly. 10
on Aug. 30, 2010, when Police Sgt. Ian
practice” process more
Birk spotted him, got out
vigorously than any of
of his patrol car and orhis predecessors. In addered him to drop the
dition to New Orleans,
knife. When the hearingPerez personally attendimpaired Williams failed to
ed news conferences to
respond, Birk fired four shots
announce the reports in
from about nine feet away.
Seattle and Maricopa
Williams, a fixture at the
County. “When police
nearby social service center
officers cross the line,
for Native Americans, died
they need to be held acat the scene.
countable,” Perez told The
Williams’ death added
Washington Post. “Crimto long simmering coninal prosecutions alone
cerns about use of force
will not change the culby Seattle police forces.
ture of a department.” 9
Led by the ACLU of WashOne of the supposed
ington State, a coalition of
deterrents to police mis34 community groups
conduct, however, is
asked the Justice Departbeing weakened by the
ment to investigate. The
Supreme Court under
department’s devastating
Chief Justice John G.
report, released on Dec. 16,
Roberts Jr., according to
found routine violations of
civil liberties advocates.
constitutional rights when
The Roberts Court has
force was used, with a
issued three decisions in
small number of officers
the past six years that
responsible for a disprosomewhat narrow the
portionate number of inexclusionary rule — the
stances and with scant
court-created doctrine
internal review of the inthat prohibits the use of
cidents. “Seattle cannot
evidence police find durcontrol its own officers,”
An opponent of a controversial New York City Police Department
ing illegal searches. (See
says Jennifer Shaw, deputy
“stop and frisk” policy marches in the Bronx borough on Jan. 27,
2012. The NYPD says the policy helps to prevent crime, but critics
story, p. 312; “At Issue,”
director of the ACLU afaccuse the police of racial profiling and civil rights abuses.
p. 317.)
filiate. 11
Out of 684,330 persons stopped by NYPD officers in 2011,
Meanwhile, the New
Statistics are hard to
the vast majority — 87 percent — were black or Hispanic.
York City Police Decome by, but experts appartment, the nation’s largest, is under
The Justice Department investiga- pear to agree that police use force less
a national spotlight after news reports, tions, coupled with the recurrent local frequently today than in the past.
particularly by The Associated Press, de- controversies over police behavior, “Overall, it is less frequent than it was
tailing the department’s secret infiltra- focus increased national attention on in the 1960s,” says the Police Foundation and surveillance of Muslim and such issues as use of force, racial pro- tion’s Williams. A study by the Intersome liberal groups as part of coun- filing and police accountability. Here national Association of Chiefs of Police

306

CQ Researcher

(IACP), published in 2001, found that
police used force 3.6 times per 10,000
service calls during the 1990s. Citing
the IACP’s and a more recent study,
the National Institute of Justice, the Justice Department’s research arm, concluded in 2011 that use of excessive
force is “rare,” even while conceding
the difficulty of defining “excessive.” 12
As in Seattle, a small number of officers are typically found most likely
to resort to force or to use excessive
force in encounters with civilians. “The
vast majority of officers do not engage
in excessive use of force,” says former
chief Scott. “It is the small minority of
officers who abuse their power.”
The U.S. Supreme Court has given
only limited guidance on use of force
by police. The court ruled in 1985 that
police can use deadly force when pursuing a fleeing suspect only if the suspect poses a significant threat of death
or serious physical injury to the officer or others. In a broader ruling, the
court held in 1989 that any use of force
by an officer must be objectively reasonable. Factors to be considered include the severity of the crime, whether
the suspect poses “an immediate safety threat” and whether the suspect is
“actively resisting arrest” or attempting
to escape. The court added that the
“calculus of reasonableness” should take
into account an officer’s need to make
“split-second judgments.” 13
“The legal standards are pretty loose,”
says Robert Kane, an associate professor at the University of Baltimore’s
School of Criminal Justice and co-author
of a forthcoming book on police accountability issues. “There’s a lot of
gray in terms of trying to judge the
appropriateness of force.”
City governments are occasionally
hit with five-, six- or even seven-figure
damage awards in suits by victims of
police beatings or shootings. As one
dramatic example, Rodney King was
awarded $3.8 million for the beating
he suffered from Los Angeles police
officers in 1991 after a high-speed car

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Police Handle Tense Situations in Steps
Most law enforcement agencies have policies that guide their use of
force. Such policies describe an escalating series of actions an officer
may take to resolve a situation. Officers are instructed to respond
with a level of force appropriate to the situation. An officer may move
from one part of the continuum to another in a matter of seconds.

A typical use-of-force continuum:
Officer Presence — No force is used. Considered the best way to resolve
a situation.
• The mere presence of a law-enforcement officer works to deter
crime or defuse a situation.
• Officers’ attitudes are professional and nonthreatening.
Verbalization — Force is not physical.
• Officers issue calm, nonthreatening commands, such as “Let me see
your identification and registration.”
• Officers may increase their volume and shorten commands in an
attempt to gain compliance. Short commands might include “Stop”
or “Don’t move.”
Empty-Hand Control — Officers use bodily force to gain control of a
situation.
• Soft technique. Officers use grabs, holds and joint locks to restrain
an individual.
• Hard technique. Officers use punches and kicks to restrain an
individual.
Less-Lethal Methods — Officers use less-lethal technologies to gain
control of a situation.
• Blunt impact. Officers may use a baton or projectile to immobilize a
combative person.
• Chemical. Officers may use chemical sprays or projectiles embedded
with chemicals to restrain an individual. Pepper spray is an example.
• Conducted Energy Devices (CEDs). Officers may use a device such as
a Taser to immobilize an individual. Such devices discharge a
high-voltage, low-amperage jolt of electricity at a distance.
Lethal Force — Officers use lethal weapons to gain control of a situation.
These should be used if a suspect poses a serious threat to an officer or
other individual.
• Officers use deadly weapons such as firearms to stop an individual’s
actions.
Source: www.nij.gov/nij/topics/law-enforcement/officer-safety/use-of-force/
continuum.htm

chase. Criminal prosecutions are more
difficult. The King case ended in state
court acquittals of four officers and a
federal civil rights trial that ended with
two convictions and two acquittals.

Internally, police departments appear
to reject most citizen complaints of excessive force. In a recent study of eight
local police departments, researchers at
Michigan State University and Central

April 6, 2012

307

POLICE MISCONDUCT
Half of Arrest-Related Killings Are of Minorities
More than half of the 2,958* people who were killed while under
arrest from 2003 through 2009 were black or Hispanic. Whites
comprised 42 percent of the total. All but 27 of the deaths were at the
hands of law enforcement officers.

Racial Origin of Those Killed
While Under Arrest, 2003-2009
Unknown

2.8%

White,
non-Hispanic

41.7%

Other *

3.6%
Hispanic

20.3%

Black,
non-Hispanic

31.7%

* Includes American Indians, Alaska Natives, Asians, Native Hawaiians, other
Pacific Islanders and persons of two or more races.
Figures do not total 100 because of rounding.
Source: Andrea M. Burch, “Arrest-Related Deaths, 2003-2009 — Statistical Tables,”
Bureau of Justice Statistics, U.S. Department of Justice, November 2011, p. 6, bjs.ojp.
usdoj.gov/content/pub/pdf/ard0309st.pdf

Florida University found that six took no
action on at least 90 percent of the complaints during the two-year period studied. Only three officers were suspended
and one terminated because of use-offorce complaints during the period. 14
The IACP’s model policy on use of
force largely restates the general guidelines from the Supreme Court, with
added advisories against firing warning
shots or shooting at a moving vehicle.
Many departments provide more detailed guidance, including a so-called
use of force continuum that correlates
the level of force to be used with the
suspect’s level of resistance or threat
to safety. (See graphic, p. 307.)

308

CQ Researcher

Walker says policies and training are
the keys to reducing excessive force
by police. “If you have a bad use-offorce incident, it’s a mistake to focus
on the officer because the underlying
cause is some failure by the department: lack of proper training or lack
of proper supervision,” he says.
Should police do more to prevent
racial and ethnic profiling?
Many studies over the past two decades
have shown that African-American and
Hispanic drivers are more likely to be
stopped for traffic enforcement than
white motorists. In a mammoth journalistic project, the Hartford Courant

took the issue one step further earlier
this year by analyzing what happened
in Connecticut to drivers after they
were stopped by local police.
The newspaper’s analysis of more
than 100,000 traffic stops found that
blacks and Hispanics were far more
likely to get a citation than whites stopped
for the same offense. As one example,
blacks were twice as likely and Hispanics four times as likely to be ticketed for improper taillights as whites
stopped for the same reason. “This is
beyond profiling,” Glenn A. Cassis, executive director of the state’s AfricanAmerican Affairs Commission, told the
newspaper. “This goes to actually a level
of discrimination, and who gets the wink
and who doesn’t get the wink.” 15
The Justice Department’s recent reports found similar evidence of racial
or ethnic profiling in New Orleans, Maricopa County and East Haven. In New
Orleans, investigators found that police
shot 27 civilians during a 16-month
period, all of them African-Americans.
In Maricopa County, Latino drivers were
four to nine times more likely to be
subjected to traffic stops than similarly
situated non-Latino drivers. In East Haven,
Latinos make up about 10 percent of
the population, but accounted for nearly 20 percent of traffic stops. 16
The tensions between police departments, historically predominantly
white, and African-American and Hispanic communities are of long standing. The U.S. Supreme Court’s initial decision, in 1936, limiting police conduct
during interrogations came in the case
of three black tenant farmers who confessed to murder only after being tortured. Los Angeles police tacitly abetted
white servicemen attacking Latinos in
the “Zoot Suit” riots in 1943. The Kerner Commission report on urban riots of
the 1960s listed the “deep hostility between police and ghetto communities
as a primary cause of the disorders.”
Racial profiling advanced to the top
of the national agenda in the mid- and
late-1990s — as seen in the popular-

izing of the grimly ironic phrase “driving while black.” In litigation that
documented the experiences of many
African-Americans, ACLU affiliates in
several states filed suits contesting the
practice. Some states, including Connecticut, responded by passing laws requiring demographic statistics-gathering
on traffic stops to try to spot signs of
racial profiling.
Racial and ethnic profiling appears
to be continuing despite increasing diversity on local police forces. The New
Orleans police force is now majority
black. In New York City, a majority of
the police officers are black, Latino or
Asian; whites comprise only 47 percent.
Out of 684,330 persons stopped by
NYPD officers in 2011, however, the
vast majority — 87 percent — were either black or Hispanic. 17
Harris, the Pittsburgh law professor
and author of a book on racial profiling, says the practice “is a police issue,
not a race issue.” Profiling, he says, “is
a product of the training, culture and
customs within that department. Black
officers are going to be trained like all
others. They’re going to want to fit in
just like all officers.”
Other experts say profiling results
naturally from the demographics of crime.
“This is a social issue,” says the University of Baltimore’s Kane. “We know
that race and class are strongly tied up
with crime, perceptions of crime and
urban disorder. Crime and race are not
randomly distributed across America.”
“It is a problem, and it will continue to be a problem,” says police
consultant Scott. “But it may not be
extending from a police officer’s bigotry. If you have a particular segment
of the community that is particularly
involved in a particular crime, part of
the profiling has to be the ethnicity
of the offender.”
Identifying impermissible profiling
can also be difficult, Scott adds. “It may
be insidiously nontransparent as to
why an officer has stopped a particular individual,” he says. In its report on

www.cqresearcher.com

East Haven, the Justice Department accused the force of “intentionally and woefully failing to design and implement internal systems of control that would identify,
track, and prevent such misconduct.” The
report on Maricopa County faulted Sheriff Arpaio by name for using “unverified
tips or complaints” that were “infected
with bias against Latino persons.”
Police Foundation president Williams
says the responsibility for stopping the
practice rests with police officials. “Are
chiefs dealing with the problem?” he
asks rhetorically. “I think they have
policies that prohibit it, and from that
perspective they’re dealing with it. It’s
the enforcement of those policies that’s
the big question mark. In that area,
there’s more of a question mark.”
Should police adopt stronger disciplinary measures for misconduct?
Jason Mucha has had a checkered
career with the Milwaukee Police Department since being hired as an aide
in 1996 while still a teenager. He was
promoted to sergeant in 2005, but over
the next few years was accused by 10
different suspects of either beating them
or planting drugs or both. Although he
was never disciplined, a state appeals
court explicitly questioned Mucha’s credibility as a witness, and the U.S. attorney’s office dropped one case rather
than put him on the stand.
The department’s disciplinary procedure has now caught up with Mucha,
however, after he and fellow squad
members were accused of invasive
body searches in drug investigations.
Mucha and seven officers in his unit
were stripped of police powers and reassigned to desk duties in March because of the accusations, according to
the Journal Sentinel. Without confirming the report, Chief Edward Flynn told
a news conference on March 22 that if
the allegations were true, the searches
would have violated state law. 18
The Journal Sentinel has been on
the department’s case over discipline
for years. A three-part series in Octo-

ber 2011 criticized the department for
allowing “at least” 93 officers to remain on the force despite offenses
such as drunken driving and domestic violence. A similar, nine-part series
by the Sarasota Herald Tribune in December found that “thousands” of officers remain on the job in Florida police departments despite “arrests or
evidence” implicating them in crimes
punishable by prison sentences. 19
Despite such newspaper investigations, some experts give police departments generally good marks for
disciplining rogue cops. “Internal discipline is taken seriously by most if not
all American police departments,” the
University of Baltimore’s Kane says.
“Police commanders and departments
can often determine that a police officer is not good for the department
and not good for the public.”
Police Foundation president Williams
gives a mixed review. “Some police
departments are very good at discipline — a lot, not just a few,” he says.
“But I wouldn’t want to say that all
police departments are like that.”
ACLU officials are more critical. “We
have found problems with internal disciplinary procedures around the country,” says Vanita Gupta, deputy legal
director for the national ACLU. “To say
that they are an adequate remedy for
these violations is a real problem. It’s
just not how it plays out.”
The disciplinary procedures that exist
today are the culmination of decades
of pressure from outside groups — in
particular, groups such as the ACLU
and other civil rights organizations —
for more effective oversight of police
practices in general and in specific cases.
“Some form of citizen oversight exists
in almost every city,” according to the
University of Nebraska’s Walker.
In contrast to civilian review boards
— perhaps the most common oversight mechanism — Walker says he
prefers the appointment of an independent auditor for a department. “They
have authority to review the operations

April 6, 2012

309

POLICE MISCONDUCT
of an agency and to make public reports,” Walker explains. “That’s the best
solution for improving the department,
not just finding guilt or innocence in
a particular incident.”
Roger Goldman, a professor at
St. Louis University School of Law who
has specialized in police accountability
issues, notes that even when an officer
has been removed from a force, he or
she often looks for — and sometimes
finds — a job with another law enforcement agency. To remedy the problem, Goldman favors a system of “decertifying” an officer for any police
work after a finding of misconduct —
akin to disbarment for lawyers, for example. “The problem can’t be left up
to local municipalities and police departments to handle,” he says.
Police consultant Scott says police
unions represent a big obstacle to
strengthened discipline. “The unions
can protect the incompetent, and the
malicious, and allow them to get back
on the streets,” Scott says. “The unions
have lost their way as to who they’re
supposed to represent in the bigger
picture of law enforcement.”
Other experts, however, stress the
role of leadership at the top in improving discipline. “What you’ve got
to have,” says Williams, “is commitment at the highest levels of the department.” The ACLU’s Gupta agrees.
“We know and police experts know
how to implement best practices in
this area,” she says. “There are best
practices out there, but there still remains a lot of work to be done.”

BACKGROUND
Police Problems
olice misconduct has been a persistent problem since full-time police forces were first organized in the

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United States in the mid-19th century.
Political patronage and financial corruption were dominant concerns in
the 1800s; use of force and other coercive tactics and racial and ethnic discrimination became major issues in the
1900s. A reform movement to professionalize policing dates from the early
20th century. The Supreme Court began
to exercise oversight by the 1930s and
then brought about significant changes
in police practices with decisions in
the 1960s establishing new limits on
interrogations and searches. 20
The constables and night watches of
the colonial and early post-independence
years proved inadequate for law enforcement by the mid-19th century. The
emergence of urban centers brought
with it the breakdown of law and order
due to interethnic clashes, economic
discontent and conflict over political issues, including slavery. Philadelphia and
Boston created police forces in the 1830s
— not long after Sir Robert Peel in 1829
had created the first urban police force
in London, England. New York City
followed in 1845.
The 19th century officer was typically unarmed and untrained, inefficient
and largely ineffective in preventing
crime. He was likely chosen on the
basis of political patronage and afforded no job security.* Corruption was
“epidemic,” according to a textbook by
the University of Nebraska’s Walker and
Arizona State University professor of
criminology Charles Katz, but reform
efforts typically consisted merely of
replacing supporters of one political
faction with those of another. And
“no attention” was given to the two
issues that would dominate the 20th
century: excessive force and racial
discrimination. 21
More serious reform efforts began
in the early 20th century as part of Progressive Era movements to replace spoils* Chicago is now believed to have hired the
first female officer in 1891; Portland, Ore., followed in 1905, Los Angeles in 1910.

system, moneyed-interest politics with
popular democracy and professional
government services. Walker and Katz
credit August Vollmer, chief of the Berkeley, Calif., police force from 1905 to
1932, as the father of the movement
to define policing as a profession. He
created college-level courses in police
work and, along with other reformers,
favored raising standards for hiring officers, eliminating political influence and
placing control in the hands of qualified administrators.
But police reform “progressed very
slowly,” Walker and Katz write. And
in 1931 Vollmer co-authored a critical
report by the presidentially appointed
National Commission on Law Observance and Enforcement, commonly
called the Wickersham Commission.
Among its findings: Physical brutality
was “extensively practiced” by police
departments around the country.
The Supreme Court first entered the
field in 1936 with a unanimous decision, Brown v. Mississippi, declaring the
use of confessions obtained by torturelike interrogation to be a violation of
the Due Process Clause. Over the next
three decades, the court adopted a
case-by-case approach that barred confessions if induced by either physical
or psychological coercion.
By the 1960s, the court saw the
need to adopt a stronger, preventive
safeguard. The result was the controversial but now largely accepted decision, Miranda v. Arizona (1966),
which required police to advise a suspect of his or her rights, including the
right to remain silent, before any custodial interrogation — that is, any interrogation during which the suspect
is not free to leave. Five years earlier, in Mapp v. Ohio (1961), the court
had established another landmark limitation on police conduct by requiring
states to enforce the exclusionary rule,
which bars the use of evidence obtained by police during an unconstitutional search or arrest. 22
Continued on p. 312

Chronology
1960s
Supreme Court
lays down rules for police

of constitutional or statutory rights
(42 U.S.C. § 14141).

Thomas Perez to head Justice Department’s civil rights division.

searches, interrogation.

Mid- to late ’90s
Justice Department uses new law to
get Pittsburgh and Steubenville, Ohio,
police departments to agree to reforms; launches investigations in other
cities, including Washington, D.C.

2010
Roundtable convened by Justice
Department finds police investigations “effective” in promoting reform; some police officials complain of “negative stigma.”

1999, 2000
Los Angeles Police Department is
rocked by disclosures of corruption, excessive force by antigang
unit in predominantly Latino Rampart neighborhood; Justice Department, city agree in 2000 on reforms, court supervision.

2011
Justice Department report sharply
criticizes New Orleans Police Department for excessive force, discriminatory policing; police chief
promises reforms (March 17). . . .
Five New Orleans officers are convicted in federal civil rights trial in
Danziger Bridge case (Aug. 5); five
others had pleaded guilty earlier. . . .
DOJ report lambasts Puerto Rico
Police Department for excessive
force, other issues (Sept. 7). . . .
Three more DOJ reports fault police in Maricopa County (Phoenix),
Ariz.; Seattle; East Haven, Conn.
(Dec. 15, 16, 19).

1961
Supreme Court says states must
adopt exclusionary rule to bar use
of evidence found by police during
unconstitutional searches (Mapp v.
Ohio).
1966
Supreme Court requires police to
advise suspects of rights before incustody interrogation (Miranda v.
Arizona).
1968
National Advisory Commission on
Civil Disorders (Kerner Commission)
report says distrust between police
and “ghetto communities” was major
cause of urban riots. . . . Law Enforcement Assistance Administration
is established to provide federal
grants to state, local law enforcement
agencies; in 14-year lifetime, agency
promotes accreditation standards,
provides funds for officer training.
•

1990s
Justice Department gains power to investigate
state, local law enforcement
agencies.
1991, 1992
Videotaped beating of Rodney
King by Los Angeles police officers provokes debate over use of
force, leads to riots in AfricanAmerican neighborhoods after officers are prosecuted but acquitted.
1994
Congress authorizes Justice Department (DOJ) to investigate state,
local law enforcement agencies for
“pattern or practice” of violations

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•

2001-Present
Bush administration pulls back
on police department investigations; Obama administration
takes aggressive stance.
2003
Detroit agrees to institute police
reforms after investigation initiated
in December 2000.
2005
Two African-American civilians
killed, four others wounded by
New Orleans police officers while
crossing Danziger Bridge to flee
post-Katrina flooding.
2006
Supreme Court allows use of evidence found in Detroit drug raid
despite officers’ failure to follow
knock-and-announce rule (Hudson
v. Michigan); first of Roberts Court
rulings weakening enforcement of
exclusionary rule.
2009
Eric Holder is named first AfricanAmerican attorney general; chooses

2012
East Haven Police Chief Leonard
Gallo retires (Jan. 30). . . .
African-American teenager Trayvon
Martin is shot and killed by neighborhood watch coordinator George
Zimmerman in Sanford, Fla. (Feb. 26);
death touches off debate over authorities’ failure to arrest Zimmerman, Florida law easing rule on
self defense. . . . Seattle mayor,
police chief adopt plan to revise
use-of-force policies, review racial
profiling (March 29). . . . Puerto
Rico Police Chief Emilio Díaz
Cólon resigns to avoid hurting reforms (March 29). . . . Maricopa
County Sheriff Joe Arpaio rejects
Justice Department demand for
court-supervised consent decree
(April 3). . . . Justice Department
weighs requests for formal investigations of police in Albuquerque,
Omaha, elsewhere.

April 6, 2012

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POLICE MISCONDUCT

Supreme Court Eases Rules on Police Searches
Evidence gleaned illegally allowed in criminal trials.
etroit police officers thought they were raiding a big
crack-cocaine house when they converged, seven
strong, on Booker Hudson’s home on the afternoon of
Aug. 27, 1998. Wary of being shot, Officer Jamal Good shouted,
“Police. Search warrant,” and then paused only a moment before
barging in.
Good’s nearly instantaneous entry violated a Supreme Court
decision issued three years earlier, in Wilson v. Arkansas, that imposed a so-called knock-and-announce rule requiring police to
wait a reasonable period after the initial knock before entering a
private home.
When Hudson was tried on cocaine charges, he sought to
exclude the evidence that police found in their search: five individually wrapped “rocks” of crack cocaine that he had in his
pants pockets. Michigan courts refused, and so did the U.S.
Supreme Court — in the first of three decisions under Chief
Justice John G. Roberts Jr. that critics say have seriously weakened the so-called exclusionary rule against using evidence
found during an illegal police search. (See “At Issue,” p. 317.)
Writing for the majority in Hudson v. Michigan (2006), Justice Antonin Scalia said the costs of applying the exclusionary
rule to knock-and-announce violations in terms of releasing
criminals would outweigh any benefits in terms of protecting
privacy or deterring improper police behavior. As one reason,
Scalia pointed to what he called the “substantial” existing deterrents to police violations of search rules.
David Moran, then a Wayne State University law professor
who represented Hudson before the Supreme Court, sharply
disagreed. “It’s a joke to say that the police will comply with
the knock-and-announce rule without the exclusionary rule as
a sanction,” he said. 1
The exclusionary rule, a distinctively U.S. legal doctrine, dates
from a 1914 Supreme Court ruling applying it to federal court
cases. The Supreme Court forced the same rule on state courts
in 1961 in one of the first decisions under Chief Justice Earl Warren that expanded the rights of suspects and criminal defendants.
The court trimmed but did not eliminate the rule under the next
two chief justices, Warren E. Burger and William H. Rehnquist.
Supporters of the exclusionary rule, criminal defense attorneys and civil liberties advocates among others, echo Moran’s

D

Continued from p. 310

The 1960s also saw agreement between Congress and the president to
increase the federal role in professionalizing state and local police agencies.
Since the 1930s, the FBI had been allowing local police officers to enroll in
what was originally called the FBI Train-

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CQ Researcher

view that the only effective deterrent to police misconduct in
conducting searches is to exclude the evidence from trial. Critics
say there are other deterrents, including police disciplinary procedures and civil damage suits.
As a White House lawyer under President Ronald Reagan,
Roberts helped lay the basis for a series of attacks aimed at either amending or abolishing the exclusionary rule. Now, as chief
justice, Roberts leads a five-vote conservative majority that critics say is transforming those broadsides into legal precedent. 2
The Hudson case came in Roberts’ first full term as chief
justice. Three years later, Roberts wrote for the same 5-4 majority in a second decision cutting back on the exclusionary
rule. The decision in Herring v. United States (2009) allowed
the use of evidence that an Alabama man was carrying when
he was arrested in 2004 on the basis of what was later found
to be an outdated arrest warrant. Roberts said the exclusionary rule applies only to police conduct that is “sufficiently
deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid
by the justice system.” 3
In a third decision, the court in June 2011 held that the exclusionary rule does not require suppression of evidence obtained by police if they relied in good faith on an established
court precedent, even if it was later overruled as violating the
Fourth Amendment’s protections against unreasonable searches and seizures (Davis v. United States). In January, however,
the court gave defense lawyers and civil liberties advocates a
significant victory by limiting the authority of police to attach
a GPS tracking device to a vehicle for surveillance purposes.
The unanimous ruling in United States v. Jones apparently requires police to get a search warrant unless they can show a
reason for an exception. 4
— Kenneth Jost
1

Account taken from Kenneth Jost, The Supreme Court Yearbook 2005-2006.
See Adam Liptak, “Justices Step Closer to Repeal of Evidence Ruling,” The
New York Times, Jan. 31, 2009, p. A1.
3 See Kenneth Jost, The Supreme Court Yearbook 2008-2009.
4 For coverage, see Adam Liptak, “Justices Reject GPS Tracking in a Drug
Case,” The New York Times, Jan. 24, 2012, p. A1.
2

ing School, now the FBI National Academy, in Quantico, Va. In 1968, Congress created, as part of the Omnibus
Crime Control and Safe Streets Act, a
new agency to support state and local
law enforcement: the Law Enforcement
Assistance Administration (LEAA).
In its 14 years of existence, LEAA

funneled about $8 billion in grants to
state and local police agencies. It was
abolished in 1982, unpopular in Congress and among some experts, in part
because of a penchant for funding expensive gadgetry. But it also is credited with helping establish standards
for police and corrections agencies

and with providing funds for training
state and local police officers.
“LEAA was the catalyst that promoted the education of police officers
by creating a significant amount of
money for police officers to get educated,” Police Foundation president
Williams says today. 23

Police Accountability
espite widely acknowledged improvements in professionalism
and accountability, major police departments around the country were
beset by high-profile scandals during
the final decades of the 20th century. Major controversies in New York
City and Los Angeles resulted in the
formation of blue-ribbon commissions
that recommended significant changes,
some eventually adopted. In Washington, Congress laid the foundation
for increased police accountability with
two legislative enactments: the 1994
provision authorizing Justice Department suits against rights-violating police departments and a 2000 provision requiring data collection on
arrest-related deaths.
Financial corruption of the sort widespread in earlier eras continued as a
recurrent issue. In the most dramatic
episode, New York City police detective Frank Serpico blew the whistle on
widespread bribery and extortion in the
NYPD in a newspaper expose in 1970
and a year later as a witness before the
blue-ribbon Knapp Commission. 24 The
city’s response to the commission’s recommendations for internal reforms was
criticized as timid. Two decades later,
however, Mayor Rudy Giuliani established a standing independent commission to combat police corruption.
Today, critics in New York continue to
highlight allegations of misconduct, but
the commission credits the department’s
Internal Affairs Bureau generally with
“thorough and diligent investigations”
of accusations. 25

D

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In the 1990s, the Los Angeles Police Department experienced two major
scandals, each of which made national
headlines. In the first, an onlooker captured on videotape the seemingly unjustified beating of an African-American
suspect, Rodney King, by LAPD officers
on the night of March 3, 1991, after a
high-speed automobile chase. The blueribbon Christopher Commission created in the wake of the incident found
that “a significant number” of officers
repetitively used excessive force against
suspects. The acquittals of the officers
charged in the King beating in 1992
touched off riots in the city’s largely
African-American neighborhoods and
helped force the resignation of Police
Chief Daryl Gates. He was succeeded
by Willie Williams, the LAPD’s first
African-American chief.
The King beating also led to the federal law authorizing the Justice Department to sue local police departments for rights violations. Members of
Congress from California pushed the
proposal unsuccessfully in 1991 and
1992; it was enacted in 1994 as a provision in the omnibus Violent Crime
Control and Law Enforcement Act, thanks
in part to a push from then-Senate Judiciary Committee Chairman Joseph
Biden. Despite its later importance, the
provision attracted little attention. A detailed Justice Department fact sheet on
the law failed to mention the provision.
By 1996, however, the department’s
civil rights division was beginning to
use the new powers with investigations
initiated in response to citizen complaints
of police departments in Pittsburgh and
Steubenville, Ohio. By the end of the
decade, those cases had resulted in consent decrees requiring organizational
changes. Nine other investigations were
pending as the decade ended, including one in Washington, D.C., requested
in 1999 by a new chief of police.
The department had already investigated the Los Angeles Police Department
for three years when a new scandal
erupted in 1999, featuring wide-ranging

excessive force, corruption and obstruction of justice accusations against members of an antigang unit assigned to one
of Los Angeles’ predominantly Latino
communities. The wide-ranging allegations of misconduct by Rampart Division officers included unprovoked shootings and beatings, planting of evidence,
stealing and dealing in narcotics and covering up of the offenses. The scandal
led to disciplinary actions against 58 officers, but an independent commission
later criticized the department’s response
as inadequate.
The Justice Department intensified its
investigation of the LAPD after the scandal. By mid-2000, government lawyers
were threatening to sue the city in federal court unless it agreed to wideranging internal reforms. Mayor Richard
Riordan resisted any agreement, but
painstaking negotiations eventually resulted in the city’s agreement to an enforceable consent decree that the city
council approved by a vote of 11-2 on
Nov. 2, 2000. Among other provisions,
the agreement required creation of a
new division to investigate all uses of
force. The decree, formally entered in
June 2001, was terminated in 2009. 26
Meanwhile, Congress gave the federal government an additional tool for
police accountability by passing the
Death in Custody Reporting Act to collect data on deaths of inmates in prisons and jails and of suspects in police custody. The bill was approved by
voice vote in the House of Representatives in June 2000 and by the Senate in September; President Bill Clinton signed it into law on Oct. 13. After
setting up procedures, the Bureau of
Justice Statistics began collecting reports
on police-custody deaths in fiscal 2003.

Changing Priorities
he Justice Department’s oversight of
local law enforcement agencies lagged
under President George W. Bush. Investigations and cases already initiated were

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April 6, 2012

313

POLICE MISCONDUCT

Florida Police Under Scrutiny in Trayvon Martin Case
Critics question handling of shooting by armed civilian.
he fatal shooting of an African-American teenager by a
volunteer neighborhood watch coordinator in a gated
suburban community in Florida has ignited a racially
charged debate over the police department’s handling of the
case. The episode also puts a national spotlight on Florida’s
controversial Stand Your Ground law, which allows a civilian
to use potentially lethal force in self-defense in public places
without first trying to retreat to safety. 1
Some six weeks after the Feb. 26 death of Trayvon Martin, a
special state prosecutor is set to present evidence in the case on
April 10 to a Seminole County grand jury. The U.S. Justice Department is also reviewing the case. The moves have come, however, only after local and national protests over the authorities’
decision that night not to file charges against George Zimmerman, a neighborhood watch volunteer since August 2011.
Martin, 17, was returning from a convenience store to the home
of his father’s girlfriend in the Retreat at Twin Lakes community
in Sanford, Fla., shortly after 7 p.m. when he drew Zimmerman’s
suspicions. Martin was unarmed; he was carrying a bag of candy
and a can of iced tea and wearing a gray hoodie to protect himself from the rain. Zimmerman, 28, a resident of white and Hispanic ancestry, was carrying a 9 mm handgun — despite earlier
instructions from the Sanford police department’s neighborhood
watch liaison that volunteers should not be armed.
Zimmerman had volunteered for the neighborhood watch in
August 2011 because of several burglaries in the gated community of some 260 homes. Suspicious of Martin, he placed a
911 call to the Sanford Police Department. Zimmerman said Martin was “just walking around” and appeared to be “up to no
good.” The police dispatcher advised Zimmerman not to follow
Martin and to wait to meet a patrol officer. Later in the recorded four-minute call, Zimmerman is heard saying something listed on the police transcription as “unintelligible” and interpreted
by others in the subsequent debate as a racial epithet.

T

continued, but reports on newly opened
investigations took a deferential tone toward police policies. Obama’s selection
of civil rights-minded officials for key
posts at the Justice Department signaled
a likely change in priorities. Even before Perez’s confirmation to head the
civil rights division, the special litigation
section’s report on one local department
took a sharper tone than those in the
Bush years. By the end of 2011, the
section’s activist stance was evident with
a record number of investigations open

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CQ Researcher

An altercation of some sort ensued after Zimmerman — 5-foot10, 170 pounds — got out of his vehicle and Martin — 6-foot-1,
150 pounds — realized he was being surveilled. An unidentified
girlfriend of Martin’s says Martin called her to complain about being
followed. Zimmerman’s father says his son told police that Martin
challenged him, used a racial epithet, forced him to the ground
and pummeled him with his fists.
Whatever the exact course of the dispute, Zimmerman fired
a single shot that hit Martin in the chest. Martin died at the
scene. The police officers who arrived handcuffed Zimmerman
and took him to the police station, where he was questioned
and released without having been tested for drugs or alcohol.
A video appears to show a gash on the back of Zimmerman’s
head but no serious injury to his face despite Zimmerman’s claim
to have suffered a broken nose during the altercation. A funeral director who examined Martin’s body said it showed no
scrapes, bruises or other signs of a fight other than the single
gunshot wound to his chest.
Martin’s death drew no news coverage for almost two weeks
until his father, Tracy Martin, held a news conference on March
8 to call for Zimmerman’s arrest and demand the release of
the tapes of Zimmerman’s 911 call. The tapes, released over
the next weekend, turned the episode from an overlooked local
story into a round-the-clock nationwide controversy.
In the weeks since, Martin has been described as a typical
teenage boy, with good manners and good attitude, but a record
of three suspensions from his high school in north Miami-Dade
County, where he lived with his mother. In February, he was
staying with his father in Sanford after having been hit with a
10-day suspension because of marijuana residue found in his
backpack.
Zimmerman is described as a former altar boy with unrealized
ambitions of becoming a police officer, capable of kindness but also
with a volatile temper. He was arrested in summer 2005 after push-

and stinging reports issued on five law
enforcement bodies within four months.
As a presidential candidate in 2000,
Bush said he believed police matters
should be handled locally. Under Bush,
the civil rights division became highly
politicized, morale declined sharply and
career lawyers left in droves. A later report by the Government Accountability Office found that the special litigation section suffered an attrition rate of
31 percent in 2005, 24 percent in 2006
and 18 percent in 2007. 27

The special litigation section had
achieved important victories early in the
Bush years in investigations begun by
the Clinton administration of police forces
in Washington, D.C.; Detroit; and Prince
George’s County, Md. The investigation
in Washington found “a pattern . . . of
excessive force” by officers in the 1990s
and applauded new efforts to reduce
the problem. Police officials agreed to
the appointment of a monitor to oversee the department for five years. In
Detroit, a consent decree agreed to in

AFP/Getty Images/Joe Klamar

the laws. Prosecutors in Florida
ing a Florida state alcohol
said the law had made it hardagent during a raid at a coler to bring charges in homicides
lege-area bar; the charge
where the suspect claimed selfwas dropped after Zimmerdefense. Police organizations
man agreed to a pretrial dihave criticized the laws, but gunversion program. A month
rights groups have defended
later, he and his ex-fiancée
them.
obtained reciprocal domesOnly after a full month had
tic violence injunctions based
passed since the shooting was it
on mutual accusations of
reported that Sanford Detective
physical violence.
Chris Serino, the lead investigaFrom the outset, authortor in the case, had initially recities in Sanford and Semiommended charging Zimmerman
nole County explained that
Protesters in downtown Los Angeles mark the
with manslaughter only to be overZimmerman had not been
one-month anniversary of the Feb. 26, 2012, killing of
unarmed black teenager Trayvon Martin by a
ruled by his chief and by state’s
charged in the shooting in
neighborhood watch volunteer in Florida.
attorney Norman Wolfinger, who
part because of a law Florihas declined to comment on the
da enacted in 2005 making
report. Wolfinger was removed
it harder to prosecute individuals in the face of a claim of self-defense. The Stand Your from the case after Gov. Rick Scott and Attorney General Pamela
Ground law extends the long-established “castle doctrine” — al- Bondi appointed Angela Corey, the state’s attorney from the Jacklowing the use of deadly force in self defense inside one’s home sonville area, as special prosecutor.
— to any setting, private or public.
— Kenneth Jost
In its central provision, the 1,000-word statute provides that
someone in a place where he or she has a right to be “has
no duty to retreat and has the right to stand his or her ground 1 For a comprehensive overview, see Dan Barry, Serge F. Kovaleski, Campbell Robertson and Lizette Alvarez, “In the Eye of a Firestorm: In Florida,
and meet force with force, including deadly force if he or she an Intersection of Tragedy, Race and Outrage,” The New York Times, April
reasonably believes it is necessary to do so to prevent death 2, 2012, p. A1, www.nytimes.com/2012/04/02/us/trayvon-martin-shootingor great bodily harm to himself or herself or another or to pre- prompts-a-review-of-ideals.html?_r=1&hp. The rapidly changing, heavily annotated Wikipedia entry on the case includes links to the 911 call made
vent the commission of a forcible felony.” The law specifically on the night of Trayvon Martin’s shooting, to other police documents and
provides immunity from criminal or civil liability if the use of to collections of news and commentary in The New York Times and Wall
Street Journal, http://en.wikipedia.org/wiki/Shooting_of_Trayvon_Martin. Backforce is justified. 2
ground details drawn from both accounts.
Similar laws are on the books in about half the states. Cov- 2 See Title XLVI, Chap. 0776, www.flsenate.gov/Laws/Statutes/2011/Chapter
erage of the Florida episode has led to a national debate over 0776/All.

June 2003 similarly provided for an outside monitor to check compliance with
changes that included new steps to
track officers named in excessive-force
complaints. In Prince George’s County
in suburban Washington, D.C., the police agreed in January 2004 to curb excessive force by officers and restrict the
use of police dogs, with compliance to
be tracked by an outside monitor. 28
In later years, however, reports on
police departments appeared to steer
clear of pointed criticism or threats of

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litigation. Instead, reports, such as one
in August 2008 suggesting the Orange
County (Fla.) Sheriff’s Office adopt new
policies on the use of Tasers, generally included language specifying that
the “technical assistance” being provided was viewed “as recommendations and not mandates.” 29
Obama’s appointment of Eric Holder
as the first African-American to serve
as attorney general signaled a likely
reinvigoration of the Justice Department’s
role in civil rights enforcement, includ-

ing police-accountability investigations.
As deputy attorney general in the Clinton administration, Holder had helped
oversee police department investigations,
including the filing of the suit against
the Los Angeles Police Department in
2000. To head the civil rights division,
Obama and Holder picked Perez, a former criminal prosecutor in the division
from 1988 to 1995 who had gone on
to hold political posts as deputy to the
head of the division (1998-1999) and
head of the Office of Civil Rights in the

April 6, 2012

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POLICE MISCONDUCT
Department of Health and Human Services (1999-2001). Perez drew Republican opposition because of his work
with the immigrant rights group CASA
de Maryland, but eventually won Senate confirmation on Oct. 6, 2009, by a
vote of 72-22. 30
Even before Perez took office, a
slight change of tone was seen in the
section’s report on the Yonkers, N.Y.,
police department. The June 2009 report included the same “not a mandate” language used in earlier reports,
but followed with a sentence “strongly” urging the department to adopt the
recommendations listed. A report on
the Inglewood, Calif., department issued
in December “strongly” urged adoption
of the recommended changes.
Stronger reports came in quick succession in 2011, beginning with the one
on New Orleans in March. A report on
Puerto Rico, issued on Sept. 7, found a
pattern of “unreasonable force” along with
“other misconduct” aimed at limiting free
speech rights as well as “troubling evidence” of “discriminatory policing practices” targeting persons of Dominican
descent. In releasing the report, Perez
told reporters that the section had 17
investigations under way. The investigations are “really a cornerstone of our
work,” Perez said. Three months later,
he elevated the issue further by personally attending December news conferences releasing the Seattle and Maricopa County reports. 31

CURRENT
SITUATION
Investigations Urged
ith 20 investigations already
under way, the Justice Department is being urged by citizen groups
in several other cities to look into po-

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CQ Researcher

lice departments with troubling records
of fatal shootings and other uses of
force against arrestees and suspects.
In the most recent request, the
Omahans for Justice Alliance asked the
Justice Department and U.S. Attorney
Deborah Gilg on March 13 to investigate the Omaha Police Department.
The 10-page letter cited an alleged pattern of excessive force, illegal arrests,
disregard of state law and department
polices and other misconduct.
“The kind of incidents that we’ve
had are very, very serious and appear
to get worse,” University of Nebraska professor Walker, one of three co-signers of
the letter, said at a news conference to
announce the request. Supporting organizations include the ACLU of Nebraska, Nebraskans for Peace, Black Men
United of Omaha, the NAACP’s Omaha
Branch and the Progressive Research
Institute of Nebraska. 32
In a prepared statement, Lt. Darci
Tierney, a police spokeswoman, noted
that the Justice Department had previously reviewed use-of-force incidents
as part of “normal business practices.”
She voiced no objection to scrutiny of
the additional incidents noted in the
letter. “We strive to be a transparent
agency, and if a citizen group feels
the need for the Department of Justice to review these events, we welcome the review,” Tierney said. 33
Also in March, an Albuquerque
citizens’ group stepped up its calls
for a federal investigation of the city’s
police department after two fatal
shootings in mid-March brought the
total to 18 over the past two years.
Most of those killed have been young
Hispanic men, according to Jewell
Hall, executive director of the Martin Luther King Jr. Memorial Center.
“I hope that they will do an investigation to get deep inside the Albuquerque Police Department,” says
Hall, a retired teacher.
The Albuquerque department drew
national attention with the disclosure
that the police union has had a prac-

tice for several years of giving officers
involved in fatal shootings $500 to help
them take time off to recover from
stress related to the incidents. Critics
said the payments appeared to be a
bounty for killing a suspect. Police
Chief Ray Schultz said he was unaware
of the practice. With the controversy
raging, two top officers of the Albuquerque Peace Officers Association resigned on March 27; their successors
joined Schultz and Mayor Richard Berry
on March 30 in announcing an end to
the practice. 34
Walker, who co-authored a study
of the Albuquerque police department
in 1997, says the number of deaths at
the hands of police appeared to warrant a Justice Department investigation. “That’s a lot of shootings,” he told
The Associated Press. 35
The Justice Department has acknowledged the preliminary inquiry
into the Albuquerque department but
says it has made no decision on whether
to open a formal investigation. The
Justice Department had no response
to the Omaha request in news coverage immediately afterward. Investigations are being sought in other cities,
including Las Vegas, The Associated
Press reported. Justice Department officials did not respond to a request
from CQ Researcher for a complete list
of current investigations.
In both Omaha and Albuquerque,
the groups pressing for federal investigations complained that civilians involved in police shootings or use-offorce incidents were predominantly
people of color. The Omaha group also
cited figures from a state commission
showing that black drivers are stopped
almost as often by the Omaha Police
Department as white drivers are.
Both forces are predominantly white.
In 2000, about 80 percent of the Omaha
officers were white, and the Albuquerque
department was 60 percent Anglo and
36 percent Hispanic, according to federal Bureau of Justice Statistics data. 36
Continued on p. 318

At Issue:
Is the exclusionary rule needed to deter illegal police searches?
yes

NORMAN L REIMER

WILLIAM J. FITZPATRICK

EXECUTIVE DIRECTOR, NATIONAL
ASSOCIATION OF CRIMINAL DEFENSE
LAWYERS

DISTRICT ATTORNEY,
ONONDAGA COUNTY, N.Y.
WRITTEN FOR CQ RESEARCHER, APRIL 2012

WRITTEN FOR CQ RESEARCHER, APRIL 2012

w

hile it is true that the Supreme Court has at times
over the past decade treated the exclusionary rule
with disdain, fortunately the court has not yet completely disavowed it. It is perhaps the only tool the courts have
to circumscribe police behavior that violates the Fourth Amendment. Let me give you an example.
The Supreme Court in January decided a case — U.S. v. Jones
— that is sure to be the first of many that will test the limits of
government’s ability to use modern technology to invade individual privacy. The court unanimously upheld the suppression of
GPS tracking data, rejecting the government’s sweeping claim that
it can track a person’s movements without spatial or temporal
limitation, and without a warrant or any judicial oversight.
The idea that such surveillance could occur solely at the
government’s discretion prompted Chief Justice John G. Roberts
Jr. to ask in astonishment whether, in the government’s view,
the FBI could put GPS monitors on the cars of every member
of the court. The government’s position was a resounding “yes.”
Fortunately for the future of privacy in a world in which technology now permits once unfathomable invasions of privacy,
the court’s decision was an equally resounding “no.”
How massively was this taking place before the court’s decision? During the oral argument, the deputy solicitor general
acknowledged that the federal government alone has been
using GPS devices “in the low thousands annually.” Separate
from that, state and local law enforcement authorities frequently employ GPS tracking devices — subjecting untold thousands to surveillance.
Was the court’s invocation of the exclusionary rule, a venerable remedy that will soon celebrate its 100th anniversary in
American jurisprudence, an effective tool to vindicate fundamental rights guaranteed by the Fourth Amendment? You bet it was.
Within weeks, the FBI’s general counsel, Andrew Weissmann,
said the ruling in U.S. v. Jones caused a “sea change” in law
enforcement. Following the oral argument and in anticipation of
the ruling, the FBI scrambled to ensure that the government
had warrants for 3,000 active GPS tracking devices.
After the decision, 250 of those tracking devices remained
shut down. Many may eventually be reactivated where there is
legal cause — as they should be. No doubt, states and localities are responding similarly to ensure compliance with the
dictates of the Fourth Amendment. Thus, once again, the
power of the exclusionary rule to rein in governmental abuse
is vindicated.

a

s a prosecutor for 35 years, I have never met a cop
who was deterred by a judicial opinion written five
years after he or she made a split-second decision.
The Supreme Court-crafted exclusionary rule has morphed from
its intended restraint on police misconduct into a judicially sanctioned version of roulette.
Antoine Jones, a Washington, D.C., nightclub owner, was
making money the old-fashioned way, entertaining his customers with hip-hop music and running the District’s largest cocaine distribution ring. Rather than spend countless hours legally
following Jones, police in 2005 decided to place a GPS tracking
device on his wife’s car, and even though not required, they actually got a search warrant to track the location of this vehicle.
This innovative tactic resulted in Jones’ arrest and conviction as well as the seizure of five kilos of cocaine and
$850,000 in ill-gotten drug proceeds.
Inexplicably, when the U.S. Attorney’s office authorized the
installation of the tracking device, the police did so one day
beyond the sanctioned 10-day window.
In United States v. Jones, the Supreme Court ruled — for the
first time — that the installation of a GPS device by the authorities on a suspect’s car constituted a search under the Fourth
Amendment. Thus the evidence obtained in the case was suppressed, despite the fact that, prior to the decision, the prevailing
law was murky at best. Pardon me if I’m confused as to how
this deters police misconduct. Would it not make more sense to
punish the appropriate grammar school teachers who failed to
properly train the future attorneys on how to read a calendar?
My colleagues have no problem with the GPS warrant requirement. What concerns us is the uncertainty and Draconian
response to what may be charitably called a technical error. If
we track EZ-Pass holders to locate an abducted child or trace
a terrorist by using cell-tower records, do the criminals go
free? While technology is changing rapidly, police who make
life-and-death decisions do not have the luxury of waiting for
the courts to delineate these constitutional boundaries before
they take action.
Even the learned justices in Jones had little consensus on
the grounds for the decision. Prosecutors merely want a rational
approach to evidence suppression where concepts such as
proportionality and good faith have some standing. You do
not “deter” cops with a system that is, as Justice Lewis Powell
said, “intolerably confusing.” You only confuse cops and make
the public less secure.

yes no

no

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April 6, 2012

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POLICE MISCONDUCT
Continued from p. 316

In Omaha, the citizens’ group also
is urging the city to re-establish the office of Public Safety Auditor. The office
was created in 2001, but Mayor Mike
Fahey fired Tristan Bonn from the post
in October 2006, barely a week after
she delivered a report sharply critical
of the department. The city fought Bonn’s
lawsuit to regain the position and has
failed to refill the position, according
to the citizens’ group. 37
The current mayor, Jim Suttle, says
there is no need for an auditor. “We
have a lot of faith in our police chief,”
he told an Omaha television station
in September 2011 in the midst of a
controversy over the videotaped beating and kicking of a suspect in police custody. 38
In Albuquerque, an officer involved
in a November 2009 shooting was fired
the next year after the department’s internal affairs unit and the Independent
Review Officer found the shooting unjustified. Schultz said he fired Brandon
Carr because the officer lied to investigators about the events.
The city paid the victim’s family
$950,000 to settle a civil suit, but on
March 30 the district attorney’s office
announced no criminal charges would
be brought against Carr. Out of 29 police shootings since 2009, eight are
awaiting grand jury action, but no
criminal charges have been brought in
the other 21, according to the Albuquerque Journal. 39

Reforms Outlined
he Seattle Police Department is
preparing to adopt a 20-point reform plan aimed at answering criticisms
from citizens’ groups and the Justice Department and perhaps avoiding federal
court supervision for several years.
The plan, released by Mayor McGinn
on March 29, includes steps to revamp
use-of-force policies, strengthen the role
of a newly established Force Review

T

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CQ Researcher

Board, collect data on possible racial
profiling and improve diversity training.
In one specific change, the plan responds to criticism of how police dealt
with Occupy Seattle protesters in November by prohibiting the use of pepper spray except in self-defense or as
“a last resort.”
Seattle and Justice Department officials met behind closed doors the next
day to discuss the plan. Seattle officials
appeared to hope the department would
back away from insisting that the city
agree to a court order giving a federal judge supervisory authority over the
plan’s implementation for a specified
number of years. 40
Progress on a reform plan in Seattle came after negotiations between
the Justice Department and New Orleans officials had stalled because of
a bizarre incident involving the federal government’s point person in the
talks. Sal Perriccone withdrew from
the talks and then resigned from the
U.S. Attorney’s office in New Orleans
in March after he acknowledged having used a pseudonym to post hundreds of online comments about law
enforcement-related stories on the
Times-Picayune’s website, nola.com. 41
Two of the major groups involved in
requesting the Justice Department investigation of the Seattle Police Department reacted approvingly to what McGinn
called the 20/20 plan — 20 steps to be
put into effect over 20 months. Estela
Ortega, executive director of the Hispanic advocacy group El Centro de la
Raza, appeared at the news conference
with McGinn and Chief John Diaz and
praised their willingness to work with
community leaders on the plan.
In a brief statement, Kathleen Taylor,
executive director of ACLU of Washington State, said the civil rights organization was “encouraged” by the plan. But
she said a court-supervised consent decree “is critical to ensure that reforms
are thoroughly implemented and are
sustained for the long term.”
The plan’s use-of-force provisions call

for developing “updated, clear policies”
on the use of “lethal, less-lethal and
non-lethal tools available to officers.”
Officers would be trained annually on
the policies and on “de-escalation” of
“low-level encounters.” Sergeants and
commanders are also to be given annual training on how to investigate and
document use-of-force incidents.
Seattle’s Force Review Board, established after the release of the Justice Department report in December,
would be given a formal role. Some
form of civilian review of the board’s
work would be instituted.
Issues of “biased policing” are to
be addressed by streamlining race-data
collection related to traffic stops and
initiating the collection of race data
for pedestrian encounters. The University of Washington’s African-American Studies Department is to be engaged to review the department’s
practices as related to the issue.
In New Orleans, Perricone took himself out of the federal-local negotiations
on March 16 after his role as pseudonymous online commentator came to
light. Mayor Landrieu said Perricone’s participation had “poisoned” the negotiations,
but U.S. Attorney Jim Letten insisted the
removal would not cause a delay.
ACLU official Esman says the ongoing talks are “very guarded,” but she
expects eventual agreement on a courtsupervised consent decree. “Something will come of it,” Esman says.
“Whether it will be enough, whether
it will work is anybody’s guess.”
Meanwhile, another of the police
forces sharply criticized in Justice Department reports last year got new
leadership in late March in a move
that may ease the way for reforms.
Puerto Rico Gov. Luis Fortuño named
former FBI official Hector Pesquera as
superintendent of the commonwealth’s
17,000-person police department on
March 29 following the resignation of
Emilio Díaz Cólon from the post.
Díaz had been superintendent for
only three months when the Justice

Department report was released in September. He responded by denying any
constitutional violations by the force.
Over the next six months, Díaz was
criticized for failing to offer an anticrime program. Fortuño quoted Díaz
as saying he was resigning to avoid
hurting prospective reforms. 42

OUTLOOK
Police Under Pressure
opular trends in law enforcement
push police departments in opposite directions. Police departments
use high-tech tools to surveil suspects,
crack down on drugs and try to spot
terrorists, even as officers are being
urged to get out of their cars, walk
the streets and engage the public in
“community policing.” 43
Along with these competing visions
of good policing come financial pressures as fiscally strapped local governments cut back on police departments’ staffing, pay and services. In
Detroit, police precincts are open only
during daytime hours, and nonemergency reports have to be made
through a central call center. To save
$80 million in 2011, the Los Angeles
City Council cut overtime pay for cops,
but the department still had to find
$41 million more in savings. And police departments around the country
have been dealing with layoffs by taking reports on many property crimes
over the phone instead of sending officers to investigate. 44
The financial pressures lead police
consultant Scott to worry about cutbacks in the training needed to ensure that officers live up to professional standards. “Law enforcement is
not training its personnel the way it
should,” the former police chief says.
“This is where I see many, many law-

P

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suits that could be avoided if we as
a public demanded to have better
trained police officers.”
Police accountability is being enhanced, however, by new technology,
such as the video cameras now installed on many police cars to record
officer-suspect encounters. “The way
to encourage police reform and police accountability is [with] sunlight,”
says University of Baltimore professor
Kane, “making these practices known
to the public.”
Technology at the same time increases the potential for police abuse of
individual privacy and safety. Civil liberties groups complain that local police
now are using cell phone tracking routinely and aggressively, often without
much judicial oversight. Tasers, once seen
as a non-lethal alternative to firearms for
subduing suspects, are linked by the
human rights group Amnesty International to hundreds of deaths of suspects
— a risk that the manufacturer acknowledges but calls exaggerated. 45
The high-power, high-tech weaponry provided to SWAT teams, especially for drug raids, is viewed disapprovingly, even by police-friendly
experts. “In some cases, you’ve got
this hypercoercion being used in situations that don’t require this kind of
force,” Kane says. “It’s almost like a
toy that needs to be played with.”
Even without high-power weaponry, the risk of unnecessary and excessive force, sometimes lethal, persists in
police-civilian encounters. Review procedures in place, as in Albuquerque,
often find officers’ conduct justifiable,
even as outside groups and victims’
families disagree. But national police organizations appear to devote little attention to the subject. In assuming the
presidency of the International Association of Chiefs of Police in November
2011, Quincy, Fla., Police Chief Walter
McNeil said the group’s highest priority would be “to continue a comprehensive violence-against-police-officers
reduction strategy.” McNeil did not ad-

dress the issue of excessive force
against civilians, nor has he mentioned
the issue in his monthly column in the
association’s magazine despite the spate
of critical Justice Department reports in
December. 46
Walker, the veteran of police accountability issues, worries that the
post-9/11 emphasis on homeland security has been a setback for best police practices. “Your primary focus is
not community policing, which tells
you that the major things we have to
do is work with people in the community,” he says. And he worries about
the impact of budget-imposed layoffs.
“If the economy worsens,” Walker says,
“things could be very, very worse.”
Still, Walker believes that excessive
force and racial profiling are not intractable
problems. “If these problems are persisting, it’s just because [police leaders]
are not paying attention,” Walker says.
“We have a much clearer picture of possible things we can do. It’s just finding
the will do to do them.”

Notes
1

Account drawn primarily from coverage by
Brendan McCarthy in The Times-Picayune
(New Orleans): “Raid details show focus on
weed,” March 10, 2012, p. A1; “Man killed by
cops was not armed,” March 9, 2012, p. A1.
Some other information drawn from other TimesPicayune articles, most of them by McCarthy.
2 Johnson, Shorty quoted in McCarthy, ibid.,
March 10.
3 The New Orleans report is available on the
Justice Department’s website: www.justice.
gov/crt/about/spl/nopd.php. A complete list
of Special Litigation Section cases and matters,
including “Conduct of Law Enforcement Agencies Investigations” and “Conduct of Law Enforcement Agencies Complaints,” is found here:
www.justice.gov/crt/about/spl/findsettle.php.
4 Diaz quoted in Mike Carter, Steve Miletich,
and Jennifer Sullivan, “City faces possibility of
court intervention,” The Seattle Times, Dec. 17,
2011, p. A1; Gallo’s retirement reported in Denise
Buffa and Josh Kovner, “Chief Steps Down,”
Hartford Courant (Conn.), Jan. 31, 2012, p. A1;

April 6, 2012

319

POLICE MISCONDUCT
Quoted in J. J. Hensley, “Negotiations between
MCSO, DOJ fall apart,” The Arizona Republic
(Phoenix), April 4, 2012, p. A1.
5 For previous coverage, see these CQ Researcher reports: Kenneth Jost, “Policing the
Police,” March 17, 2000, pp. 209-240; Sarah
Glazer, “Police Corruption,” Nov. 24, 1995, pp.
1041-1064; Richard L. Worsnop, “Police Brutality,” Sept. 6, 1991, pp. 633-656; and earlier reports in CQ Researcher-plus Archives.
6 See Brendan McCarthy and Laura Maggi,
“NOPD deeply defective, report says,” The
Times-Picayune, March 18, 2011, p. A1; Brendan McCarthy, “Reforms in place, Serpas
says,” ibid., March 24, 2011, p. B1. See also
Laura Maggi, “ ‘Clear pattern’ of excessive
force cited,” ibid., March 18, 2011, p. A14.
7 See Brendan McCarthy, “Judge imposes stiff
sentences on 5 NOPD officers convicted in
Danziger shootings,” nola.com, April 4, 2012,
www.nola.com/crime/index.ssf/2012/04/judge_
imposes_sentences_on_5_n.html. The defendants and their sentences are Robert Faulcon
Jr., 65 years; Kenneth Bowen, 40 years; Robert
Gisevius Jr., 40 years; Anthony Villavaso II,
38 years; Arthur “Archie” Kaufman, six years.
For an overview of the case in advance of
the trial, see Brendan McCarthy and Laura
Maggi, “Federal prosecutors allege civil rights
abuses,” The Times-Picayune, June 19, 2011,
A1; for a post-verdict account, see Katie Urbaszewski and Brendan McCarthy, “Danziger
evidence outweighed chaos theory,” ibid.,
Aug. 23, 2011, p. A1.
8 “Taking Stock: Report from the 2010 Roundtable on the State and Local Law Enforcement Police Pattern or Practice Program (42
USC § 14141),” National Institute of Justice,
September 2011, https://ncjrs.gov/pdffiles1/nij/
234458.pdf.
9 Quoted in Jerry Markon, “Justice Dept. is
policing the police,” The Washington Post,
Sept. 18, 2011, p. A3.

10 See “Highlights of AP’s probe into NYPD
intelligence operations,” http://ap.org/mediacenter/nypd/investigation.
11 See “Investigation of the Seattle Police Department,” U.S. Department of Justice, Civil
Rights Division/U.S. Attorney’s Office, Western
District, Washington, Dec. 16, 2011, www.jus
tice.gov/crt/about/spl/documents/spd_find
letter_12-16-11.pdf. The letter requesting the
investigation is on the ACLU’s website: www.
aclu-wa.org/re-request-investigate-pattern-orpractice-misconduct-seattle-police-department.
For initial coverage of Williams’ death, see Sara
Jean Green and Steve Miletich, “Police have
questions about shooting by cop,” The Seattle
Times, Sept. 1, 2010, p. A1.
12 “Police Use of Force in America,” International Association of Chiefs of Police, 2001,
www.theiacp.org/Portals/0/pdfs/Publications/
2001useofforce.pdf; “Police Use of Force,” National Institute of Justice, www.nij.gov/topics/
law-enforcement/officer-safety/use-of-force/
welcome.htm#note2 (modified January 2012).
13 The decisions are Tennessee v. Garner, 471
U.S. 1 (1985); Graham v. Connor, 490 U.S. 386
(1989).
14 William Terrill, Eugene A. Paoline III and
Jason Ingram, “Final Technical Report Draft:
Assessing Police Use of Force Policy and Outcomes,” National Institute of Justice, February
2012, p. 159, www.ncjrs.gov/pdffiles1/nij/grants/
237794.pdf.
15 Matthew Kauffman, “In Traffic Stops, Police Tougher on Blacks, Hispanics,” Hartford
Courant (Connecticut), Feb. 26, 2012, p. A1.
16 New Orleans data cited in Kenneth Jost,
“ ‘Black on Black’ Racial Profiling: Why?” Jost
on Justice (blog), March 11, 2011; Justice Department findings on Maricopa County, www.
justice.gov/crt/about/spl/mcso.php; East Haven;
and www.justice.gov/crt/about/spl/documents/
easthaven_findletter_12-19-11.pdf.
17 Figures from the New York Civil Liberties

About the Author
Associate Editor Kenneth Jost graduated from Harvard
College and Georgetown University Law Center. He is the
author of the Supreme Court Yearbook and editor of The
Supreme Court from A to Z (both CQ Press). He was a member of the CQ Researcher team that won the American Bar
Association’s 2002 Silver Gavel Award. His previous reports
include “Eyewitness Testimony” and “Prosecutors and the
Law.” He is also author of the blog Jost on Justice (http://
jostonjustice.blogspot.com).

320

CQ Researcher

Union cited in Sean Gardiner, “Stop-andFrisks Hit Record in 2011,” The Wall Street
Journal, Feb. 14, 2012, p. A21.
18 Gitta Laasby, “Flynn addresses inquiry into
strip searches,” Journal Sentinel (Milwaukee),
March 23, 2012, p. B1. Background on Mucha
drawn from past coverage by Gina Barton:
“Gun Case Falls Apart With Cop’s Testimony,” ibid., Aug. 8, 2010, p. A1; “Forceful Impact: Suspects have accused Sgt. Jason Mucha
10 times of beating them or planting drugs.
He wasn’t disciplined, but courts took notice,” ibid., Sept. 29, 2007, p. A1.
19 Anthony Cormier and Matthew Doig, “Unfit
for Duty,” Herald-Tribune (Sarasota, Fla.), December 2011 (nine parts), http://cops.htcrea
tive.com/; Gina Barton, “At least 93 Milwaukee police officers have been disciplined for
violating the law,” Journal Sentinel, Oct. 23,
2011 (1st of 3 parts), www.jsonline.com/watch
dog/watchdogreports/at-least-93-milwaukeepolice-officers-have-been-disciplined-for-vio
lating-law-132268408.html.
20 Background drawn in part from Samuel
Walker and Charles M. Katz, Police in America: An Introduction (5th ed., 2005), chapter 2
(pp. 23-58). The sixth edition (2011) was not
available for use before deadline.
21 Ibid., pp. 33-34.
22 The major cases are Brown v. Mississippi,
297 U.S. 278 (1936); Miranda v. Arizona, 384
U.S. 436 (1966); Mapp v. Ohio, 367 U.S. 463
(1960). For background, see David G. Savage,
Guide to the U.S. Supreme Court (5th ed., 2011),
pp. 740-748 (confessions), 725-726 (exclusionary rule).
23 For an official assessment, see “LEAA/OJP
Retrospective: 30 Years of Federal Support
for State and Local Criminal Justice,” U.S. Department of Justice, Office of Justice Programs, July 11, 1996, p. 3, www.ncjrs.gov/pdf
files1/nij/164509.pdf.
24 For background, see Glazer, op. cit.; Peter
Maas, Serpico (1973), and the cinemazation
of the same title, also 1973, with Al Pacino
in the title role.
25 “14th Annual Report,” City of New York
Commission to Combat Police Corruption,
February 2012, www.nyc.gov/html/ccpc/down
loads/pdf/14th_annual_report.pdf.
26 See Tina Daunt and Jim Newton, “City OKs
Police Reform Pact With U.S.,” Los Angeles
Times, Nov. 3, 2000.
27 See Ryan J. Reilly, “Report Delivers Hard
Numbers on Bush Civil Rights Division,” Main
Justice, Dec. 7, 2009, www.mainjustice.com/
2009/12/07/report-delivers-hard-numbers-on-

bush-civil-rights-division/.
28 See David A. Fahrenthold, “U.S. Faults D.C.
Police Use of Force in the ’90s,” The Washington Post, June 14, 2001, p. B1; “Findings
Letter re Use of Force by the Washington
Metropolitan Police Department,” U.S. Department of Justice, June 13, 2001, www.jus
tice.gov/crt/about/spl/documents/dcfindings.
php; M.L. Erlick and Ben Schmitt, “U.S. Demand to Detroit: Stop Police Abuses Now,”
Detroit Free-Press, June 13, 2003; “Investigation of the Detroit Police Department” (technical assistance letters, 2002), U.S. Department of Justice, www.justice.gov/crt/about/spl/
documents/dpd/detroit_cover.php; Jamie
Stockwell and Ruben Castaneda, “Pr. George’s
Agrees to Curb Excessive Force by Police,” The
Washington Post, Jan. 23, 2004, p. A1; U.S.
Department of Justice, “Investigation of the
Prince George’s County Police Department,”
Jan. 22, 2004, www.justice.gov/crt/about/spl/
documents/pgpd/pgpd_cover.php.
29 “Investigation of the Orange County Sheriff’s Office Use of Conducted Energy Devices,”
U.S. Department of Justice, Aug. 20, 2008,
www.justice.gov/crt/about/spl/documents/
orangecty_ta_ltr.pd.
30 Andrew Ramonas, “Senate Confirms Tom
Perez,” Main Justice, Oct. 6, 2009, www.main
justice.com/2009/10/06/senate-confirms-tomperez/. For a profile, see Jerry Zremski, “Former area man takes top civil rights post,”
Buffalo News, Nov. 14, 2009, p. A1.
31 Perez quoted in Markon, op. cit.
32 Quoted in Sarah Te Slaa, “Group Calls for
Federal Investigation Into Police Department,”
KMTV (Omaha), March 13, 2012, www.kmtv.
com/news/local/142578935.html. See also
Roseann Moring, “Groups seek federal probe
of Omaha police,” Omaha World-Herald,
March 14, 2012.
33 The statement is cited in full in “Police Respond to Complaint,” WOWT, March 13, 2012,
www.wowt.com/home/headlines/Police_Res
pond_to_Complaint_142541525.html?storySec
tion=story.
34 See Jeff Proctor, “Cop Payments to Stop,”
Albuquerque Journal, March 30, 2012, p. A1;
and earlier coverage by same reporter. For
national coverage, see Manny Fernandez and
Dan Frosch, “Payments to Albuquerque Officers Are Called a ‘Bounty System,’ ” The
New York Times, March 25, 2012, p. A20.
35 See Russell Contreras, “Albuquerque activists seek federal probe of police,” The Associated Press, March 27, 2012. Some other
background drawn from article.

www.cqresearcher.com

FOR MORE INFORMATION
American Civil Liberties Union, 125 Broad St., New York, NY 10004; 212-549-2500;
www.aclu.org. Has been active on racial profiling, use of force and other policepractices issues.
Fraternal Order of Police, Grand Lodge, 1410 Donelson Pike, A-17, Nashville, TN
37217; 615-399-0900; www.grandlodgefop.org. Largest membership organization representing rank-and-file law enforcement officers.
International Association of Chiefs of Police, 515 North Washington St., Alexandria, VA 22314; 703-836-6767; www.theiacp.org. Represents operating chief executives
of international, federal, state and local law enforcement agencies of all sizes.
National Association of Civilian Oversight of Law Enforcement, 638 E. Vermont St., P.O. Box 1737, Indianapolis, IN 46206; 1-866-462-2653; www.nacole.org.
Brings together individuals and agencies working to establish or improve oversight
of police officers in the United States.
National Association of Criminal Defense Lawyers, 1025 Connecticut Ave., N.W.,
Suite 901, Washington, DC 20036; 202-872-8600; www.crimdefense.org. The largest
organization exclusively representing criminal defense lawyers.
National District Attorneys Association, 44 Canal Center Plaza, Suite 110, Alexandria, VA 22314; 703-549-9222; www.ndaa.org. Represents criminal prosecutors in state,
district, county and city attorneys’ offices.
National Sheriffs’ Association, 1450 Duke St., Alexandria, VA 22314; 1-800-4247827; www.sheriffs.org. Represents and assists sheriffs’ offices nationwide through
education, training and information resources.
Police Foundation, 1201 Connecticut Ave., N.W., Washington, DC 20036-2636;
202-833-1460; www.policefoundation.org. Established by the Ford Foundation in
1970; sponsors research to support innovation and improvement in policing.
36

See “Law Enforcement Management and
Administrative Statistics, 2000,” Bureau of Justice Statistics, April 2004, pp. 31, 32, http://bjs.
ojp.usdoj.gov/content/pub/pdf/lema001a.pdf.
37 See Lynn Safranek, “Future of police auditor post under review,” Omaha World-Herald,
Oct. 31, 2006, p. 1B.
38 Liz Dorland, “Ernie Chambers Requests
Federal Investigation Into Omaha Police Department,” KMTV, Sept. 7, 2011, www.kmtv.com/
news/local/129429963.html.
39 Jeff Proctor, “Fired Cop Cleared in Death
of Vet,” Albuquerque Journal, March 30, 2012,
p. 41.
40 See “SPD 20/20: A Vision for the Future,”
City of Seattle, www.seattle.gov/mayor/media/
PDF/SPD2020.pdf. For coverage, see Mike
Carter, “Seattle mayor announces broad initiative to improve police force,” The Seattle
Times, March 29, 2012; Sara Jean Green,
“Mayor’s initiatives seem to address complaints
of biased policing,” ibid.
41 See Michelle Krupa and Gordon Russell,
“Prosecutor bows out of NOPD talks,” The
Times-Picayune, March 17, 2012, p. A9.

42

“Former FBI director named Puerto Rico
police chief,” The Associated Press, March 29,
2012.
43 For background, see Richard L. Worsnop,
“Community Policing,” CQ Researcher, Feb. 5,
1993, pp. 97-120.
44 See Joe Rossiter, “Godbee: Virtual police
precinct plan to go into effect Monday,” Detroit Free Press, Jan. 31, 2012, p. A7; Kate
Linthicum, “L.A. council cuts millions from budget,” Los Angeles Times, May 19, 2011, p. AA1;
Kevin Johnson, “Home burglarized? Fill out a
form,” USA Today, Aug. 25, 2010, p. 1A.
45 On use of cell phone tracking, see Eric
Lichtblau, “Police Are Using Phone Tracking
as Routine Tool,” The New York Times, April 1,
2012, p. A1; on Tasers, see CBS News, “Taser:
An officer’s weapon of choice,” 60 Minutes (David
Martin, correspondent; Mary Walsh, producer),
Nov. 13, 2011, www.cbsnews.com/8301-18560_
162-57323531/taser-an-officers-weapon-of-choice/.
46 See Walter A. McNeil, “The Year Ahead,”
Police Chief, November 2011, www.policechief
magazine.org/magazine/index.cfm?fuseaction=
display_arch&article_id=2519&issue_id=112011.

April 6, 2012

321

Bibliography
Selected Sources
Books
Delattre, Edwin J., Characters and Cops: Ethics in Policing (6th ed.), AEI Press, 2011.
A professor of philosophy, emeritus, at Boston University
and an adjunct scholar at the American Enterprise Institute
combines two decades of studying police behavior to examine a full range of ethics issues for law enforcement. Includes detailed notes, short bibliography.

see Police Accountability: The Role of Citizen Oversight
(Thomson Learning, 2001). Walker maintains an informative
website on police accountability issues, including a page covering developments in New Orleans (http://samuelwalker.net/).
His other books include Popular Justice: A History of American Criminal Justice (2d ed.) (Oxford University Press, 1998);
and A Critical History of Police Reform: The Emergence of
Professionalism (Lexington, 1977).

Articles
Kane, Robert J., and Michael D. White, Jammed Up: Bad
Cops, Police Misconduct, and the New York City Police
Department, New York University Press, 2012 (forthcoming: Nov. 19).
The book examines the causes of — and responses to
— alleged police misconduct based on unprecedented,
complete access to the confidential files of more than 1,500
New York Police Department officers over a 20-year period. Includes detailed notes, bibliography. Kane is an associate professor at the University of Baltimore’s School of
Criminal Justice, White an associate professor at Arizona
State University’s School of Criminology and Criminal Justice. For an earlier article on their findings, see Robert J.
Kane and Michael D. White, “Bad Cops: A study of careerending misconduct among New York City police officers,”
Criminology and Public Policy, Vol. 8, No. 4 (November
2009), pp. 737-769. The issue includes three other policy
essays on police misconduct.
Roberg, Roy, Kenneth Novak, and Gary Cordner, Police
& Society (3d ed.), Roxbury Publishing, 2005.
The college textbook includes lengthy chapters on “Behavior and Misconduct,” “Force and Coercion” and “Accountability and Ethics.” Each chapter includes notes, suggested websites for further study. The book also comes with
an interactive student study guide. The authors are professors, respectively, at San Jose State University, University of
Missouri-Kansas City and Eastern Kentucky University.
Walker, Samuel, and Charles M. Katz, Police in America:
An Introduction (6th ed.), McGraw-Hill, 2011.
The college textbook includes overviews of the history and
current structure of U.S. law enforcement and individual
chapters on police corruption and accountability, plus chapter notes, a glossary and an interactive student study guide.
Walker is a professor of criminal justice, emeritus, at the University of Nebraska-Omaha and a longtime expert on police
issues; Katz is an associate professor at Arizona State University’s School of Criminology and Criminal Justice.
Walker, Samuel, The New World of Police Accountability,
SAGE, 2005.
The book synthesizes major developments in police accountability over the previous decade. For an earlier account,

322

CQ Researcher

Kocher, Charles, et al., “Sustaining Police Operations at
an Efficient and Effective Level under Difficult Economic
Times,” Police Chief, March 2012, www.policechiefmaga
zine.org/magazine/index.cfm?fuseaction=display&article_id=
2621&issue_id=32012.
The article, co-authored by a retired deputy Camden, N.J.,
police chief, in the monthly magazine of the International
Association of Chiefs of Police examines the need for adapting police department structures and operations in times of
layoffs, cutbacks and consolidated services.
Reynolds, Dawn, “Coast to Coast — the Public and the
Justice Department is Demanding More Accountability,”
National Association of Civilian Oversight of Law Enforcement, spring 2012, www.nacole.org/sites/default/
files/NACOLE_Review_Spring2012.pdf.
The article in the association’s quarterly newsletter reviews
the Justice Department’s reports on Seattle; Maricopa County, Ariz., and East Haven, Conn.

Reports and Studies
“Taking Stock: Report from the 2010 Roundtable on the
State and Local Law Enforcement Police Pattern or Practice Program (42 USC § 14141),” National Institute of
Justice, September 2011, https://ncjrs.gov/pdffiles1/nij/
234458.pdf.
The report includes a 10-page summary of the views expressed at a roundtable convened to assess the impact of
the Justice Department’s pattern or practice of police misconduct program. The report includes notes, a list of all
participants and a list of settlements and investigations as
of July 2010.
Weisburd, David, Rosann Greenspan, Edwin E. Hamilton, Kellie A. Bryant and Hubert Williams, “The Abuse
of Police Authority: A National Study of Police Officers’
Attitudes,” Police Foundation, 2001, www.policefoundation.org/pdf/AOANarrative.pdf.
The first-ever national survey of police officers’ attitudes
found that most believe extreme abuse-of-authority cases are
infrequent and that the public and the media are too concerned with such incidents.

The Next Step:
Additional Articles from Current Periodicals
Excessive Force
McCoppin, Robert, and Dan Hinkel, “Many Complaints,
Little Discipline,” Chicago Tribune, Feb. 10, 2012, p. A1,
articles.chicagotribune.com/2012-02-10/news/ct-met-northchicago-brutality-20120210_1_excessive-force-jack-frostpolice-misconduct/2.
Excessive-force cases against North Chicago police have
steadily increased, but not many officers have been disciplined.
McGhee, Tom, “Spike in Cops’ Lawsuit Payouts,” Denver
Post, Jan. 13, 2012, p. B1, www.denverpost.com/breaking
news/ci_19730217.
Denver paid $1.34 million in 2011 to settle lawsuits alleging that city police officers engaged in excessive force.
Walter, Donna, “8th Circuit: Minor Injuries Can Come From
Excessive Force,” Missouri Lawyers Media, June 6, 2011.
Plaintiffs do not have to sustain major injuries in order to
prove the use of excessive force by police, according to a
U.S. appeals court ruling.

Discipline
Coe, Jackee, “Interim Chief Earns Praise for Tougher
Policies,” Arizona Republic, Aug. 10, 2011, p. 3, www.az
central.com/community/swvalley/articles/2011/08/10/
20110810goodyear-interim-chief-earns-praise-improvingdepartment.html.
The interim police chief of Goodyear, Ariz., has been praised
for establishing a consistent professional-standards policy outlining misconduct violations and disciplinary measures.
Furst, Randy, “Dolan Panned on Cop Discipline,” Star
Tribune (Minneapolis), Dec. 20, 2011, p. B1, www.startribune.com/local/minneapolis/135898668.html.
The Minneapolis Civilian Review Authority says it has “no
confidence” that the city’s police chief would discipline officers who engage in misconduct.
Grossman, Daniel J., “Atlanta Officers Escape Discipline,”
Atlanta Journal-Constitution, May 13, 2011, p. A19, www.
ajc.com/opinion/atlanta-officers-escape-discipline-9442
21.html.
The failure of the Atlanta Police Department to discipline
its officers for misconduct exposes the city to direct financial liability, says a civil rights attorney.
Klein, Robert L., “Police Must Be Accountable to the
People,” Hartford (Conn.) Courant, May 1, 2011, p. C1,
articles.courant.com/2011-05-01/news/hc-op-klein-poicebrutality-misconduc20110501_1_police-officers-policemisconduct-police-force.
Connecticut needs an agency to hear complaints of police

www.cqresearcher.com

misconduct and to discipline officers accordingly, says a former state assistant attorney general.

Profiling
Hanna, Bill, “Fort Worth Councilman Says Report Suggests
Appearance of Racial Profiling,” Fort Worth (Texas) StarTelegram, May 25, 2011, www.star-telegram.com/2011/
05/24/3101314/fort-worth-councilman-says-report.html.
A Fort Worth, Texas, council member has asked the city’s
police chief to provide more data justifying the arrests of
alleged victims of racial profiling.
Pinkerton, James, “A Trend Not in Decline: More Blacks
Pulled Over,” Houston Chronicle, May 9, 2011, p. A1, www.
chron.com/cars/article/More-black-motorists-pulled-overaccording-to-1691304.php.
Houston police say race plays no part in traffic stops, but
black residents continue to be pulled over more often than
any other racial group.
Rubin, Joel, “Latinos Targeted in Traffic Stops By LAPD
Officer,” Los Angeles Times, March 27, 2012, p. A1, www.
latimes.com/news/local/la-me-lapd-racial-profile-201203
26,0,6544493.story.
An inquiry by the Los Angeles Police Department concluded that one of its officers targeted Latinos for traffic stops.
Vock, Daniel C., “Racial Profiling Data Often Unstudied,” The Washington Post, Aug. 9, 2011, p. A13.
Illinois state police hardly ever study racial profiling information, says the state chapter of the American Civil Liberties Union.

CITING CQ RESEARCHER
Sample formats for citing these reports in a bibliography
include the ones listed below. Preferred styles and formats
vary, so please check with your instructor or professor.

MLA STYLE
Jost, Kenneth. “Remembering 9/11,” CQ Researcher 2 Sept.
2011: 701-732.

APA STYLE
Jost, K. (2011, September 2). Remembering 9/11. CQ Researcher, 9, 701-732.

CHICAGO STYLE
Jost, Kenneth. “Remembering 9/11.” CQ Researcher, September
2, 2011, 701-732.

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