TOWARD A NATIONAL USE-OF-FORCE DATA COLLECTION SYSTEM: ONE SMALL (AND FOCUSED) STEP IS BETTER THAN A GIANT LEAP

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POLICY ESSAY

TOWARD A NATIONAL USE-OF-FORCEDATA COLLECTION SYSTEM: ONE SMALL(AND FOCUSED) STEP IS BETTER THANA GIANT LEAP*

MICHAEL R. SMITHUniversity of South Carolina

Conflict arises in a democracy when governmental power collides withindividual liberty. Nowhere is this conflict more apparent than when themost visible domestic agents of state power—the police—use or threatento use physical force in carrying out their mandate to maintain socialorder. In the United States, this exercise of state power chafes against thenational culture; garners attention from the press; and results in periodiccalls for commissions, investigations, statutory changes, and better infor-mation on the nature and extent of how police use physical force in theirdaily activities. Not surprisingly then, the use of force by police has beenthe subject of research by social scientists for more than 40 years. Amongthe most recent examples of this line of research is the article published inthis issue by Hickman, Piquero, and Garner (2008, this issue), in whichthey call for a national use-of-force reporting system that would providebetter data from which to estimate the prevalence of force used by police.

This policy essay responds to their call for a national use-of-forcereporting system in the United States. I begin with a discussion of the vari-ous mechanisms through which use-of-force data could be collected on anational scale and what legal, political, or economic factors might impactthe probability of establishing a national reporting system. Next, I discussthe limitations of such a system, which include the costs, benefits, and dif-ficulties of measuring the prevalence of force and excessive force at thenational level. Finally, I turn to what a national reporting system should beconcerned with and present a modest proposal for improving the collec-tion and dissemination of police use-of-force data for the purposes ofprevention and injury reduction.

* Direct correspondence to Michael R. Smith, 100G Currell College, University ofSouth Carolina, Columbia, SC 29208 (e-mail: [email protected]).

CRIMINOLOGY & Public PolicyVolume 7 Number 4 Copyright 2008 American Society of Criminology

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Mechanisms for Collecting Use-of-ForceData at the National Level

Assuming for a moment that a national use-of-force reporting systemwould be advantageous, at least three possible mechanisms are availablefor accomplishing that goal. Before I discuss those mechanisms, however,it is important to remember that the U.S. Constitution places limits on thepower of the federal government to require states or subordinate entities(e.g., local police departments) to administer or enforce a federal regula-tory program (Siegel, 2006). Under the anti-commandeering doctrine,Congress probably lacks the authority to simply require state and local lawenforcement agencies to collect or report use-of-force-related data, even ifpolitical support for such a regulatory scheme could be generated (NewYork v. United States, 1992).

However, under its spending power, Congress may attach conditions tothe receipt of federal funds and may require entities that receive federalfinancial assistance, such as state or local law enforcement agencies, toengage in specified practices (South Dakota v. Dole, 1987). For example,§ 301 of the End Racial Profiling Act of 2001 would have required anygovernmental unit that applied for federal funding to collect data on “rou-tine investigatory activities” to determine whether law enforcement agentsunder its control were engaging in racial profiling. Congress could condi-tion the receipt of federal monies on the requirement that lawenforcement agencies collect and make available data on use-of-forceencounters. As demonstrated by the failure of two previous racial profilingbills, however, the likelihood of such a statute being passed by Congressand signed into law by the president is slim. Police labor unions wouldundoubtedly object, as would county and municipal associations out offears of civil liability. Although liability issues perhaps could be addressedin the law itself through a grant of immunity to agency participants, such aprovision would draw the wrath of trial lawyers and reduce the likelihoodof the bill’s passage.

An alternative approach would be to set up a voluntary use-of-forcereporting system much like the Uniform Crime Reporting system adminis-tered by the Federal Bureau of Investigation (FBI). The most robustattempt to date for establishing such a system came in the wake of theViolent Crime Control and Law Enforcement Act of 1994, in which Con-gress directed the Attorney General to collect information on the use of


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excessive force by police.1 In 1996, the National Institute of Justice (NIJ)and the Bureau of Justice Statistics (BJS) provided funding to the Interna-tional Association of Chiefs of Police (IACP) to develop a nationaldatabase on police use of force. The IACP convened a panel of experts,created a set of definitions and variables for data collection, and devel-oped a software package and agency data capture system that, by 2000,had recorded information on more than 177,000 police-citizen use-of-forceencounters that took place in 564 agencies (IACP, 2001). Unfortunately,funding for the IACP project ended shortly thereafter, and the project wasdiscontinued. Even while it was operative, the data elements it collectedwere limited, and the data were never archived or made widely availableto researchers.

The IACP experience shows the limitations of a voluntary use-of-forcereporting program. Without direct funding, agencies have little incentiveto participate, and the effort is likely to wane once priorities change. Evenif local agencies continue to collect data, an organization with nationalreach and a steady funding stream must act as the custodian for the dataand maintain it in a format that is accessible and amenable to research andanalysis. Although the IACP project was not sustained, at the very least, itdemonstrated the feasibility of creating the architecture for a national use-of-force reporting system.

A final method for collecting use-of-force data on a large-scale basiswould be to establish a federal grant incentive program that would providelaw enforcement agencies with direct funding for their participation. Asystem such as this one might operate as a variation on the currentNational Highway Traffic Safety Administration (NHTSA) program thatdeals with racial profiling, which is itself the remnant of the failed racialprofiling bills introduced into Congress in 2001. Section 1906 of the 2005Safe, Accountable, Flexible, Efficient Transportation Equity Act provided$7.5 million in NHTSA grants to states that enacted and enforced lawsthat prohibited the use of racial profiling in traffic law enforcement andthat collected and allowed public inspection of statistical informationregarding the race and ethnicity of the driver and any passengers for eachmotor vehicle stop in the state. Congress, with advice from the NIJ or BJS,could fund a similar grant program to state or local law enforcement agen-cies that collect and make available for research purposes data on the useof force by police. Such a program surely would not be funded at a level

1. Beyond the three Police-Public Contact Surveys (1999, 2002, 2005) undertakento date and a 2006 BJS report on citizen complaints about excessive force (Hickman,2006), the Department of Justice has never complied with the requirement that it “pub-lish an annual summary of the data” that it acquires related to excessive force (42U.S.C. § 14142(c)).


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that would guarantee comprehensive national participation, but it is politi-cally palatable enough (as an incentive program) to have a chance atpassage and could produce better data than are currently available andfrom a range of agency types and sizes. I return to this theme below butnow turn to a discussion of the limitations of a national reporting system,especially as they relate to the call from Hickman et al. (2008) for anational estimate of the prevalence of police use of force.

Limitations of a National Use-of-Force Reporting System

Hickman et al. (2008) combined the use-of-force data from the 2002Police-Public Contact Survey (PPCS) and the Survey of Inmates in LocalJails (SILJ) to arrive at an estimate of the percentage of contacts (1.7%)between police and citizens that involve the use or threatened use of force.They make a persuasive argument that their methodology represents animprovement over the PPCS alone in estimating the prevalence of forceused by the police. As to the question of prevalence, a national system foraccurately recording each instance of physical force used by police wouldindeed provide a better accounting of how often police use force againstcitizens. Although at this point, what is the significance of knowing witheven greater precision how often police use or threaten to use force? Fortyyears of research, which includes the Hickman et al. article, already hastold us that police use force rarely when all police-citizen contacts are con-sidered (1% to 2%) and more often (around 20%) when only arrests areconsidered (Croft, 1985; Durose, Smith, and Langan, 2007; Garner, Max-well, and Heraux, 2002; Reiss, 1971). Would a national reporting systemresult in substantively different findings? I doubt it. Therefore, it is reason-able to question whether the benefits of measuring more precisely theprevalence of force used by police are worth the costs of establishing anational reporting system, even if it is possible to create such a system.

In addition to telling us how often police used or threatened force in2002, Hickman et al. (2008) also report on various factors that were statis-tically related to the use and/or severity of force. Like many researchers(see Garner et al. [2002] for a review), Hickman et al. found that race,gender, and suspect resistance (what they label as “provocation”) corre-late with the use of force by police. These findings are not uninteresting;however, they merely reinforce what is already known about the factorsassociated with force. Moreover, the nonexperimental research designsused by all use-of-force researchers to date, which include Hickman et al.,do not allow for the identification of cause and effect or provide clear


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policy guidance to agencies.2 A national reporting system that requirespolice agencies to describe when and under what conditions force wasused simply would provide more of the same cross-sectional data analyzedin previous studies and likely would show the same results that have beenreported multiple times in the use-of-force literature.3

How often and under what conditions police use excessive force are crit-ical questions that have yet to be addressed satisfactorily by use-of-forceresearchers. In the exhaustive list of use-of-force studies reviewed byHickman et al. (2008; see Appendix A of their article), only two (Fried-rich, 1980; Worden, 1995) attempted to measure improper or excessiveforce, and both of them did so using subjective and nonsystematic criteria.Unfortunately, a national use-of-force reporting system that focuses onreadily collectible and analyzable data elements will not provide answersto how often police use excessive force or even what factors may be associ-ated with its use.

Determining whether the force used by police is excessive is a fact-ladeninquiry that cannot be informed adequately by reference to the standardindividual, situational, and departmental elements that likely would com-prise a national data-collection strategy. Moreover, devoting additionalresources to the SILJ for the purpose of capturing “rich data on the use ofexcessive force” as advocated by Hickman et al. (2008) also is not theanswer. The few studies that have attempted to interview officers and sus-pects about their perceptions of force events and the use of excessive forcereveal widely divergent accounts of the events that transpired (Alpert andDunham, 2004; Smith, Kaminski, MacDonald, Fridell, and Alpert, inpress). In Alpert and Dunham’s Miami study, for example, 83 suspects outof 604 arrestees interviewed in jail during 1999 reported that force hadbeen used against them. Of those, 75 (92%) indicated that more force thannecessary was used in their arrests. However, from the police perspective,only seven control-of-persons reports were filed for the 83 suspects; thisfinding indicates either that suspects were misrepresenting the force usedagainst them or that the officers were grossly underreporting the force

2. I do not fault use-of-force researchers for failing to conduct experiments.Other than manipulating suspect race, gender, or other theoretically relevant factors invignettes, it obviously would be impractical and unethical to “experiment” with the useof force by police in real-world settings. I merely point out the extant research on policeuse of force fails to provide clear answers to agencies regarding how they can reducethe prevalence of force or reduce the influence of such things as race and gender on theuse and severity of police force.

3. A case-control design that compared cases (e.g., arrests) in which force wasused with similar cases where force was not used could provide analytic advantages tothe current regression-based analyses prevalent in most use-of-force research (seeArmenian [2007] for a review of case-control designs and methods).


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they used. Based on jail injury records at the time of admittance, Alpertand Dunham concluded it was highly probable that at least some inmatesinterviewed provided false accounts of their arrests. Thus, relying on theSILJ for accurate data on excessive force by police is a stretch.

Although identifying the prevalence of excessive force is among themost important of the many unanswered questions in use-of-forceresearch, the fact-specific nature of that inquiry suggests the need for qual-itative data, probably in the form of detailed narratives (written or oral),in-car camera tapes, or eyewitness accounts. Use-of-force narratives frompolice reports are a possible data source, but like the SILJ interviews, theyare likely to be self-serving and at the national level would produce reamsof qualitative data that would pose overwhelming analytic challenges. Thesystematic review of in-car camera recordings or eyewitness accounts atthe national level likewise would constitute a massive and economicallyprohibitive undertaking. Consequently, because of the qualitative natureof the analysis, the collection of data at the national level in an effort todetermine how often and under what conditions police use excessive forceis probably too ambitious a goal. Such inquiries are better left to the locallevel where more manageable data collection efforts can be undertaken inresponse to locally perceived patterns, trends, or concerns.

Better Data for Harm Reduction

Hickman et al. (2008) correctly identify the need for better and morerepresentative use-of-force-related data. Given that much is alreadyknown about the nature and prevalence of the force used by police, andbecause of the difficulties in a large-scale assessment of excessive force, afuture national data-collection strategy should focus on producingresearch and analysis that will inform efforts to reduce the harm associ-ated with resistive or violent police-citizen encounters. Epidemiologicalresearch on reducing or preventing harm in these contexts is lacking. Sev-eral years ago, the NIJ recognized the void and began funding severalresearch initiatives to study how and why injuries occur to officers andcitizens during use-of-force events. Understanding what factors contributeto injuries, which includes the impact of new technologies such as theTaser, is the first step in developing harm reduction strategies. Preventingpolice-citizen violence or reducing the harm associated with the use offorce is of manifest importance, and yet little research exists on these top-ics to inform police policy, training, or practice (Smith, Kaminski, Rojek,Alpert, and Mathis, 2007).


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Researchers who attempt to model injury outcomes from use-of-forceevents or who seek to develop harm reduction strategies based on epide-miological analyses are soon confronted with the limitations on dataavailability and consistency discussed by Hickman et al. (2008). As part ofan NIJ-funded research team, I recently sought to obtain use-of-force andinjury data from 20–25 law enforcement agencies nationwide that could becombined into a master dataset and subjected to analysis. The Police Exec-utive Research Forum conducted a nationally representative survey ofU.S. law enforcement agencies as part of the project, and some informa-tion derived from the survey was to be used to identify agencies thatmaintained use-of-force and injury data electronically. Among the 518agencies that responded to the survey, only 35% indicated that they main-tained use-of-force or injury data electronically, and only 26% did both.Once we began contacting the larger among these agencies (those with atleast 100 officers), we soon found that most actually did not possess “elec-tronic” data that could be extracted, downloaded, or transmitted to us, orthe data were of such poor quality they were unusable. We ended up withdata from only 12 agencies, and differences across the datasets on whichvariables were collected and how they were defined limited our analysis inthe end.

Focusing a national use-of-force data collection effort on harm reduc-tion is both important and politically feasible. Law enforcement agenciesthat may be reluctant to sign onto a data collection system that seeks toidentify trends in force prevalence or excessive force likely would be moresupportive of an effort to reduce injuries and the liability risks that goalong with them. They also would recognize value in the local public andpolitical support to be gained from participation. Again, our experienceswith the NIJ project are instructive. Among agencies that had usable data,none declined to provide us with their data once we explained the natureand purpose of the project. They all believed that harm reduction was aworthwhile goal that should be pursued.

The harm reduction and use-of-force projects that have been under-taken to date are few, and all are hamstrung by limited data. Much work isleft to be done, and more and better data clearly are needed. The best wayto obtain those data is for Congress to fund a grant incentive program thatwould be administered through a branch of the Justice Department suchas the BJS or NIJ. Agencies could apply for grant funds to build the sys-tems (both human and technological) necessary to collect use-of-forcedata, which then would be used to support research and analysis aimed atreducing the need for and harmful consequences of police-citizen violence.Like the IACP project, a panel of experts could identify the appropriatedata elements to be collected, and a common software platform could be


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developed for data entry, storage, and transmission to a research teamfunded to advise agency participants, audit the incoming data, and create apublicly available and nonproprietary dataset for research purposes. Sucha strategy would not produce data that are truly national in scope, but ifwell funded, would result in a large-scale data source that could be main-tained and updated regularly as new use-of-force technologies cameonline. This modest proposal is both affordable as well as politically andlegally practicable. Most importantly, it would spur new and betterresearch on how to reduce the harm that frequently occurs when policeuse force to prevent or overcome suspect resistance.

References

Alpert, Geoffrey P. and Roger G. Dunham. 2004. Understanding police use of force:Officers, suspects, and reciprocity. New York: Cambridge University Press.

Armenian, Haroutune, ed. 2007. The case control method: Design and applications.London: Oxford University Press.

Croft, Elizabeth. 1985. Police use of force: An empirical analysis. Ph.D. Dissertation.University at Albany, State University of New York.

Durose, Matthew R., Erica L. Smith, and Patrick A. Langan. 2007. Contacts betweenpolice and the public, 2005. Washington, DC: Bureau of Justice Statistics.

Friedrich, Robert. 1980. Police use of force: Individuals, situations, and organizations.The ANNALS of the American Academy of Political and Social Science, 452:82–97.

Garner, Joel H., Christopher D. Maxwell, and Cedric G. Heraux. 2002. Characteris-tics associated with the prevalence and severity of force used by the police. JusticeQuarterly, 19:705–746.

Hickman, Matthew J. 2006. Citizen complaints about police use of force. Washington,DC: Bureau of Justice Statistics.

Hickman, Matthew J., Alex R. Piquero, and Joel H. Garner. 2008. Toward a nationalestimate of police use of nonlethal force. Criminology & Public Policy. This issue.

International Association of Chiefs of Police (IACP). 2001. Police use of force inAmerica 2001. Washington, DC: Author.

Reiss, Albert. 1971. The police and the public. New Haven, CT: Yale UniversityPress.

Seigel, Neil S. 2006. Commandeering and its alternatives: A federalism perspective.Vanderbilt Law Review, 59:1629–1691.

Smith, Michael R., Robert J. Kaminski, John MacDonald, Lorie Fridell, andGeoffrey P. Alpert. A multi-method evaluation of police use of force outcomes.Columbia: University of South Carolina. In press.


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Smith, Michael R., Robert J. Kaminski, Jeffrey Rojek, Geoffrey P. Alpert, and JasonMathis. 2007. The impact of conducted energy devices and other types of forceand resistance on officer and suspect injuries. Policing: An International Journal ofPolice Strategies and Management, 30:423–446.

Worden, Robert. 1995. The “causes” of police brutality: Theory and evidence on policeuse of force. In (William Geller and Hans Toch, eds.), And justice for all: Understand-ing and controlling police abuse of force. Washington, DC: Police Executive ResearchForum.

Cases Cited

New York v. United States, 505 U.S. 144 (1992).

South Dakota v. Dole, 483 U.S. 203 (1987).

Statutes Cited

End Racial Profiling Act of 2001, H.R. 2074, 107th Cong. (2001).

Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. § 14142 (2006).

Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users§ 1906, 23 U.S.C. § 402 (2006).

Michael R. Smith is a professor and chair of the Department of Criminology andCriminal Justice at the University of South Carolina. He is a former police officer whograduated from the University of South Carolina School of Law (1993) before receivinga Ph.D. in justice studies from Arizona State University in 1996. For the past 12 years,he has conducted socio-legal research on critical issues in policing, which include theuse of force and racial profiling. In 1999, he conducted one of the nation’s first empiri-cal studies of racial profiling in Richmond, Virginia, and later served as a racial profilingconsultant to the U.S. Department of Justice and as a project member for profiling-related studies in Miami-Dade, Florida, and Los Angeles, California. He currentlyserves as a co-principal investigator on a federally funded study of police use of forcethat is seeking to model injury outcomes among officers and citizens. Recent publica-tions have appeared in Review of Policy Research, Criminal Justice and Behavior, andPolicing: An International Journal of Police Strategies and Management.

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TOWARD A NATIONAL USE-OF-FORCE DATA COLLECTION SYSTEM: ONE SMALL (AND FOCUSED) STEP IS BETTER THAN A GIANT LEAP