The responses by police involve possible violations of international law and the principles of necessity and proportionality that should always guide police use of force. Also in play are violations of the freedom of the press to report on public protests.
The events of the past few days are further highlighting the dangers of “less-lethal” weapons: rubber-coated metal bullets, tear gas, rubber ball projectiles, pepper spray, just to name a few. Under the false allure of “limited damage,” the use of these less-lethal weapons has proliferated over the last 20 years. Cheaply produced and easy to deploy, these weapons are defined as “offering a substantially reduced risk of death when compared to conventional firearms” and are now favored instruments in the militarization of our societies and a common feature of the privatization and increasing commodification of security and policing.
The basic rationale for this type of weaponry is legitimate. Courts have long called for law enforcement agents to be provided with equipment to better adapt their reaction proportionately to the incidents in which they have to intervene. But as early as 1990, when the United Nations’ Basic Principles on the Use of Force and Firearms by Law Enforcement Officials was adopted, experts warned of the dangers of non-lethal incapacitating weapons. Since then, experience has shown they were right.
First, less-lethal does not mean nonlethal. As human rights organizations around the world report, less-lethal weapons have killed and also wounded horribly, leading even to permanent disability.
Second, to be lawful under international norms, the use of less-lethal weapons — as for conventional firearms — must be restricted to situations of necessity and in proportion to the associated risks. In other words, the force used must be the very minimum required under the circumstances at hand. Yet, as we have seen on social media in the past couple of days, many police officers fail to judge the circumstances appropriately.
Thirdly, under international law, any use of force by state agents that exceeds what is necessary and proportionate is deemed an attack on human dignity. Outside the United States, regional courts have found that the use of less-lethal weapon may amount to torture or ill-treatment if it was not “proportionate to the aim pursued, namely to disperse a non-peaceful gathering” and because the severity of the resulting injuries to the applicant’s head were not “commensurate with the strict use by the police officers of the force.”
Indeed, concerns about cavalier use of less-lethal weapons are so high that U.N. special rapporteurs have warned repeatedly against their unlawful use and the U.N. human rights agency has found it necessary to issue just this year guidelines on their use.
But the U.S. legal framework for police use of force does not comply with the international standards of necessity and proportionality. It is governed instead by the principle of reasonableness and the doctrine of qualified immunity. The former permits law enforcement officers to use lethal force where it is “reasonable” to do so given, for example, the severity of the crime underway, the threat posed by the suspect, whether arrest is being resisted, etc. The latter, however, shields police from being sued except under the most narrow of circumstances. In the unusual case that violence or death at the hands of the police reaches court, the police officers’ assessment dominates, leading most often to “not guilty” verdicts. As Supreme Court Justice Justice Sonia Sotomayor argued in her dissenting opinion in Mullenix v. Luna, the court finds itself sanctioning a “shoot first, think later” approach to policing.
Police killings in the United States and elsewhere must be tackled, not only because of their frequency and preventability, but because they so often reflect underlying and systemic racism, discrimination and impunity. It is all too easy to feel defeated by the normalized use of excessive force by law enforcement officers, but this is the moment in which clear steps can be taken for that dynamic transformation.
First and crucially, laws and regulations governing police use of force in the United States must be transformed to better match international obligations. Adherence to the principles and best practices of necessity and proportionality won’t end excessive use of force or arbitrary killings, but it will provide a far more robust framework for the protection of people and one on which courts may more confidently rely.
Secondly, qualified immunity for police must end.
Thirdly, the international standard of precaution must be implemented: For example, the failure to provide security officials with the proper training in the use of less-lethal techniques and weapons may constitute a failure to protect life. The broader system of police response should be examined to root out and address the failures to take appropriate precautionary measures.
Fourth, non-lethal weapons must be regulated: monitor their development, production and sale transparently; issue appropriate protocols for their legitimate use.
Fifth, accountability must be delivered. Intentionally targeting media crews, firing rubber bullets at the face or spraying gas directly at a protester whose sole “crime” was to raise their hands and speak up? Those actions may be non-lethal, but they are most certainly not acceptable. These are behaviors that likely amount to violations of the law, acts of cruelty that should have no place in any police force, let alone ones in a democratic society founded on the rule of law.
Finally, there should be independent commissions of inquiry at federal and state levels to assess and investigate fully the use of force by police. These must be impartial and independent inquiries into systemic abuses that can then guide needed reforms. This may require the appointment of specialized prosecutors, specialized courts and specialized investigators, operating completely independently from the police and local or state officials.
The time for significant reform to protect citizens is now. If not now, when?