Members of the Wisconsin Assembly task force on racial disparities went back and forth for hours on Tuesday trying to come to a consensus on a meaningful and forceful definition of reasonable use of force by a police officer — dividing over the inclusion of the word “proportional.”
The task force was formed by Assembly Speaker Robin Vos in 2020, after Legislative Black Caucus members worked with Gov. Tony Evers on a package of bills to address racial justice and policing in the wake of the shooting of Jacob Blake by a Kenosha police officer last August and George Floyd’s killing by Minneapolis police officer Derek Chauvin, who was found guilty of murder on Tuesday. Vos refused to allow debate on the bills, and instead appointed the task force.
A subcommittee of the task force met to work toward a use of force definition that could be put into state statute and establish a statewide standard for police. A standardized definition would help give teeth to other task force priorities — such as creating a duty to intervene if an officer sees a coworker using excessive force.
Hours before the guilty verdict in Chauvin’s trial was announced, task force members frequently referenced Chauvin and the killing of George Floyd last year as a galvanizing force for trying to find common ground.
But the group was unable to come to an agreement. Ultimately, members of the Speaker’s Task Force on Racial Disparities, sitting on the Subcommittee on Law Enforcement Policies and Standards, determined that what they needed, in order to find a passable definition, is the creation of a “working group” to further discuss the matter.
As the conversation continued to spin in circles, the committee’s co-chair, Rep. Shelia Stubbs (D-Madison), expressed her desire to come to an agreement and not to let one sticking point derail progress toward providing recommendations for legislation to help ease racial injustice in Wisconsin.
“I don’t want to fail, failure is not an option for me, I took a risk to be this co-chair for seven months,” Stubbs said. “And for me, as an African-American legislator, as a mom, as a community leader, it’s important for me to walk out of this room with a definition for use of force. And if we’re watching TV and seeing what’s happening across this country, we are in a unique position in Wisconsin to come up with our definition. So we don’t have to point to Minnesota or New Jersey and New Mexico or Illinois, we can point to ourselves.”
Community members and activists were pushing for a definition that requires an officer’s use of force be “proportional” to the circumstance. The proportional standard comes from a policy created by the New Jersey Attorney General in 2020 and was submitted to the task force by Fred Royal, president of the Milwaukee chapter of the NAACP.
“Officers shall use the least amount of force that is objectively reasonable, necessary and proportional to safely achieve the legitimate law enforcement objective under the circumstances,” the New Jersey policy states.
But even the New Jersey policy still uses the phrase “objectively reasonable,” which is the current standard for assessing use of force that was established by the U.S. Supreme Court in its Graham v. Connor decision. Under Graham v. Connor, an officer’s use of force shouldn’t be assessed with “20/20 hindsight” but from the perspective of an “objectively reasonable” officer responding to the same set of facts in a specific incident.
Royal was pushing for the proportional standard because he said he believes it lowers the bar that a prosecutor must clear in order to bring charges against an officer who has wrongfully used force.
“The concern from the community is to consistently see law enforcement officers that are not held accountable, because the standard is so high that a reasonable person, under the totality of the circumstances, might do the same thing,” Royal said about the standard set by the Supreme Court.
Members of law enforcement on the committee disagreed, saying that the addition of “proportional” into the use of force statute would have the opposite effect from what activists intend.
“My opinion is, if we add the word proportional, we are going to swing the pendulum in a worse direction than what the group or members of this group perceived is already bad,” Rice Lake Police Chief Steven Roux said. “Community members will be more at risk as a result of no action or inaction or incorrect action by officers because of the subjectivity — the ambiguity — of the word proportional.”
Some members of the task force pointed to the “objectively reasonable” inclusion in the New Jersey policy as evidence it wasn’t as strong as Royal and others hoped.
Objective reasonableness is often seen as a high bar to clear in order to prove excessive force and task force members said there was subjectivity in any police officer’s decision making.
Instead of proportionality, law enforcement was pushing for a definition suggested by Wisconsin Professional Police Association Executive Director Jim Palmer. Palmer said he doesn’t think adding “proportional” would help and instead wanted the use of force definition to have more “meat on the bones” by clearly spelling out how officers should respond in certain situations.
Palmer said more clarity helps officers and the public understand what is or isn’t excessive force and allows officers to be held accountable if they step over the line.
“The easy thing to do, frankly, would be to say, fine, we’ll include proportional just like they’ve done in New Jersey with the objective reasonableness language, and it doesn’t do anything to inform the public or law enforcement officers as to what’s appropriate,” Palmer said. “I was trying to be thoughtful about that and come up with some specific criteria that would help identify and inform the public and inform an officer, as to when a use of force is appropriate, what are those criteria that somebody would consider.”