SECTION 6 – U.S. LAW AND POLICE PRACTICES DO NOT COMPLY WITH INTERNATIONAL HUMAN RIGHTS LAW AND STANDARDS GOVERNING THE USE OF FORCE

 

  1. The Commission finds that neither domestic law nor police practices comply with the obligations of the U.S. under International Human Rights Law and standards governing the use of force. U.S. law is woefully inadequate in protecting people of African descent from police violence. The U.S. does not have a national legal framework governing the use of force. Moreover, the U.S. Supreme Court has set few limits on the use of force by law enforcement officials[1] and the limits that have been set do not meet international standards. The U.S. Congress has not filled the gap.

 

  1. As discussed in the introduction to Section 5, the U.S. has ratified three critical human rights treaties that set forth International Human Rights Law standards relevant to policing and the use of force. They are the International Covenant on Civil and Political Rights (ICCPR); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT); and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). The provisions of these treaties that the U.S. has ratified are part of U.S. law under the Supremacy Clause of the U.S. Constitution.[2]

 

  1. United Nations bodies have taken the rights and freedoms enshrined in the above treaties and developed instruments codifying these rights in the context of law enforcement. These instruments are the Code of Conduct and the UN Basic Principles.[3] The core principles in the provisions of these instruments are legality, necessity, proportionality, and accountability.

 

  1. The UN Basic Principles were adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, in September 1990. These principles recognize that law enforcement officials have a vital role in the protection of the right to life, liberty, and security of the person, as guaranteed in the Universal Declaration of Human Rights[4]and reaffirmed in the International Covenant on Civil and Political Right The UN Basic Principles affirm that law enforcement officers may use force only when strictly necessary and to the extent required for the lawful performance of their duty, and may not use firearms except in self-defense or defense of third parties against imminent threat of death or serious bodily harm. The UN Basic Principles builds on the Code of Conduct and sets out the requirements for the lawful use of force by law enforcement officials. These include requirements mandating that the force used must be lawful, strictly necessary, proportionate to both the threat and the legitimate objective, and directed towards respecting and preserving human life (Articles 4 and 5). Firearms may only be used when necessary as the only means to prevent imminent death or serious injury, and then only after a clear warning of the intent to use a firearm with time for the warming to be observed. As discussed below, U.S. laws and practices do not comply with any of the UN Basic Principles.
  2. S. Law and Police Practices also violate International Human Rights Laws and standards on the prohibition of torture and other cruel, inhuman, or degrading treatment or punishment enshrined in the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights.

 

NON-COMPLIANCE OF U.S. LAW WITH BASIC PRINCIPLES ON THE USE OF FORCE

 

Legal Basis

 

  1. The UN Basic Principles require that U.S. law, policy, and police practices comply with international human rights law and standards.[5] The Commissioners found that the U.S. laws and police practices regarding police use of force in the cases they heard were not rooted in and did not comply with international law and standards.

 

  1. “All [U.S.] state laws fail to meet international law and standards,” a 2015 report[6] by Amnesty International concluded. A 2020 University of Chicago Law School report[7] on police use of lethal force in the U.S. evaluated police policies in the 20 largest U.S. cities during 2017 and 2018. It found not a single city in compliance with international law and standards. U.S. law and practices regarding police use of force do not fulfill the international requirement of legality.

 

Legitimate Objective

 

  1. Under international law and standards in relation to police use of force, lethal force can only be used when necessary as the only means to prevent imminent death or serious injury, and then only after a clear warning of the intent to use a firearm with time for the warming to be observed. As observed by the UN Special Rapporteur on extrajudicial, summary, or arbitrary executions Christof Heyns, “Rights may be limited – and force may likewise by used – only in the pursuit of a legitimate objective….the only objective that can be legitimate when lethal force is used is to save the life of a person or protect a person from serious injury.”[8]

 

  1. S. law and police use of force standards allow the use of lethal force for reasons other than necessity to prevent imminent death or serious injury. None of the cases heard by the Commissioners presented a scenario in which lethal force was deployed to prevent a reasonably perceived threat of imminent death or serious injury. Indeed, none of the cases presented involved a threat to the life of an officer or another by the victim. In the cases heard by the Commissioners, all victims were unarmed or non-threatening. In no case was there a legitimate objective under international law for the lethal use of force or firearms.
  2. In 1985, the U.S. Supreme Court held in Tennessee v Garner[9] that the use of deadly force to prevent the escape of all individuals suspected of committing a felony, regardless of the circumstances, violates the Fourth Amendment[10] to the U.S. Constitution. The Court, however, ruled that deadly force can be used to prevent the escape of an apparently unarmed, non-dangerous fleeing suspect if the officer has probable cause to believe the suspect poses a significant threat of death or serious physical injury to the officer or others. If the suspect threatens the officer with a weapon or there is probable cause to believe that the suspect has committed a crime involving the infliction or threatened infliction of serious physical harm, the officer may use deadly force if necessary to prevent escape, and if, where feasible, warning has been given. Thus, U.S. law allows the use of deadly force to prevent escape if there is probable cause to believe that a crime involving serious injury has already occurred. U.S. law and practice standards are remarkably different from international law and standards and do not comply with the requirement of legitimate objective.

 

Necessity

 

  1. Law enforcement officers must employ non-violent means before using force and firearms. They may only utilize force if other means are ineffective and the use of force is unavoidable (i.e., a last resort). Force can only be employed in response to an imminent or immediate threat (occurring in seconds, not hours). One can only use the amount of force that is necessary, and no more than necessary, to achieve the objective[11] Officers must identify themselves and give clear warning of the intention to use lethal force with time for individuals to hear and respond to the warning, unless such warning would place the officer or others at risk of death or serious harm, or would clearly be pointless or inappropriate.[12]

 

  1. In none of the cases heard by the Commissioners was there a plausible need for the officer to defend against imminent death or serious injury to the present officer(s) or others at the scene. Similarly, there was no case heard by the Commissioners in which it appeared that lethal force was used only as a last resort and only in the face of an imminent threat. The evidence provided to the Commissioners establishes that lethal force was used indiscriminately as a first means of response without assessment, warning, or attempts to use non-lethal means.  Indeed, in examining the use of force against Black people, the Commissioners found “police disproportionately used excessive force against Black people, all of whom were unarmed or non-threatening. Individuals were shot in the back, killed with their hands up, killed while restrained with chokeholds and Tasers, and killed with military-type weapons. In many cases, Black people were killed using multiple techniques and a number of them were killed by several officers.” Such factual findings demonstrate the absence of necessity.

 

  1. Though law enforcement practices and protocols in the U.S. are decentralized through various state and local laws, none of the state laws provide that lethal force may only be used as a last resort when necessary to prevent imminent death or serious injury with less harmful and non-violent means to be tried first. No state limits the use of lethal force to prevent an imminent threat to life or serious injury to officers or others.[13] The vast majority of the laws do not require officers to give a warning of their intent to use firearms.[14] Here, again, U.S. law and standards regarding police use of force do not meet international standards of law or practice.

 

Precautions

  1. All possible measures should be taken in advance to avoid a situation in which the decision to pull the trigger arises.[15] Failure to take proper preventative precautions constitutes a violation of the right to life.[16] States must “take reasonable precautions to prevent loss of life, wherever necessary in legislation or subordinate law,” Heyns wrote. [17] “This includes putting in place appropriate command and control structures; providing for the proper training of law enforcement officials in the use of force, including less lethal techniques, where possible, requiring issue of a clear warning before using force, and ensuring medical assistance is available.”

 

  1. The Commissioners’ concluded from the evidence of witnesses and attorneys that instead of requiring law enforcement officials to take precautions that protect life, U.S. law and police practices allow law enforcement officials to arbitrarily endanger the lives of Black people. The Commissioners found a clear  pattern of state-sanctioned criminalization of Black people through the targeted policing of Black communities permitted by U.S. law. The Commissioners also found that the pattern of criminalization of people of African descent included the use of “pretextual” traffic stops. These pretextual stops resulted in increased interactions with law enforcement in which police failed to take precautions to protect the lives of Black people. The Commissioners noted such stops “are a common precursor to police killings and uses of excessive force against people of African descent.” Similarly, in 2018, the Inter-American Commission on Human Rights (IACHR) found “an alarming historical scenario in the United States of discriminatory policing practices and racial disparities in the criminal justice system. African-Americans are consistently targeted on the basis of race for searches and arrests (racial profiling), and are often the victims of excessive force by police, resulting in death in many cases.”[18]

 

  1. S, law and practices do not require the precautions to protect life required by international law and standards. The U.S. Supreme Court has interpreted the Fourth Amendment of the U.S. Constitution to authorize uses of force by police only under circumstances in which the use of force is “objectively reasonable.” To determine whether an officer’s use of force is objectively reasonable, courts may consider several factors “including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”[19]The standard is highly deferential to police officers as the “particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”[20]

 

  1. The standard announced by the Supreme Court in Graham v. Connor[21] has influenced state statutes regarding police officers’ use of force and claims of self-defense. For example, the grand jury considering charges against officer Darrin Wilson for the murder of Michael Brown was asked to consider potential charges based on a statute that tracked the Fourth Amendment use of force standard.[22] The “objective reasonableness” standard in U.S. law is a significant obstacle in holding police officers accountable for excessive use of force against people of African descent. Indeed, since 2005, approximately 15,000 people have been killed by police in the U.S.[23] During that same period, only 104 police officers have been charged with murder or manslaughter for killing a civilian while on duty and of those, only 35 were convicted of any crime.[24] Attorney General of Minnesota, Keith Ellison, stated in reference to the prosecution of police officer, Derek Chauvin, for the killing of George Floyd, “Trying this case will not be an easy thing. Winning a conviction will be hard. History does show that there are clear challenges here.” [25] Prosecutors are aware of these challenges in convicting police officers and are therefore reluctant to bring charges against them.

 

  1. In fact, Supreme Court jurisprudence enables police to use U.S. law and standards of practice as at least a de facto basis for racial profiling and violent overreaction by law enforcement officers against Black people. The Court has set relaxed standards for securing a search warrant, stopping and frisking an individual, and effectuating a traffic stop. These relaxed standards allow police officers wide discretion to target Black individuals whom they stereotype as criminals.

 

  1. In Terry v. Ohio,[26] the Court legalized the stop-and-frisk doctrine—a virtual invitation for racial profiling. An officer only needs reasonable suspicion (a lower standard than probable cause) that someone has committed or is about to commit a crime to lawfully stop the individual. Reasonable suspicion that a person is armed and presently dangerous permits an officer to conduct a limited frisk of the outer clothing for weapons.

 

  1. Before the Court decided Illinois v. Gates,[27]an officer could not secure a search warrant if the confidential informant who supplied the information was unreliable. In Gates, the Court weakened the probable cause standard for a search warrant so that the reliability of the informant is no longer determinative. This leads to the execution of warrants for the wrong individuals. In addition, while officers executing warrants are required to knock and announce their presence, the Court held in Hudson v. Michigan[28] that failure to comply with this requirement will not compel suppression or exclusion of the evidence collected by officers. Thus, officers have no incentive to knock and announce. Moreover, in many drug cases, judges issue no-knock warrants, which invariably lead to police violence against Black people.

 

  1. In Whren v. United States,[29] the Court legalized pretextual stops. The Court’s ruling enables officers to stop cars and temporarily detain the driver on the pretext of enforcing traffic laws. As long as the officer is objectively reasonable in making the stop (e.g., probable cause for a traffic infraction), the officer’s decision to make the pretextual stop will be upheld. This dangerous expansion of police discretion to stop, search, and arrest encourages racial profiling and police violence against Black people.

 

  1. Further, the Commissioners heard several cases in which even the deficient domestic standards flowing from Fourth Amendment jurisprudence were not followed—leading to particularly egregious violations of the precaution requirement. Indeed, the Commissioners found a “pattern of police killings of Black people after violations of the Fourth Amendment right to be secure in their persons and houses from unreasonable searches and seizures.” These Fourth Amendment violations led invariably to the use of excessive force, and ultimately, to police killings of Black people.

 

Proportionality

 

  1. The proportionality requirement assumes the presence of a threat counterbalanced by proportional force. The amount of force an officer uses must be proportionate to the seriousness of the harm it is meant to prevent. Lethal force may only be used to prevent an imminently lethal threat.[30] The UN Basic Principles provide, “Whenever the lawful use of force and firearms is unavoidable, law enforcement officers shall… exercise restraint and act in proportion to the seriousness of the offence and legitimate objective to be achieved.”[31] Heyns wrote that “when (potentially) lethal force is used, . . . the requirement of proportionality can be met only if such force is applied in order to save life or limb. What is required in respect of lethal force is thus not ordinary proportionality but strict proportionality.”[32]

 

  1. Article 3 of the Code of Conduct states that law enforcement officers may “use force only when strictly necessary and to the extent required for the performance of their duty.” The Commentary explains: “[e]very effort shall be made to exclude the use of firearms, especially against children. In general, firearms should not be used except when a suspected offender offers armed resistance or otherwise jeopardizes the lives of others and less extreme measures are not sufficient to restrain or apprehend the suspected offender.” [33]

 

  1. UN Special Rapporteur Christof Heyns has stated, “Principle 9 is a strong affirmation of the principle of proportionality: All uses of firearms against people should be treated as lethal or potentially lethal.”[34] Principle 9 provides that, “Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against an imminent threat of death or serious injury… and only when less extreme measures are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.”

 

  1. The Commissioners found “disproportionate use of excessive force by police against Black people pervaded the 44 cases examined by Commissioners.” This unlawful, disproportionate use of force extended beyond shooting to other methods, including use of restraints and Tasers. In addition, the Commissioners found a pattern of disproportionate use of deadly force by Tasers against people of African descent nationwide. The Commissioners similarly found a pattern of unlawful and excessive force against people of African descent via chokeholds and compression asphyxiation, by officers either kneeling or standing on victims, and by officers cuffing victims face down and applying pressure to the victims’ heads and necks. The lack of proportionality was evident in every case heard by the Commissioners. In no case was there a threat, no less an imminent threat of death or serious injury, to the officers or others at the scene. Police officers in the U.S. frequently use these deadly methods, particularly against Black people.

 

  1. Heyns points out that while international law is primarily concerned with “the preservation of life and limb,” there are domestic legal systems with the first priority being “the protection of law and order.”[35] The body of U.S. laws governing the use of force is one such domestic legal system that elevates the maintenance of order over the preservation of life.

 

  1. As noted in Section 3, Tennessee v. Garner allows the use of deadly force to apprehend a suspect if a past crime they committed involved the infliction or threatened infliction of serious physical harm. “This violates the principle of proportionality,” the Amnesty International report concludes, “as the use of lethal force used in these situations is based on the commission or attempted commission of a past crime, rather than the ongoing commission of a crime or other threat of death or serious injury to the officer or others.”[36] Police techniques, tactics, and technologies that carry the risk of death or serious bodily harm and “are not necessary or proportional to the threats posed to officers and others,” according to the University of Chicago report,[37] include chokeholds, carotid artery holds, and neck restraints. U.S. law and practices do not comply with international law and standards regarding the proportionality of law enforcement’s use of force.

 

 

Protection of Life

                                                            

  1. “The ‘protect life’ principle demands that lethal force may not be used intentionally merely to protect law and order or to serve other similar interests,” such as “to arrest a suspected criminal, or to safeguard other interests such as property,” Heyns wrote in his April 1, 2014 report to the United Nations Human Rights Council.[38] “The primary aim must be to save life. In practice, this means that only the protection of life can meet the proportionality requirement where lethal force is used intentionally, and the protection of life can be the only legitimate objective for the use of such force.”

 

  1. All laws must state that firearms can only be used “[w]henever the lawful use of force and firearms is unavoidable,” as provided by the UN Basic Principles.[39] “The ‘protect life’ principle demands that lethal force may not be used intentionally merely to protect law and order or to serve other similar interests,” such as “to arrest a suspected criminal, or to safeguard other interests such as property,” Heyns noted in his report[40]. “The primary aim must be to save life . . . A fleeing thief who poses no immediate danger may not be killed, even if it means that the thief will escape.”

 

  1. The cases heard by the Commissioners strongly suggest a violation of the principle of protection of life, in light of the nonexistence of, or de minimis nature of, the crimes alleged against the victims. In all of the cases heard by the Commissioners, the victim was unarmed or non-threatening. The facts before the Commissioners did not present circumstances supporting a finding of imminent danger to anyone. The findings of the Commissioners further demonstrated that the violation of the duty to protect the right to life was flagrant. Police officers used force, not in the service of the protection of life, but rather for the racist and unwarranted taking of Black life.

 

  1. As explained in Section 3, Tennessee v. Garner allows the use of deadly force to prevent escape if there is probable cause of a past crime. Nationwide statistics indicate that 58% of police killings in 2020 were “situations where the person was not reportedly threatening anyone with a gun,”[41] such as mental health calls and routine traffic stops. That is, the majority of police killings involved, at worst, petty crimes or did not involve threats with firearms. The findings of the Commissioners were consistent with this national data. U.S. law and practices do not comply with international law or standards.

 

Non-discrimination

 

  1. The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) prohibits practices that have a discriminatory purpose or effect. U.S. jurisprudence only prohibits practices that have a discriminatory purpose or intent.[42]The Committee on the Elimination of Racial Discrimination[43] (CERD) has called on the U.S. to review the legal definition of racial discrimination and prohibit it in all forms–effect as well as purpose. CERD again notes that “the definition of racial discrimination used in federal and state legislation, as well as in court practice, is not in line with article 1, paragraph 1, of [ICERD], which requires States parties to prohibit and eliminate racial discrimination in all its forms, including practices and legislation that may not be discriminatory in purpose, but are discriminatory in effect (para. 10).”[44] CERD called on the U.S. in compliance with ICERD obligations, to prohibit racial discrimination in all its forms, amend all laws and policies leading to racial disparities in the criminal justice system, and implement effective national strategies or plans of action aimed at eliminating structural discrimination.

 

  1. CERD “reiterates its previous concern at the brutality and excessive use of force by law enforcement officials against unarmed racial people” including people of African descent, with impunity for abuses.[45]

 

  1. “At times, the police exercise higher levels of violence against certain groups of people based on institutional racism or ethnic discrimination. Discrimination on these, and other, grounds also impacts on patterns of accountability,” Heyns wrote in his report. “States must instead adopt a reactive and proactive stance encompassing all available means, to combat racially motivated and other similar violence within law enforcement operations.[46]

 

  1. As described in Section 5 above, the Commissioners found a pattern of discrimination in the use of deadly force in violation of the nondiscrimination principle—some of which was carried out even in violation of the lower standards set forth in U.S law.

 

Accountability

 

  1. The International Covenant on Civil and Political Rights;[47] the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;[48] and the International Convention on the Elimination of All Forms of Racial Discrimination[49] all require effective remedies for violations of the right to life, the prohibition against torture, and the right to freedom from discrimination. The U.S. has ratified all three treaties, making them part of domestic law under the U.S. Constitution’s Supremacy Clause.[50]

 

  1. Special measures are necessary to ensure that officers are held accountable for the violations of applicable law and standards of conduct.[51]These measures must include criminal, administrative, and disciplinary sanctions to ensure officials are held responsible.[52] According to the UN Basic Principles, “Governments and law enforcement agencies shall adopt and implement rules and regulations on the use of force and firearms against persons by law enforcement officials”[53] and they shall ensure that “arbitrary or abusive use of force or firearms by law enforcement officials is punished as a criminal offence under law.”[54] The failure of a State to properly investigate deaths after the use of force by police is itself a violation of the right to life.[55] Investigation after death or injury from police use of force must be prompt, thorough, impartial, and independent with a view to prosecution. It must include investigation of command responsibility and be subject to public scrutiny.

 

  1. S. federal prosecutors have the ability to charge police officers with federal civil rights violations, although such charges are rarely sought. In 2019, for example, researchers found that of the 184,000 cases prosecuted by the Department of Justice,[56] federal prosecutors brought only 49 civil rights charges. During that same period, prosecutors brought 119 charges for illegal hunting of fish and wildlife.[57] Based on these outcomes, legal scholars have observed that federal statutory and constitutional law are roadblocks to, instead of vehicles for, justice and accountability. Civil remedies for victims fare no better. To vindicate victims’ civil rights under the constitutional standards governing police use of force, the U.S. Congress enacted a civil rights statute designed to prevent abuse of civilians by individuals acting “under the color of law.” The statute, 18 U.S.C. 242,[58] was passed following the Civil War in an attempt to punish and prevent racial violence against Black people, particularly in the southern part of the U S. More recently, the statute has been used to prosecute government officials for broader civil rights abuses, including excessive use of force by police officers.

 

  1. Individuals who have suffered a constitutional violation may also seek a civil remedy under federal law. Under the law, commonly referred to as Section 1983, a government official “shall be liable” for the violation or deprivation of an individual’s constitutional rights.[59] The barriers to relief, however, are significant as individuals not only have to surmount often onerous legal standards to demonstrate a constitutional violation, but litigants must also overcome qualified immunity.[60]

 

  1. As previously discussed, under the doctrine of qualified immunity, a governmental official, such as a police officer, may not be found liable for a constitutional violation unless they violate a “clearly established law” such that a “‘reasonable official would understand that what he is doing’ is unlawful.”[61] In its initial articulation, the Supreme Court noted that qualified immunity “do[es] not require a case directly on point.” It does require that “existing precedent must have placed the statutory or constitutional question beyond debate.” Over the last two decades, however, courts have expanded the defense of qualified immunity by functionally requiring a previous case finding a constitutional violation under nearly identical circumstances. This is a high bar to meet and often precludes parties injured by police violence from obtaining damages for their injuries. As currently understood, qualified immunity “protects all government officials except the plainly incompetent or those who knowingly violate the law.”[62] As one commentator observed, “[t]he substance of constitutional rights is meaningless if state actors can violate those rights with impunity.”[63]

 

  1. Accordingly, the available laws for domestic redress of civil rights and constitutional violations do not comply with the U.S.’s obligation to provide for effective remedies.

 

  1. The Commissioners’ finding of a pattern of impunity of police violence against Black people in the U.S. is consistent with nationwide data from 2020, showing that “Officers were charged with a crime in only …one percentof all killings by police.”[64] Indeed, the national statistics for 2020 demonstrate the continuation of a pattern of violation that was previously raised by the IACHR in its reports from 2014 to 2018, which found “a disturbing pattern of excessive force on the part of police officers towards African-Americans and other persons of color.”[65] The IACHR further found that U.S. law and practices regarding police killings “giv[e] rise to high levels of impunity, which in turn result in the chronic repetition of such acts” and “the deficiencies in the investigation, along with the lack of institutional responsibility, may become a pattern.”[66] The IACHR urged the U.S. to conduct “exhaustive, impartial, independent, effective and prompt investigations”[67]

 

  1. This lack of accountability has deeply wounded the families who suffered the trauma of needlessly losing a loved one because of the color of their skin. They then had to cope with the unbearable anguish and mortification from the failures of the official institutions and authorities to provide remedies and hold police to account. As stated by Samaria Rice, mother of Tamir Rice, “We need to make examples out of police departments, law enforcement, governments, that think it’s okay to kill our kids, and go in the house and eat a ham sandwich. It’s not okay, because my life is forever altered, my children’s life was forever altered, my family is destroyed, because of the murder of my son.”[68]

 

 

  1. The state of U.S. law, with respect to use of force principles, is especially egregious given that the U.S. has repeatedly been urged to bring its law and practices in relation to excessive force by police into conformity with international standards. Indeed, in 1995, three years after a jury verdict acquitting police officers in the beating of Rodney King, the Human Rights Committee urged the U.S. to:

…take all necessary measures to prevent any excessive use of force by the police; that rules and regulations governing the use of weapons by the police and security forces be in full conformity with the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials; that any violations of these rules be systematically investigated in order to bring those found to have committed such acts before the courts; and that those found guilty be punished and the victims be compensated.[69]

 

  1. Twenty-five years later, the U.S. has yet to take such measures and its unlawful nonconformity with international laws and practices continues.

 

NON-COMPLIANCE OF U.S. LAW WITH THE PROHIBITION AGAINST TORTURE

 

  1. The United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (UNCAT) prohibits torture and cruel, inhuman, or degrading treatment or punishment, and mandates that States Parties take action to prevent and/or end acts of torture and remedy violation in their jurisdictions.[70]

 

  1. In 1988, President Ronald Reagan signed UNCAT and transmitted the convention to the U.S. Senate for consent to ratification with conditions. In transmitting the Convention for consideration by the U.S. Senate, the Reagan administration argued that UNCAT should be read in a “relatively limited fashion, corresponding to the common understanding of torture as an extreme practice which is universally condemned.”[71] When the Senate gave its consent to ratification of UNCAT, it attached a declaration that UNCAT was not self-executing and required implementing legislation to be enforced by U.S. courts.[72]

 

  1. As part of its limited interpretation of UNCAT, the U.S. enacted chapter 113C of the U.S. Code, prohibiting torture occurring outside the United States. More recently, UNCAT has been cited in additional federal legislation including the National Defense Authorization Act for FY2006.[73] It contains a provision prohibiting the cruel, inhuman, or degrading treatment of persons under the custody or control of the U.S. According to the U.S. State Department, in order to be covered by UNCAT, torture must be “severe” and other forms of cruel or violent conduct, such as police violence, “while deplorable, does not amount to ‘torture’” for purposes of the Convention.[74] As such, the U.S. has not enacted legislation that specifically prohibits various forms of police violence pursuant to its obligations under UNCAT. Instead, U.S. officials have argued that existing federal, state, constitutional, and statutory laws are sufficient to address violence against civilians by state actors.

 

  1. In so arguing, and in unduly limiting the application of UNCAT, the U.S. has pressed an unlawfully narrow construction inconsistent with the text of UNCAT, which as previously stated, defines torture as:

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.[75]

 

  1. As the IACHR notes, UNCAT is clear that “the intentional infliction of severe pain or suffering on a person by or with the acquiescence of State agents ‘for any reason based on discrimination of any kind’ would constitute torture.”[76]

 

  1. Further, UNCAT provides a standard and remedies not only for torture, but also for cruel, inhuman, or degrading treatment where committed by a “public official or other person acting in an official capacity” even if the conduct is not severe enough to constitute torture.[77]

 

  1. By limiting its prohibition on torture only to torture conducted abroad, the U.S. law fails to comply with international law standards. With respect to cruel, inhuman, or degrading treatment or punishment, in signing on to UNCAT, the U.S. made numerous reservations, such as limiting cruel, inhuman, or degrading treatment to standards consistent with the U.S. Constitution which requires a level of severity not required by international law.[78]S. domestic law thus fails to comply with the requisite international law and standards.

 

  1. In 2014, the Committee Against Torture (CAT), which interprets UNCAT, addressed racism and violent acts of torture in policing against Black people throughout the U.S. CAT was “concerned about numerous reports of police brutality and excessive use of force by law enforcement officials,” particularly against individuals “belonging to certain racial and ethnic groups,” immigrants, and LGBTQ people.[79]

 

  1. CAT has concluded that “information, education and training provided to [U.S.] law enforcement or military personnel are not adequate and do not focus on all provisions of the Convention, in particular on the non-derogable nature of the prohibition of torture and the prevention of [CIDT].”[80] CAT is particularly concerned with “the frequent and recurrent shootings or fatal pursuits by the police of unarmed Black individuals.”[81]

 

  1. In its 2011 General Recommendations No. 34, CERD recommends that measures be taken to “prevent the use of illegal force, torture, inhuman or degrading treatment or discrimination by the police or other law enforcement agencies and officials against people of African descent, especially in connection with arrest and detention, and ensure that people of African descent are not victims of practices of racial or ethnic profiling.”[82]

 

  1. Despite the recommendations of CERD, the U.S. has failed to recognize and cease these practices of racial discrimination by police. Indeed, the violation of international law by U.S. law, and the national practices in violation of international law noted by CERD, accord with the findings of the Commissioners that “order maintenance” policing drives racially disparate rates of arrests and U.S. law enforcement’s targeting of people of African descent based on racist associations between Blackness and criminality amount to inhuman and degrading treatment. Thus, the Commissioners find racial profiling violates the international prohibition against inhuman or degrading treatment.

 

 

 

 

 

[1] See Section 3.

[2] U.S. Const. art. VI, § 2.

[3] In 2020 the Office of the High Commissioner of Human Rights published a Guidance on Less Lethal Weapons in Law Enforcement. The Guidance covers such weapons as Tasers. This Guidance is built on the same principles as the Code of Conduct and the Basic Principles.

[4] G.A. Res. 217 (III) A

[5] Id.; U.N. Office of the High Commissioner, Basic Principles on the Use of Force and Firearms by Law Enforcement Officials of 1990 (Basic Principles), Principle 4.

[6] Amnesty International, Deadly Force: Police Use of Lethal Force in the United States (June 2015), https://www.amnestyusa.org/wp-content/uploads/2015/06/aiusa_deadlyforcereportjune2015-1.pdf (accessed Mar. 10, 2021).

[7] Deadly Discretion, supra n. 18.

[8] Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, 1 Apr. 2014, A/HR/6/36, para. 74, available at https://www.icnl.org/wp-content/uploads/cfr_2-A-HRC-26-36_en-(2).pdf.

[9] See Garner, 71 U.S. 1.

[10] U.S. Const., amend. IV.

[11] Extrajudicial, Summary or Arbitrary Executions, supra n. 269

[12]  Id.

[13]  Deadly Force: Police Use of Lethal Force in the United States, supra at 267..

[14] Id.

[15] Report on Extrajudicial, Summary or Arbitrary Executions, supra n. 269 at ¶ 63.

[16] Id., at ¶ 64.

[17] Id., at ¶ 51.

[18] Police Violence Against Afro-Descendants in the U.S., supra n. 22 at 19.

[19] See Garner, 471 U.S. at 8-9 (“[d]eadly force may not be used unless it is “necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others”).

[20] Graham, 490 U.S. at 396.

[21] See generally Graham, 490 U.S.

[22] St. Louis Public Radio, Grand Jury Wrangled With Confusing Instructions (Nov. 26, 2014), https://news.stlpublicradio.org/government-politics-issues/2014-11-26/grand-jury-wrangled-with-confusing-instructions; Chase Madar, Why It’s Impossible to Indict a Cop (Nov. 25, 2014), https://www.thenation.com/article/archive/why-its-impossible-indict-cop/.

[23] Philip M. Stinson & Chloe Wentzlof, Research Brief One-Sheet – No. 9: On-Duty Shootings: Police Officers Charged with Murder or Manslaughter, 2005-2019 (2019) https://scholarworks.bgsu.edu/cgi/viewcontent.cgi?article=1100&context=crim_just_pub.

[24] Id.

[25] See CLICKON Detroit, ‘These cases are not easy’: Minnesota AG determined to convict former Minneapolis police officers in George Floyd case (June 7, 2020), https://www.clickondetroit.com/news/local/2020/06/07/these-cases-are-not-easy-minnesota-ag-determined-to-convict-former-minneapolis-police-officers-in-george-floyd-case /;

See also Quint Forgey, Minnesota AG Ellison warns: ‘It’s hard to convict the police’, Politico, (June 7, 2020),

https://www.politico.com/news/2020/06/01/minnesota-attorney-general-hard-to-convict-police-293920 .

[26] Terry, 392 U.S. 1.

[27] Gates, 492 U.S. 13.

[28] Hudson v. Michigan, 547 U.S. 586 (2006).

[29] Whren, 517 U.S. 806.

[30] Report on Extrajudicial, Summary or Arbitrary Executions, supra. n. 269 at ¶ 67.

[31]Id. at Principle 5.

[32] Id. at  ¶ 64.

[33] G.A. Res. 34/169, supra n. 220 (commentary to Article 3).

[34] Report on Extrajudicial, Summary or Arbitrary Executions, supra n. 269 at  ¶ 70.

[35] Id., ¶ 73.

[36] Deadly Force: Police Use of Lethal Force in the United States, supra n. 267 at 23.

[37] DEADLY DISCRETION, supra n. 18.

[38] Report on Extrajudicial, Summary or Arbitrary Executions, supra ¶ 72.

[39] U.N. Cong. on the Prev. of Crime, supra n. 231, Principle 5(b).

[40] Report on Extrajudicial, Summary or Arbitrary Executions, supra ¶ 72.

[41] Mapping Police Violence, supra n. 175.

[42] McClesky, 481 U.S. 279.

[43]  CERD, Concluding Observations on the Combined Seventh to Ninth Periodic Reports to the United States of America, U.N. Doc. CERD/C/USA/CO/7-9 (2014).

[44] Id.

[45] Id. at ¶ 17.

[46] Report on Extrajudicial, Summary or Arbitrary Executions, supra ¶ 74.

[47] ICCPR, 999 U.N.T.S. 171.

[48]  ICAT, at art. 14.

[49]  ICERD, at art. 6.

[50]  U.S. Const. art. VI, ¶ 2.

[51]  U.N. Cong. on the Prev. of Crime, supra n. 231, Principles 6, 7, 11(f), 22.

[52] Report on Extrajudicial, Summary or Arbitrary Executions, supra ¶ 82.

[53]U.N. Cong. on the Prev. of Crime, supra n. 231, Principles 1, 11.

[54]  Id., at Principle 7.

[55]  Kaya v. Turkey, 28 Eur. Ct. H.R. 1 (1999); See also McCann v. United Kingdom, 21 Eur. Ct. H.R. 97 (1995).

[56] Police Officers Rarely Charged for Excessive Use of Force in Federal Court, Trac Reports (17 Jun 2020), available at: https://trac.syr.edu/tracreports/crim/615/ (accessed 26 Mar 2021).

[57] Id.

[58]  18 U.S.C. 242 (“Whoever, under color of any law, …willfully subjects any person…to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States [shall be guilty of a crime]”).

[59] 42 U.S.C. § 1983.

[60] Marjorie Cohn, Federal Judge Sets Out to Bring Down Law Shielding Police From Legal Liability, Truthout (11 Aug 2020), available at: https://truthout.org/articles/judge-and-elected-officials-challenge-key-law-shielding-police-from-liability/ (accessed 26 Mar 2021).

[61] Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

[62] Messerschmidt v. Millender, 132 S. Ct. 1235, 1244-45 (2012) (quoting Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011)).

[63] Jay R. Schweikert, Qualified Immunity: A Legal, Practical and Moral Failure, CATO Institute (14 Sept 2020), available at: https://www.cato.org/sites/cato.org/files/2020-09/pa-901-update.pdf (accessed 26 Mar 2021).

[64] Mapping Police Violence, supra. n. 175.

[65] Police Violence Against Afro-Descendants in the U.S., n. 22 supra at 24.                                                                          

[66] IACHR Expresses Concern with the Deficiencies in the Investigation of Cases Relating to Killing of Afro- descendants by the Police in the United States, Press Release No. 120/16 (Aug. 23, 2016), available at http://www.oas.org/en/iachr/media_center/PReleases/2016/120.asp

[67] Id.; See also IACHR Condemns the Killing of an African- American Man in the United States, Press Release No. 040/15 (Apr. 17, 2015), available at http://www.oas.org/en/iachr/media_center/PReleases/2015/040.asp; IACHR Expresses Concern Over Police Killings of African-American Persons in the United States, Press Release No. 90/14 (Aug. 22, 2014), available at http://www.oas.org/en/iachr/media_center/PReleases/2014/090.asp.

[68] Case of Tamir Rice, supra.

[69]  HRC, Report of the Human Rights Committee, vol. 1, ¶ 282, U.N. Doc. A/50/40 (1996), available at: https://www.refworld.org/pdfid/3f4746ae4.pdf (accessed 26 Mar 2021).

[70] CAT, supra n. 217. (Torture does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions).

[71]  President’s Message to Congress Transmitting the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Summary and Analysis of the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, May 23, 1988, S. TREATY DOC. NO. 100-20, reprinted in 13857 U.S. Cong. Serial Set at 3 (1990) [hereinafter “State Dept. Summary”]

[72]See OHCHR, Status of Ratification Interactive Dashboard, available at https://indicators.ohchr.org/.

[73] Pub. L. No. 109-163.

[74] Id. at 1.

[75] CAT, supra at art. 16.

[76] IACHR, supra at ¶ 230.

[77] CAT, supra at art. 16.

[78]  Michael J. Garcia, U.N. Convention Against Torture: Overview and Application to Interrogation Techniques 11 (26 Jan 2009), available at https://fas.org/sgp/crs/intel/RL32438.pdf.

[79]  Comm. Against Torture, Concluding Observations on the Combined Third to Fifth Periodic Reports of the United States of America, U.N. Doc: CAT/C/USA/3-5 [hereinafter: Concluding Observations] (19 Dec 2014).

[80]  Comm. Against Torture, Conclusions and Recommendations of the Committee Against Torture: United States of America, U.N. Doc. CAT/C/USA/CO/2 at ¶ 23 [hereinafter: Conclusions and Recommendations of the Committee Against Torture] (25 Jul 2006), available at https://undocs.org/CAT/C/USA/CO/2.

[81]  Concluding Observations, supra n. 340, at ¶ 26.

[82] CERD/C/GC/34 at ¶ 39. (Oct. 11, 2011).

 

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