Reasonable or proportional: Where Wisconsin policing stalls on use of force reform

MADISON, Wis. — Police reform has been part of the national conversation for years, but police killings haven’t declined along with it. For years, police have killed three people a day on average nationwide–a rate that has remained fairly steady. In Wisconsin, in an eight-year period from 2013 to 2020, police killed an average of about one person every three weeks–or 130 people during that time frame.

That number fluctuates year by year. In 2013, according to the Mapping Police Violence project, police killed ten people. In 2017, it was 26. Last year, it was 19; ten of them after George Floyd’s murder in May.

About 24% are Black, or about four times the percentage of Wisconsin’s Black population. Measured by population, police have killed more for every 100,000 in population than neighboring states Michigan, Minnesota, and Illinois for that same timeframe.

Reasonable or Proportional

Across Wisconsin and many other states, the accepted standard for use of force in policing is that of “reasonable objectiveness”, a term based in a 1989 U.S. Supreme Court decision that decided legal cases would be judged by what force the officer thought to be reasonable in the moment rather than in hindsight.

But a different term, proportional force, was advocated for by several on Wisconsin’s racial disparities task force and found in a recent New Jersey policy change–but also found in police reform recommendations from various organizations over the years. Florida’s conservative-controlled House just passed their own package of police reform bills that will require law enforcement agencies to adopt a proportional standard for using force while encouraging deescalating measures for force situations.

The term arose frequently in Derek Chauvin’s murder trial.

“Proportionality basically means an officer is only allowed to use a level of force that’s proportional to the seriousness of the crime or the level of seriousness that a subject is using,” Sgt. Jody Stigers of the Los Angeles Police Department explained to the jury, which later found Chauvin guilty on three charges of murder and manslaughter.

The concept of equality in force decisions, however, met with a lot of resistance from the vast majority of law enforcement stakeholders on the racial disparities task force subcommittee that recently release 18 reform recommendations.

“I think the concern from some on the taskforce was that the word proportional could be read as equal, so that if a law enforcement officer was struck with a fist, the only thing they could do is respond with a fist,” Republican co-chair of the task force Rep. Jim Steineke said. “That’s not always in the best interest of the officer, the individual, or the public at large.”

“My size is completely different in regards to my training with my background…[it] would be completely different from an officer who is 5’5″, 115 pounds,” incoming Dane County sheriff Kalvin Barrett said. “So that’s when we’re trying to lock in a specific definition, it’s hard because it all depends on…the totality of circumstances.”

Jim Palmer, executive director of the state’s largest police union, argued that states that use the term in their guidelines have made it meaningless through fine print and stipulations that ultimately leave it much the same as an objectively reasonable standard. Neither does he see the need for a fundamental change in how policing use force, saying that police already continuously reexamine policies.

“There isn’t a state anywhere in the country that requires officers to use proportional force,” Palmer argued, pointing to how New Jersey used the objectively reasonable standard in the policy that also used proportionality. “They have statutes that use the term proportional in their use of force guidelines, but other information and other substance in those same guidelines undermines what that even means.”

Wayne Strong is a retired Black police lieutenant who served from 1989 through 2013 in the Madison Police Department, working undercover, in narcotics, as a neighborhood officer in South Madison, and more. He was one of the only law enforcement voices on the task force that saw a proportional standard as a viable option, pointing out that “objective reasonableness” can be applied differently.

“We see different standards applied to different people and to different circumstances, so its not always objective,” he noted in one meeting. In a later interview with N3I, he added that too often, excessive force is used in situations that don’t require it.

“There is a lot of subjectivity that goes into objective reasonableness, and that’s the issue that I have,” Strong explained. “I think we need to look at that more closely and make sure that we’re giving our officers the training that they need to deescalate rather than escalate situations.”

The task force didn’t include recommendations or come to a consensus on deescalation training as a standard in Wisconsin.

Advocates: Wisconsin lags behind on police reform

“If we continue to use the same use of force guidelines that are currently in place, nothing changes,” Fred Royal with Milwaukee’s NAACP chapter said.

“People are dying,” Keetra Burnett from Dane County’s United Way said in one meeting, a member of the task force. “Something has to change.”

While more than 30 other states have passed laws on police reform since George Floyd’s murder, Wisconsin isn’t one of them. The recommendations from the task force still have to be introduced as bills, and then manage to get a majority of votes from a legislature that has rarely passed bipartisan legislation on high-profile partisan issues in the past year.

Without a statewide standard for use of force in Wisconsin law, which a new work group has now been tasked to come up with, other recommendations like criminal penalties for officers who fail to report excessive force could be rendered ineffective.

“Without defining use of force, we’re at the same place that we are,” Royal said, an advocate of a definition that included proportionality.

“We didn’t go far enough to actually bring forth real police reform and accountability.”