Red Flag Officers

Open PDF in Browser: Rachel Moran,* Red Flag Officers

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Gun violence and police misconduct are two of the most challenging public safety issues the United States faces today. Both gun control efforts and endeavors to reimagine policing are hotly contested and often difficult to enact. But one form of gun control has achieved comparatively widespread political support in the past few years: red flag laws. Red flag laws focus on preventing people who pose a significant risk of harm to themselves or others from accessing the guns they would use to cause that harm. Because their application is limited to people who pose a demonstrable safety risk, these laws enjoy more support than many other efforts at curbing gun violence.

This Article imagines how red flag laws can serve as a model for preventing unjustified police violence by those whom the Author coins “red flag officers.” Red flag officers are violence prone officers whose history of misconduct makes them a demonstrable public safety threat to the communities they police. While red flag laws were not written with police officers in mind, their purpose—protecting the public from people who pose a proven threat to safety—aligns with the goals of those who seek to protect communities from police violence. The Article begins by explaining red flag laws and then explores concerns regarding violence prone officers and the departments that enable them. It concludes with law and policy proposals drawn from red flag laws that could protect the public from red flag officers.

Introduction

Before Derek Chauvin committed perhaps the most notorious police murder of the twenty‑first century, he was the subject of twenty‑nine misconduct investigations during his nineteen years with the Minneapolis Police Department.^[1] On at least seven prior occasions—none of which resulted in discipline—Chauvin allegedly used excessive force by restraining people by their neck or kneeling on them.^[2] During one of these incidents, Chauvin choked a fourteen‑year‑old boy until he passed out; the force was so excessive that Chauvin later was convicted of a felony for willfully violating the boy’s civil rights.^[3] Despite this history of disturbing behavior, the Minneapolis Police Department did not discipline Officer Chauvin.^[4] Instead, they made him a field training officer responsible for supervising new recruits—two of whom were later sentenced to prison for helping Chauvin kill George Floyd.^[5]

Before Chicago Police Officer Jason Van Dyke shot and killed seventeen‑year‑old Laquan McDonald in 2014, Van Dyke was the subject of at least twenty civilian complaints and twenty use of force reports during his fourteen years on the police force, none of which resulted in any discipline.^[6] Van Dyke had also been sued at least twice for excessive force, with one lawsuit resulting in a $350,000 settlement for the plaintiff.^[7] Van Dyke was, based on civilian complaints alone, “in the worst 3 percent of officers” within the Chicago Police Department.^[8] A jury ultimately convicted Van Dyke of second‑degree murder and sixteen counts of aggravated battery with a firearm for killing Mr. McDonald.^[9]

Before Rocky Ford, Colorado, police officer James Ashby was sentenced to sixteen years in prison for murdering Jack Jacquez in 2014; Ashby had already been the subject of multiple internal affairs investigations for other misconduct.^[10] According to one complaint, when a gunshot victim flagged Ashby down for help, Ashby responded by threatening to fire a second bullet into the victim’s head.^[11] In another incident, Ashby allegedly brutally beat a man he had illegally arrested without probable cause.^[12] During a previous stint with a separate law enforcement agency, Ashby violated the department’s sexual harassment policy, verbally threatened a motel owner, attacked a person during a bar fight, and body slammed a woman.^[13] Just one week before Ashby murdered Jack Jacquez, he was accused of stomping on and choking a man suspected of driving while intoxicated after the man asked to speak with Ashby’s boss.^[14]

Across the United States, police officers kill approximately three people per day.^[15] That number has remained relatively steady for years but rose slightly in both 2022 and 2023.^[16] Some of these deaths occur at the hands of officers whose histories of violence and instability provided obvious warning signs that they presented a threat to public safety. Unfortunately, many police departments respond inadequately—if at all—to these warning signs.^[17] Instead, some departments embolden violence‑prone officers by ignoring their behavior or imposing minimal discipline for serious misconduct.^[18] Inadequate internal and external mechanisms for holding officers accountable enable dangerous officers to pose an ongoing threat to the public.^[19]

This Article offers a unique lens through which to examine both the dangers that violence‑prone officers present and possible solutions to those dangers: “red flag” laws. Red flag laws on their face have little to do with police officers. Rather, they create legal processes to prevent civilians with histories of violence or other concerning behavior from accessing weapons.^[20] The process is twofold. First, red flag laws allow petitioners—people with personal knowledge of the risk respondents may pose to themselves or others—to file petitions asking judges to prohibit respondents from using or possessing firearms.^[21] Second, they authorize judges, after a hearing and consideration of evidence, to issue protective orders prohibiting people at risk of committing future violence from possessing the weapons they would use to inflict that violence.^[22] Red flag laws are not without controversy because they authorize judges to restrict civilians’ access to guns based on concerns about future behavior.^[23] But, largely due to America’s epidemic of gun violence, they have grown dramatically in use and popularity in recent years.^[24]

To date, no scholar or court has discussed red flag laws as a model for curbing police violence. But their purpose—to protect the public from people who pose a demonstrable threat to safety—is notably consistent with the goals of those who seek to reduce police misconduct and protect communities from unnecessary police violence. To be clear, this Article does not claim that red flag laws as currently written are a panacea to police violence, nor were they intended to serve that purpose. Rather, this Article suggests that red flag laws are an overlooked but useful guidepost for addressing a similarly thorny challenge of protecting communities from violence‑prone officers. Namely, the laws are a helpful conceptual tool for identifying creative solutions to the trifold problem of violent officers, a fearful public, and police departments that ignore or enable problematic behavior by officers.

While much of current criminal law and policing scholarship labels itself as either abolitionist or reformist, this Article does not fit squarely within either paradigm.^[25] In many ways this Article both benefits from and espouses abolitionist ideals by proposing a significant reframing of power structures away from police and in favor of civilians. Equipping civilians with new tools to protect themselves from violent policing reimagines standard notions of how to advance public safety, which is at the center of the abolitionist project.^[26] In another sense, this Article focuses narrowly on changing the way both police departments and society respond to specific officers who pose the greatest threat of danger to public safety, and thus may strike some readers as reformist in nature. Although this Article focuses on addressing the problem of violence‑prone officers specifically, it should not be read as conceding that these officers are the sole cause of problematic policing, nor is it meant to suggest that protecting society from these officers will cure all policing concerns.

This Article proceeds in three parts. Part I begins with an introduction to red flag laws, describing their purpose, the history of their adoption, and their increasing popularity across the United States. Part I also discusses available data about how red flag laws have been employed in recent years and whether they effectively prevent violence.

Part II then transitions to the problem of unjustified police violence and the many factors enabling it. Section II.A first describes the prevalence of violence by police officers in the United States and the exceptional rates at which they kill people. It then discusses the effect this violence has on civilians, including the distrust and fear that police killings have sown, especially in communities of color. After exploring the extent of unjustified police violence and its effect on civilians, Section II.B turns to previous research from legal scholars and criminologists studying whether officers’ histories of misconduct, including violent behavior, can serve as a reliable predictor of future misconduct. Although the studies are not definitive, they almost universally suggest a correlation between past misconduct and the likelihood of future misconduct. Put another way, this research indicates that past misconduct by an officer, including past violence, should serve as a red flag for future misconduct by that same officer.

Section II.C then discusses growing evidence of mental health challenges among police officers, with a particular focus on the high rates of officers who have been diagnosed with or otherwise appear to suffer from post‑traumatic stress disorder. Section II.C describes how those challenges may exacerbate the dangers that officers who are already prone to violence pose to the public, particularly in high‑stress situations. Lastly, Section II.D addresses police departments’ poor track records of holding officers accountable for unjustified violence, supporting officers whose mental health challenges may impact their work, and otherwise protecting the public from dangerous officers.

After exploring concerns regarding violence‑prone officers and departments that enable this violence, the Article concludes in Part III by offering several law and policy recommendations. These recommendations extract lessons from red flag laws that could help prevent future violence by those this Article labels “red flag officers.” Part III first offers recommendations for internal changes police departments can make to prevent violence and enhance well‑being among their own officers. Part III then turns to two proposals for externally imposed changes to police departments. The first proposal offers a policy that would require police departments to temporarily remove officers who have been credibly accused of violence from public‑facing positions until those allegations are resolved. The final proposal is a law that in some ways mimics existing red flag laws but is tailored to the context of police violence. This proposed law would empower civilians to file petitions reporting red flag behavior by officers and authorize judges to disarm officers who pose a demonstrable threat to public safety.

 I.  Red Flag Laws: What They Are and How They Work

 A.  What Are Red Flag Laws?

Red flag laws are “risk‑based firearm seizure laws” that authorize law enforcement officers and other people specified by statute to file petitions asking judges to temporarily prohibit someone from possessing or accessing firearms.^[27] Red flag laws stem from the theory that gun violence is often foreseeable and that at least some people likely to engage in violent behavior display warning signs (colloquially known as red flags) of that violence ahead of time.^[28] Some evidence supports this reasoning: One study of mass shootings in the United States over a fifty‑year period revealed that at least 47 percent of mass shooters disclosed their plans ahead of time, and many others were “recognized to be high risk for committing violence before the events occurred.”^[29] A more condensed study of thirty‑four “public mass violence” incidents across the United States in 2019 concluded that, in at least two‑thirds of the attacks, the perpetrator made either explicit or implicit threats of violence before the attack.^[30]

As of 2024, twenty‑one states and the District of Columbia had enacted some version of a red flag law.^[31] Although the laws vary slightly in language, they all authorize judges to issue protection orders preventing people they determine pose a serious risk of violence from accessing or possessing firearms.^[32] These orders are typically called “extreme risk protection orders,” or ERPOs.^[33] They prevent the “flagged” individual—otherwise known as the respondent—from purchasing or possessing guns while the order is in effect.^[34]

A small minority of red flag laws only allow law enforcement officers to file petitions for protection orders.^[35] The majority authorize other people to file petitions, including, but not necessarily limited to, housemates or family members of the person they seek to bar from possessing firearms.^[36] Some states also allow medical or mental health professionals, co‑workers, school administrators, dating partners, and current or former legal guardians to file petitions for protection orders.^[37]

Every state with a red flag law allows petitioners to file ex parte petitions for emergency protection orders, but those emergency orders are very limited in time, lasting anywhere from a few days to at most three weeks.^[38] Before a judge can issue a longer‑term protection order, typically known as a “final” order, every state grants respondents a right to notice and a hearing where they can challenge the propriety of the protection order.^[39] If a judge issues a final protection order after notice and a hearing, that order typically lasts about one year and can be renewed upon fresh proof that the petitioner continues to pose a threat of violence.^[40]

When deciding whether to grant the protection order prohibiting access to guns, judges can consider a variety of evidence regarding the respondent’s past behavior. Such considerations include evidence of past violent acts, threats of violence, violations of previous restraining orders, and access to weapons.^[41] Some states require judges to make a finding that the person presents an imminent risk of danger to themselves or others, while other states require judges to determine whether the person poses a “likely” or “significant” risk of danger.^[42] Some states require judges to find clear and convincing evidence of risk before issuing a protection order,^[43] and others employ a preponderance of the evidence standard.^[44]

Most of these red flag laws were enacted within the past few years and, like many recent policing‑related laws, passed in response to high‑profile, potentially preventable tragedies. Before 2018 only five states had red flag laws, and at least three of those five laws were enacted after murders that garnered significant media attention.^[45] Connecticut passed the country’s first red flag law in 1999 after a state lottery employee with a history of concerning behavior slaughtered four of his bosses before turning a gun on himself.^[46] Indiana passed its red flag law in 2005 after a mentally ill man, from whom the police had previously confiscated and then returned multiple weapons, killed his mother, a police officer, and himself.^[47] California enacted its red flag law in 2016 after a young man whose family had called the police to report disturbing behavior killed six people and injured fourteen others before ending his own life.^[48]

Despite these early adopters, red flag laws did not gain widespread political attention until the February 2018 mass murders of students and teachers at Marjory Stoneman Douglas High School in Parkland, Florida. Nine additional states adopted red flag laws in 2018 alone, with seven more plus the District of Columbia adopting red flag laws since the Parkland tragedy.^[49] Many other state legislatures have considered red flag laws.^[50] While red flag laws certainly have their detractors, as Section I.B. discusses, they enjoy more popular support than many other gun control measures. According to a 2019 survey by APM Research Lab, 77 percent of Americans supported red flag laws, while only 13 percent strongly opposed such laws.^[51] Red flag laws likely enjoy this comparatively widespread support at least in part because they are narrowly crafted to limit gun access only to people who present a specific and significant threat of harm. Others have theorized that red flag laws may be popular because they empower ordinary people, rather than law enforcement agencies alone, to combat gun violence by voicing concerns about people who present particularized threats.^[52]

 B.  Legal Challenges to Red Flag Laws

So far, no appellate court has struck down a red flag law as unconstitutional, and multiple courts have rejected constitutional challenges to these laws.^[53] Critics of red flag laws typically argue that they violate either the Second or Fourteenth Amendments to the United States Constitution, or both.^[54] With respect to Second Amendment challenges, several state courts have rejected such claims on grounds that red flag laws impose reasonable, time‑limited restrictions on narrow groups of people found to pose a significant risk to public safety and do not restrict the rights of broad classes of people.^[55] In the context of a request for preliminary injunction, the federal district court for the District of Maryland also denied a Second Amendment challenge to Maryland’s red flag law, concluding that the law was tailored toward disarming only those people found to be dangerous to the public and legislatures throughout history “have consistently exercised the authority to disarm the dangerous.”^[56]

Although the United States Supreme Court has never opined on the constitutionality of a red flag law, in 2024 it did affirm that the government may restrict a person’s rights to possess firearms if they pose a demonstrable safety threat to others.^[57] In United States v. Rahimi, the Supreme Court addressed a Second Amendment challenge to a federal statute preventing people subject to domestic violence restraining orders from possessing firearms if a court finds that they present a credible safety threat to an intimate partner or child.^[58] The Court concluded that firearm laws enacted since the country’s founding “have included provisions preventing individuals who threaten physical harm to others from misusing firearms.”^[59] Therefore, preventing such people from legally accessing firearms did not unduly infringe their Second Amendment rights.^[60] Rahimi’s affirmation that states have the authority to prohibit people who pose safety threats from possessing weapons lends significant support to the notion that red flag laws are also reasonable restrictions on Second Amendment rights.

Courts have also rejected challenges to red flag laws made under the Fourteenth Amendment’s Due Process Clause.^[61] When the government is considering restricting a right, due process requires notice and an opportunity to be heard.^[62] Opponents of red flag laws argue that the laws lack sufficient process for (1) courts to decide whether a particular person presents such a risk of harm that they should lose their right to possess a gun and (2) respondents to defend against such claims.^[63] Due process challenges have thus far been unsuccessful largely for two reasons. First, the laws require petitioners to show, by at least a preponderance of the evidence, that respondents present a specific risk of harm.^[64] Second, the laws give respondents notice and process for refuting those claims before issuance of a final protection order.^[65] Scholars Joseph Blocher and Noah Levine reason that red flag laws will likely continue to survive constitutional scrutiny on both Second Amendment and Due Process Clause grounds because the laws apply narrowly in service of a significant public interest—they restrict the right to bear arms only for a limited class of people deemed to be a serious safety threat to themselves or others—and employ appropriate processes to avoid infringing that right without good cause.^[66]

 C.  Effectiveness of Red Flag Laws

Because most red flag laws are so new, data assessing their efficacy is still limited, but a growing number of studies suggest that red flag laws do prevent serious harm and death. At least two studies have focused exclusively on assessing these laws’ impacts on suicide rates, rather than homicides.^[67] One such early study, analyzing outcomes of Connecticut’s red flag law between 1999 and 2013, found that, while the law was used sparingly over its first seven years, its use increased approximately fivefold—from twenty to about one hundred protection orders per year—after the 2007 mass shooting at Virginia Tech.^[68] The study concluded that the 762 gun seizures in Connecticut likely averted approximately seventy‑two suicides.^[69] Another more recent study of red flag laws in four states also found that the laws are effective in preventing suicides but likewise did not attempt to study their effect on preventing homicides.^[70]

Other studies have attempted to assess the impact on homicides. One, using data through 2018 to assess the first five states that adopted red flag laws, concluded that the laws had no statistically significant effect on homicides, but did reduce gun‑related suicides by about 6.4 percent.^[71] According to that study, data from petitions for protection orders revealed that petitioners typically focused on concerns of suicide or self‑harm when requesting the protection order and the laws were accordingly “used most often to remove guns from individuals with apparent suicidal, rather than homicidal, tendencies.”^[72]

Three other studies suggest that red flag laws likely also have prevented homicides. The first, a preliminary assessment of limited data from red flag orders in California between 2016 and 2018, revealed at least twenty‑one cases where judges issued protection orders prohibiting access to weapons by people who either expressly declared their intent to commit a mass shooting or exhibited behavior suggesting that intent.^[73] A related study from the Violence Prevention Research Program at University of California‑Davis, analyzed three years of California red flag data and found that nearly 80 percent of red flag petitions alleged risk of harm to others while more than 25 percent involved threats of mass shootings.^[74] Courts granted restraining orders against people who had threatened to commit mass shooting in at least fifty‑eight cases.^[75]

A larger and more recent study analyzed red flag petitions and outcomes in six states using data through June 2020, focusing on petitions involving people who had threatened to commit mass shootings.^[76] The researchers found 662 petitions requesting protection orders against people who had threatened mass shootings, and noted that courts granted the protection orders in 84 percent of these cases.^[77] The authors concluded that the high rate at which judges agreed with petitioners about the risks respondents presented, coupled with evidence in the casefiles regarding violence or criminal behavior by the respondent, confirmed that the threats were often “credible and compelling,” and that red flag laws serve an important function of protecting the public from people who present realistic threats of harm.^[78]

In addition to formal research studies, some states have also publicly reported data—both anecdotal and statistical—regarding uses and outcomes of their red flag laws. In Vermont, a judge employed a red flag law just one day after the law went into effect to prevent an 18‑year‑old male who kept an “active shooter” diary, in which he reportedly recorded plans to kill people at a local high school, from accessing guns.^[79] Just three months after the Maryland legislature passed its red flag law in late 2018, the state reported that judges had granted protection orders against nearly 150 people—representing approximately 50 percent of filed petitions—and that at least four of those cases involved significant threats of violence against schools.^[80] In Washington, a judge issued a protection order removing twelve guns from a man who made explicit threats to commit mass shootings at a synagogue and a school.^[81] Five years after Florida passed its red flag law in the wake of the Parkland murders, the state reported that judges had granted more than eight thousand protection orders.^[82] A sampling of those cases involved a father who threatened to “shoot everyone” at his child’s school, a man who fired multiple gunshots into the street to “blow off steam,” and a woman who waved a gun at another mother after a dispute between their two daughters.^[83]

Haunting examples also exist of recent mass murders in states without red flag laws, committed by people who had displayed obvious warning signs for future violence. A 24‑year‑old man in Ohio who used an AR‑15 to murder nine people in 2019 had a history of making violent threats and a hit list of possible victims.^[84] The man who killed twenty‑six people during a church service in Sutherland Springs, Texas, had previously been convicted of domestic violence, engaged in a standoff with police, and run away from a mental health facility where he was receiving treatment.^[85] Weeks before a racist 21‑year‑old White man slaughtered twenty‑three people of actual or perceived Hispanic descent in an El Paso Walmart in 2019,^[86] the shooter’s mother called the police department to express concern that he was too young and immature to own an AK‑style firearm.^[87] The teenager who murdered seventeen people at Marjory Stoneman Douglas High School had a lengthy and well‑documented history of violent threats, including telling people he would “shoot up the school”^[88] and posting online that he was “going to be a professional school shooter.”^[89] None of those states had red flag laws at the time.

In conclusion, although most red flag laws are still relatively nascent, early data suggests that they have been effective in both giving civilians an outlet to report people who pose a serious risk of future violence and in equipping judges with a new tool to protect the public from people whose behavior raises warning signs about the danger they may pose to others. With these promising developments in mind, Part II of this Article now turns to addressing a different subset of people whose behavior at times poses an unnecessary threat to public safety: law enforcement officers.

II.  Police Violence and Inadequate Accountability

While Americans are deeply divided in their perspectives on policing, nearly everyone values personal safety and safe communities.^[90] Most Americans also agree that if law enforcement officers pose a serious risk of safety to the communities they are supposed to be serving, they should not be allowed to work in law enforcement.^[91] While many law enforcement officers probably do not pose a serious threat to public safety, none should. And yet, many do.

The following Sections lay the groundwork for this Article’s discussion of red flag officers by providing data on existing patterns of police violence and ineffectual accountability systems. Section II.A describes the high rates of police killings in the United States, especially as compared to police violence in other countries. Section II.B reviews existing scholarly literature assessing whether past misconduct by police officers, including unjustified violence, serves as a red flag for future misconduct. Section II.C details growing evidence of serious mental health concerns among some police officers and imagines how those challenges may present an additional threat to public safety. Finally, Section II.D explains how police departments have historically responded inadequately to officers whose behavior poses a serious safety threat to the communities they are supposed to protect.

 A.  Prevalence of Preventable Police Killings

Police officers across the United States kill approximately three people per day.^[92] That number has remained relatively steady for years and rose slightly in both 2022 and 2023.^[93] It dramatically exceeds the rate of killings by police officers in other countries.^[94] Police officers in the United States kill people at nearly five times the per capita rate of their counterparts in Canada, twenty‑two times that of Australian officers, and forty times that of officers in Germany.^[95] Some of these distinctions can be explained by differences in rates of violence and gun ownership, since the United States has higher rates of both gun violence and ownership than most other countries.^[96] But the disparities in rates of police killings across these countries are even more drastic than those in rates of homicides generally.^[97] Given the exceptionally high rate at which police officers in the United States kill people, it is crucial to assess whether those killings are legally justified.^[98]

Some police killings are justified, and even heroic, such as when Nashville police officers Rex Engelbert and Michael Collazo ran toward and killed a school shooter who was murdering children and staff at an elementary school in 2023.^[99] But many are not.^[100] Patric Ferguson was on duty as a Memphis police officer when, in 2021, he allegedly used his squad car to abduct and kill Robert Howard, the boyfriend of a woman Ferguson had previously dated.^[101] Before Pike County, Ohio, Sheriff’s Deputy Joel Jenkins killed Robert Rooker during a high‑speed chase, he had previously been terminated from a different law enforcement agency after striking an elderly man with his squad car at a crosswalk.^[102] Former Minnesota State Trooper Shane Roper had been involved in at least four prior crashes because of his own excessive speed or inattentiveness before he killed 18‑year‑old Olivia Flores while allegedly driving at twice the speed limit without his emergency lights activated.^[103] Demetrius Haley, one of the police officers facing murder charges for his role in the vicious beating death of Tyre Nichols after an illegal traffic stop in early 2023, had repeatedly been accused of excessive force in past incidents before he allegedly helped murder Nichols.^[104] One of the prior incidents involved force against an inmate who suffered a fractured skull and perforated eardrum, but the correctional agency employing Mr. Haley at the time rejected the allegation of excessive force as “unsubstantiated.”^[105] When Houston police officers shot and killed Rhogena Nicholas and Dennis Tuttle during a botched no‑knock raid of their home, the officers were relying on false evidence manufactured in a warrant application by Police Officer Gerald Goines.^[106] Goines, it turned out, had been lying in search warrants for years, and multiple people had filed complaints against him before his lies led to the deadly raid where officers killed Nicholas and Tuttle.^[107]

These killings were all avoidable, and were it not for the violent acts of these officers, Robert Howard, Robert Rooker, Olivia Flores, Tyre Nichols, Rhogena Nicholas, and Dennis Tuttle may still be alive. These stories are, of course, anecdotes, representing a tiny percentage of the thousands of people officers in the United States have killed in the past decade. But these stories matter: They are embodied illustrations of the toll that tolerating police misconduct takes on ordinary civilians.

These stories also matter because statistical data assessing precisely what percentage of police killings each year are illegal or preventable is impossible to collect for at least four reasons. First, the federal government relies on self‑reporting by law enforcement agencies to track police killings, and that self‑reporting is unreliable.^[108] Some agencies do not report police killings at all, let alone identify whether they were justified, and official reports by government agencies tend to undercount police killings annually by the hundreds.^[109] These agencies also have reputational and monetary incentives to label the killings as justified.^[110] Agencies can be reluctant even to investigate potential crimes committed by police officers.^[111] As Phillip Stinson has noted, “law enforcement officers are generally exempt from law enforcement,” meaning that police departments prefer not to investigate potential crimes by fellow police officers.^[112] This reluctance makes data on potential crimes by officers less likely to exist.

Second, medical examiners and coroners have historically undercounted police killings, typically by misclassifying deaths as accidental or undetermined when they were the product of police homicides.^[113] Investigative journalist Radley Balko has written about the phenomenon of medical examiners who conceal police homicides by classifying the deaths of people who were killed by police as “undetermined,” therefore heading off any investigation into whether police misconduct caused the death.^[114] Medical examiners have also used controversial diagnoses like “excited delirium”—which the American Medical Association does not recognize as a legitimate diagnosis—to exonerate officers in cases where people died under police restraint by claiming that they died of cardiac arrest incidental to the restraint.^[115] When medical examiners fail to identify a death as homicide caused by police, no government agency will collect data about whether the homicide was legally justified.^[116]

Third, prosecutors rarely charge officers with homicide‑related crimes, and thus even killings that medical examiners properly classify as homicides by police officers are not formally identified as illegal killings. Only a tiny percentage of police killings in the United States result in criminal charges against officers: less than 2 percent over the past ten years.^[117] Prosecutorial bias and lack of political interest in prosecuting police officers has likely played a role in these low percentages, so a prosecutor’s decision not to pursue charges is not a reliable indication of whether the conduct was justified.^[118]

Fourth, even metrics that may be available, like civil lawsuits won against officers or settlements reached, are not definitive indicators of whether a police killing was legal because lawsuits against police officers are notoriously difficult to pursue. Laws and policies that defer to officers’ beliefs about when to use deadly force make challenging that use of force difficult even in the context of preventable killings.^[119] Doctrines like qualified immunity protect even officers who engage in illegal violence, as long as their illegality was not “clearly established.”^[120]

Despite the many barriers to collecting precise data about police killings, there are reasons to believe that a substantial percentage of police killings every year are legally unjustified or at least preventable. These reasons include investigations by both Department of Justice (DOJ) officials and journalists that found high rates of unjustified killings, as well as racial disparities in the killings which suggest that racial biases or fears may have played a role in some killings.

To begin, on the relatively rare occasions the federal government has conducted investigations into police use of deadly force, it has repeatedly found that officers regularly use illegal deadly force.^[121] One example comes from the DOJ investigation into the Albuquerque Police Department.^[122] DOJ investigators reviewed all fatal police shootings over a four‑year period and concluded that, although none of the officers who killed people were criminally prosecuted, the majority of the killings were unjustified.^[123] One of the cases involved an officer who shot and killed an unarmed person while working as a state trooper, and whom the Albuquerque Police Department hired after that shooting.^[124] The officer went on to kill another unarmed person who the DOJ concluded posed no immediate threat to the officer or others at the time the officer killed him.^[125]

The DOJ has reached similarly disturbing conclusions after investigating other police departments. In their 2023 report on their investigation into the Minneapolis Police Department, DOJ officials found that Minneapolis officers regularly beat, shot, restrained, and otherwise used deadly force on civilians without first assessing whether the force was needed.^[126] Similarly, a DOJ report into the Louisville Metro Police Department concluded that Louisville officers routinely used force disproportionate to the threat a civilian posed, including dangerous neck restraints and unsafe use of tasers and biting dogs.^[127] One federal prosecutor who has spent her career prosecuting law enforcement officers for civil rights violations recently opined that unjustified violence by law enforcement officers is “not rare.”^[128] She also noted that many officers who abuse their authority do so with confidence that their wrongdoing will never be exposed, largely because investigators and prosecutors too readily believe officers’ accounts of events.^[129]

Journalists’ investigations have also uncovered many officer killings of questionable legality. A 2021 investigation by the New York Times found that, between 2015 and 2020, officers conducting traffic stops killed at least four hundred drivers or passengers who were unarmed and stopped for minor offenses.^[130]

Racial disparities in the rates police officers kill unarmed Black and Hispanic people suggest that racial bias or racialized fear may also inappropriately factor into police shootings.^[131] One study of fatal police shootings in the United States showed that, between 2015 and 2020, police were three times more likely to shoot and kill unarmed Black people than unarmed White people, and 1.5 times more likely to kill unarmed Hispanic people than unarmed White people.^[132]

 B.  Studies Assessing Correlations Between Past and Present Officer Misconduct

One seemingly obvious method to reduce unnecessary police violence is to identify which officers are particularly likely to engage in it, and either equip them to change their behavior or remove them from positions where they have opportunities to harm civilians. This Section discusses previous research and literature studying the relationship between past and future misconduct by police officers. These studies attempted to assess whether past misconduct by police officers is a reliable indicator of future misconduct, such that officers’ past misconduct should serve as a warning to their employers that they present a heightened risk of future misconduct.

Multiple studies of police officer misconduct have concluded that an officer’s prior history of misconduct is a reliable indicator that the officer is more likely than their peers to engage in future misconduct.^[133] These studies have important limitations as they relate to this Article. Most of the studies did not focus specifically on police violence, and only one centered its analysis on officers who used deadly force.^[134] The studies employed a wide variety of metrics for what qualified as prior misconduct. The studies also did not necessarily account for the specific roles that officers played within their agencies and how that might impact an officer’s alleged misconduct history. (For example, an officer who serves on a rapid response team or engages in regular street patrol may be more likely to incur civilian complaints than an officer who rarely interfaces with the public.)

While the studies cannot—and do not claim to—definitively predict which officers are most likely to engage in unjustified violence, they do collectively provide support for the idea that officers’ histories of problematic behavior should serve as red flags to their employers that the officer may be more likely than others to engage in future misconduct. The studies discussed in this Section fall into three categories: (1) studies that attempted to assess whether previous complaints of on‑duty misconduct are indicators of likely future misconduct, (2) studies assessing the relationship between misconduct before being hired as a police officer and misconduct as an officer, and (3) studies focusing on whether officer behavior within a particular department is indicative of future misconduct in the same department.

As to the first category, several of the studies analyzed whether previous complaints of on‑duty misconduct could serve as indicators of likely future misconduct. For example, one major study of more than three thousand New York Police Department officers between 1976 and 1995 measured officers who were fired from the department for misconduct against those who remained employed with the department or left voluntarily.^[135] It revealed that officers who were involuntarily terminated from the police department for serious misconduct were “significantly more likely” to have received prior civilian complaints of misconduct before termination than officers who were not terminated.^[136] The authors concluded that civilian complaints are early indicators of misconduct that “give the department an opportunity to identify problem officers quickly” and “minimize the damage” these officers can cause.^[137] In that vein, the authors also suggested that civilian complaints, particularly early in an officer’s career, should “serve as red flags that should generate departmental investigation, increased supervision and, possibly in some cases, dismissal from the department.”^[138]

A more recent 2019 study assessing the relationship between civilian complaints and future misconduct examined more than fifty thousand civilian allegations claiming misconduct by Chicago police officers.^[139] The researchers found that officers with a “moderate” number of misconduct complaints were no more likely to engage in serious future misconduct than those with no complaints.^[140] However, officers with high numbers of misconduct complaints—particularly those in the top 5 percent of complaints—were significantly more likely to be associated with serious future misconduct as measured by civil lawsuits resolved in favor of the complainant.^[141] The researchers concluded that civilian allegations have “significant value in predicting serious misconduct.”^[142]

A third study of officer misconduct used data analyzing both civilian complaints and officer tenure within police departments to assess which officers are most likely to commit serious misconduct.^[143] The study concluded that so‑called “problem officers” with significant histories of police misconduct “represent an outsized share of high‑profile incidents of misconduct.”^[144] According to the author, Max Schanzenbach, evidence increasingly suggests that “problem officers can often be identified through civilian complaints, supervisor reports, off‑duty misconduct, and civil rights litigation.”^[145]

In 2024, researchers affiliated with the University of Chicago Crime Lab also analyzed civilian complaint data within the Chicago Police Department and concluded that police misconduct has “some predictable structure.”^[146] Specifically, their analysis indicated that the highest risk officers (those in the top 1 percent of risk distribution) were 6.7 times more likely to engage in misconduct than the “average officer.”^[147] They also found that the quantity of complaints mattered more than severity: That is, the most significant indicator of risk was an accumulated pattern of prior allegations, rather than a single but especially serious allegation.^[148]

The second category of studies assessed the relationship between misconduct before being hired as a police officer and misconduct as an officer. A study from the 1990s, assessing 218 law enforcement officers from thirteen agencies across the southeastern United States, found that officers with histories of problematic behavior before their law enforcement employment began—such as poor performance in other jobs, drug use, or criminal activity—were statistically more likely than officers without such histories to engage in on‑duty misconduct resulting in discipline.^[149] The on‑duty misconduct involved a wide range of behavior including using excessive force, using racial slurs, having sex with civilians while on duty, driving recklessly, lying, and otherwise violating agency policies.^[150] The study concluded that for law enforcement candidates “[p]ast dysfunctional behavior predicts future dysfunctional behavior.”^[151]

Another study published in 2004, assessing approximately two thousand police officers in the Philadelphia Police Department spanning seventeen police academy classes, used background files, police academy records, and other personnel files to assess which previous behavioral incidents were associated with “future behavioral or disciplinary problems as a police officer.”^[152] The study found that officers who, among other factors, had been the subject of military discipline before they joined the police department, used deception in their polygraph exam, or had previously been arrested were more likely to incur complaints for excessive force after they became officers.^[153] The study also found that officers who had been arrested, charged with a crime, or subjected to military discipline were more likely to be “involved in shooting incidents” during their time in the police department.^[154] The authors concluded that “past indicators of behavior are excellent predictors of future behavior.”^[155]

In 2009, the Los Angeles County Office of Independent Review conducted an assessment of background check procedures and investigations for applicants to the Los Angeles Sheriff’s Department (LASD).^[156] The Office of Independent Review found numerous examples of applicants with previous histories of misconduct who were hired anyway and went on to commit new misconduct resulting in their termination from the LASD.^[157] One applicant had been terminated from a previous police department after five complaints related to excessive force discourtesy; after the LASD hired him, he demonstrated “anger management” problems, including “blow[ing] up at others,” yelling at inmates without provocation, and throwing his shoe at an incarcerated person.^[158] Another had a history of fighting and a restraining order issued against him after one altercation; after the LASD hired him, he was criminally charged with felony assault.^[159] Although this assessment was not a formal academic study and did not compare which officers are statistically most likely to engage in misconduct, it did find multiple examples of officers with histories of misconduct from other jobs going on to reoffend.^[160]

Lastly, the third category of studies focused on officer behavior within a particular department as indicative of future misconduct in the same department. A study published in 2008, examining data collected on three hundred officers from the Riverside County, California, Sheriff’s Department who had been involved in on‑duty shootings, found that officers who had previously shot someone were “significantly more likely” to shoot again than officers with no history of shootings.^[161] The authors concluded that an officer’s previous history of involvement in shootings was a “very strong predictor of future shootings.”^[162] Of the nine studies of officer misconduct discussed in this Section, the Riverside County study is the only one to focus exclusively on police use of deadly force.

Another study used data across six years from 2009 to 2015 and from more than 1,800 officers in the Charlotte‑Mecklenburg, North Carolina, Police Department, to assess which police officers are most “at risk of adverse events.”^[163] The study defined “adverse events” to include incidents related to officer use of force, pursuits, searches, injuries, accidents, and other complained‑of behavior, excluding “less egregious” complaints such as abuse of sick leave.^[164] Within this definition, the authors assessed only those incidents which an internal affairs unit had investigated and decided that the officer’s conduct was not justified or preventable, or that the complaint was otherwise sustained.^[165] With these parameters in place, the authors found that a “small minority of officers account for the majority of adverse events,” including excessive force and other interactions resulting in civilian complaints.^[166] They ultimately concluded that officers with histories of misconduct were “likely to engage in another such event in the future.”^[167]

Outside the United States, a study of approximately thirty‑five thousand officers and staff within the London Metropolitan Police Department between 2011 and 2014 found that officers with histories of misconduct were likely to negatively influence their colleagues, such that the officers’ presence “consistently increased the likelihood that those around them would be accused of bad behavior.”^[168] The researchers concluded that “deviant behavior” spread through socialization among officers, and that officers surrounded by peers with histories of misconduct were more likely to incur misconduct allegations of their own.^[169] While this study did not assess whether past misconduct serves as a warning sign for future misconduct by the same officer, it provides yet another basis for concern about officers with histories of misconduct: They exacerbate misconduct by other officers within the department.^[170]

These studies collectively indicate that histories of misconduct—both misconduct prior to hiring an officer and misconduct while an officer—are useful predictors of which officers may engage in future misconduct. Although the studies are certainly not comprehensive and more research specifically focused on police violence predictors would be welcome, this research gives credence to the idea that an officer’s history of misconduct is a meaningful red flag for future misconduct, potentially including deadly force or other unjustified violence.

 C.  Officer Mental and Behavioral Health Concerns that May Exacerbate Violence

Another understudied potential red flag for future violence is officer mental and behavioral health. This is a sensitive area of study, as mental health concerns in particular are often stigmatized and sometimes unfairly equated with an increased risk of violence.^[171] While generalizations about mental health and violence are problematic, the converse is also true: Ignoring potential correlations between specific types of mental health challenges and the behaviors those challenges may provoke is also dangerous. For police officers specifically, challenges related to post‑traumatic stress disorder (PTSD) are understudied. Police officers report more work‑related stress than most professions, and researchers have found strong evidence that PTSD is more prevalent among police officers than the average population.^[172] Although more data is needed in this area, one pilot study of ninety‑two randomly selected officers in the Buffalo, New York, Police Department between 2001 and 2003 assessed PTSD symptoms among those officers, and found that 31 percent had symptoms consistent with moderate or severe PTSD.^[173] A more recent national survey of 1,355 law enforcement officers in August 2020 showed that 47 percent of the officers screened positive for PTSD—more than nine times that of the national average.^[174] These unusually high results may be skewed because the survey tested only for symptoms the officers experienced during the month preceding the survey and was conducted during an unusually volatile summer for law enforcement officers: after the murder of George Floyd.^[175] Nonetheless, the numbers are concerning.

No definitive data proves (or disproves) a direct relationship between officer mental health issues and violence against civilians, and certainly not everyone who suffers from PTSD engages in violent behavior.^[176] However, the symptoms of PTSD are very concerning when manifested in people whom we arm with weapons and rely on to respond calmly to stressful encounters. Officers with PTSD experience multiple symptoms that could impact their ability to respond safely to potentially dangerous situations, including hypervigilance, aggression, high anxiety, over‑reactivity, “exaggerated startle response,” and lack of psychological calm.^[177] People with PTSD are more likely to act aggressively when not appropriate and to misperceive threats where they do not exist.^[178] Other common symptoms of PTSD include angry outbursts, impulsivity, recklessness, and intense psychological or emotional distress.^[179]

Multiple research studies have shown that PTSD correlates to increased likelihood of engaging in violent behavior.^[180] One study of more than one thousand United States military veterans who had returned from deployments to Iraq and Afghanistan found that 9 percent of the veterans admitted engaging in “severe violence” in the previous year, and more than one‑quarter of the respondents admitted to acts of “other physical aggression.”^[181] The veterans who had been diagnosed with PTSD had significantly higher rates than their counterparts without PTSD of both severe violence (20 percent of those with PTSD, versus 6 percent of those without) and physical aggression (48 percent of those with PTSD, versus 21 percent of those without).^[182]

Besides PTSD, several studies suggest that police officers in the United States also abuse drugs and alcohol at higher rates than the general population.^[183] Substance use can lead to poor decision‑making, increased risk‑taking, and violence.^[184] Some officers have killed people while intoxicated.^[185]

Given that police officers in the United States are frequently tasked with responding—usually armed—to potentially volatile situations with civilians, poorly managed mental and behavioral health concerns can make these officers an increased threat to the civilians they encounter. Mihailis Diamantis has argued that “the poor state of officers’ psychological wellbeing is literally a matter of life and death” to civilians who encounter these officers during a traffic stop, search, or other high‑stress situation.^[186] Similarly, a psychiatrist who studies police officer behavior has theorized that some police officers who engage in unjustified violence may do so as a result of untreated mental health disorders.^[187] The DOJ has also warned that providing officers necessary mental health support is critical to ensuring that “officer stress and fatigue do not contribute to constitutional violations.”^[188] The 2024 Chicago Crime Lab study of complaints against Chicago police officers also found a correlation between on‑ and off‑duty misconduct, which led researchers to hypothesize that “efforts to prevent on‑duty misconduct might benefit from interventions that not only directly target job‑related risk factors, but target off‑duty risk factors like trauma or substance abuse as well.”^[189]

In summary, officer mental health concerns are frequently overlooked, understudied, and potentially significant red flags for unjustified violence. This does not mean that every officer with PTSD or a substance abuse disorder should be suspended from work or removed from high‑stress positions that may present potential danger to the officer or public. Rather, this Article calls for increased awareness of such health concerns and attention to how they may impact officers and public safety. Law enforcement agencies should, for example, require mental health evaluations as a routine aspect of both hiring and contract renewal processes. They should also provide regular access to affordable mental health support for all personnel. When an officer’s behavior becomes a topic of concern, supervisors should consider whether mental health concerns may be fueling that behavior and may, in appropriate cases, recommend or even require counseling or treatment as a condition of employment.

The following Section describes systemic concerns with how law enforcement agencies respond to red flag officers: Those whose history of misconduct, whether or not associated with mental health concerns, makes them a potentially significant safety risk to the public. Section II.D discusses systemic problems with both the misconduct assessment and discipline process and with the support systems agencies provide (or do not provide) for officers struggling with mental and behavioral health.

 D.  Ineffectual Accountability and Support Systems that Enable Violence

Given the power that police officers have to both protect and threaten life, one might imagine that police departments would be proactive about tracking and responding to early indicators of officer misconduct to ensure they do not employ officers who pose a threat to public safety. But in many jurisdictions the opposite is true. Police misconduct has a “long and unfortunate history in the United States.”^[190] Many police departments have allowed misconduct to fester both by failing to prevent misconduct from happening and by declining to hold officers accountable when it does happen.^[191] In most law enforcement agencies, a small percentage of officers are responsible for a high percentage of misconduct.^[192] Despite substantial evidence that prior misconduct is a red flag for future misconduct,^[193] many police departments continue to employ officers with serious histories of misconduct and do little to prevent those officers from potentially harming civilians again.

Several media outlets have exposed problems with police departments tolerating misconduct within their ranks. A Wall Street Journal investigation in 2016, for example, found hundreds of officers across the country who remained employed despite having been charged with or convicted of crimes, including some who pled guilty to weapons offenses that endangered other people.^[194] In 2018, BuzzFeed News released a cache of disciplinary records for New York Police Department officers that included at least thirty‑eight officers in a four‑year period who kept their jobs after findings that they used excessive force.^[195] The list included officers who were suspended for just a few days or lost limited vacation time after, for example, striking someone on the head and threatening to kill them, and using excessive force on schoolchildren.^[196] Another officer who remained in the department had an excessive force history that included punching a man and later explaining his conduct in a way that a judge found not believable.^[197] That same officer struck a man in the head with a police baton severely enough that the man needed stitches and held a handcuffed prisoner down while another officer stomped on the man’s head.^[198] In 2019, USA Today and the Invisible Institute partnered on a study of more than eighty‑five thousand investigations into police misconduct.^[199] The analysis found nearly 2,500 officers who had been investigated on ten or more allegations of misconduct, and approximately twenty officers who stayed employed despite one hundred or more allegations.^[200]

After George Floyd’s murder, the Minnesota Reformer published an exposé of the Minneapolis Police Department’s discipline policies, noting that only 2.7 percent of complaints about police misconduct had resulted in any discipline against officers in the six years preceding Mr. Floyd’s murder.^[201] In addition to Derek Chauvin’s many misuses of force that went undisciplined, other officers who received little or no discipline included one who knelt on a woman’s back until she couldn’t breathe, another who had used excessive force on multiple occasions before eventually kicking a suspect in the face and breaking his jaw, and a supervisor who lied about her subordinate officers hitting someone with a squad car.^[202] In 2022, the Washington Post produced an in‑depth investigation into municipalities paying large sums of money to settle repeated excessive force lawsuits against the same small group of officers.^[203] One Detroit Police Department officer remained on the force despite the city paying settlements in at least ten lawsuits alleging excessive force or other civil rights violations by the officer, including one where he shot and killed a dog while executing a search warrant on the wrong house.^[204] Another officer, in Prince George’s County, Maryland, had been the subject of four lawsuits alleging illegal assaults and illegal entry; the officer was later criminally charged with assault after allegedly beating a driver during a traffic stop, but was acquitted after trial.^[205]

For years, the media outlet Open Vallejo has conducted a lengthy investigation into multiple fatal and non‑fatal shootings by Vallejo Police Department officers.^[206] According to Open Vallejo, as of 2019 nearly 40 percent of the roughly one‑hundred‑officer department had been involved in at least one shooting, and nearly one‑third of the officers had participated in more than one shooting, with some committing four or more.^[207] In 2019, a whistleblower in the department was fired after reporting that many of the officers who had been involved in fatal shootings participated in a “badge‑bending” ritual where they commemorated the killings by bending the tips of their police badges.^[208]

Legal scholars have also expressed concern about police departments and policing culture that routinely fail to weed out violent misconduct by officers. Barbara Armacost has mourned “overly aggressive” policing culture that “facilitates and rewards violent conduct” by officers.^[209] Armacost noted the case of Jon Burge, a Chicago police sergeant who, along with many other officers, systematically tortured dozens of Black men over a multi‑decade period.^[210] Although multiple detectives were credibly implicated in the torture scheme, only two were ever disciplined, no criminal charges were filed, and many of the torturers retired with full benefits.^[211] Similarly, Devon Carbado has warned that current police culture permits and even fosters violence by officers when leaders do not carefully review and investigate excessive force claims.^[212] Carbado reasoned that the less police departments reliably deter violence by their officers, “the less likely [officers] are to exercise care with respect to when and how they employ violent force.”^[213]

Vida Johnson and Jamie Kalven have also documented problems with police departments tolerating explicit racial bias among their officers.^[214] Racial bias is not simply a matter of treating certain people disrespectfully; it may be one of the reasons why officers kill unarmed Black people at a much higher rate than they kill unarmed White people.^[215] A 2021 National Public Radio review of 135 deadly police shootings of unarmed Black people showed that several of the officers who killed people had been convicted of crimes while on the police force, including battery and obstructing justice, but kept their jobs.^[216] Multiple others had previously violated departmental policies, and one had been fired and rehired three times by the same department.^[217]

Collectively, this research from journalists and scholars demonstrates that law enforcement agencies have a serious problem with allowing misconduct to go unchecked within their departments. Their reasons for doing so vary. Some law enforcement administrators are openly biased against the communities they ostensibly serve and either actively encourage violence toward civilians or are apathetic when confronted with such violence. A recent investigation into the Rankin County, Mississippi, Sheriff’s Department illustrates this concern.^[218] In 2023, five White former Rankin County sheriff’s deputies were convicted of federal and state crimes after the deputies broke into the home of two Black men and tortured them.^[219] A subsequent investigation revealed that these crimes were the tip of the iceberg: Rankin County deputies had been brutalizing civilians for at least the past two decades, and at least fifty people came forward claiming to have experienced or witnessed torture by Rankin County deputies.^[220] Physical evidence, particularly mugshots of severely injured people shortly after arrests by Rankin County deputies, supported these claims.^[221] Many witnesses said they had reported the misconduct to the sheriff, only for the sheriff to ignore their claims.^[222] Investigators concluded that the violence was “neither confined to a small group of deputies nor hidden from department leaders.”^[223]

My own earlier scholarship has detailed the tactics some police departments use to actively deter civilians from reporting police misconduct and the ways departments fail to investigate misconduct or investigate in a biased manner intended to exonerate the officers.^[224] These tactics include refusing to accept civilian complaints, declining to answer questions about how to file a complaint, and even actively harassing people who do file complaints.^[225]

Other police departments may not actively deter misconduct complaints, but either by indifference or understaffing, do little to prevent unjustified police violence. Some departments accept complaints but never investigate them.^[226] Others resolve nearly every complaint in favor of officers.^[227] An early 2000s study of misconduct complaints and disciplinary data within the Chicago Police Department revealed that investigators sustained 1 percent of civilian complaints alleging abuse by Chicago officers.^[228] The authors concluded that this lack of discipline allowed officers to “perpetrate abuse without fear of consequence.”^[229] In Cleveland, internal affairs officers tasked with investigating police misconduct admitted that their goal was to make the accused officers look as good as possible.^[230]

The DOJ’s recent investigation into the Louisville, Kentucky, Police Department revealed that officers regularly use unreasonable force, but supervisors conduct only perfunctory reviews, sometimes misrepresent facts that suggest officers’ force was unjustified, and fail to report or investigate even potentially deadly force.^[231] Similarly, DOJ investigators in Minneapolis found that police officers routinely used excessive force, and the department frequently failed to investigate in a timely manner, if at all.^[232] Oversight bodies failed to investigate officers who slammed a woman into the curb with no legal basis, kicked a man in the stomach, and knocked a compliant man to the ground.^[233] Complaints against all those officers were dismissed.^[234]

On other occasions police departments investigate officer misconduct, but then impose minimal or inconsistent discipline that does little to deter future misconduct.^[235] The DOJ’s investigation into the Louisville Police Department concluded that supervisors regularly decline to impose appropriate discipline without adequately documenting their reasons, and officers “do not face meaningful consequences and engage in repeated violations.”^[236] One Louisville officer, who was eventually sentenced to two years in prison for beating a peaceful kneeling protester in the head with a baton, had previously been investigated at least nine times for alleged misconduct and had dozens of documented uses of force leading up to his crime, including punching a handcuffed man in the face and throwing a handcuffed teenager onto a concrete ground.^[237] The police department imposed no discipline for either of those violent incidents, and the officer remained on the force despite at least four findings of misconduct.^[238] Minnesota Department of Human Rights investigators similarly found that the Minneapolis Police Department “inconsistently and irregularly issues officers discipline even though . . . incidents of police misconduct are prevalent.”^[239] Recent surveys of police officers themselves reveal that many officers believe their departments impose discipline unfairly and inequitably, and that departments fail to hold poorly performing officers accountable.^[240]

Even when police departments have tools like early warning systems available, they routinely underutilize those tools. Early warning systems are internal software programs designed to alert supervisors to officers whose behavior serves as a red flag for future misconduct.^[241] Although early warning systems vary somewhat in structure, their essential function is to track detailed information about officers—such as uses of force, civilian complaints, lawsuits filed against an officer, disciplinary action taken, and other potential warning signs of misconduct—and compile it in a database that administrators within the police department can easily access and assess.^[242] Early warning systems have been around for nearly forty years and were originally conceived of as a key tool for helping police departments address misconduct within their own agencies.^[243]

While many people initially held out hope that early warning systems would play a significant role in reducing police misconduct, they have had minimal discernible effect on police misconduct thus far.^[244] A study of Chicago police officers in the early 2000s revealed that nearly 90 percent of officers with repeated complaints against them were not even identified in the city’s early warning system, and some officers who had amassed more than fifty complaints were not in the system.^[245] More than ten years later, the Chicago Police Department did not have a single officer enrolled in its early intervention system.^[246] Another review of early warning systems by Joanna Schwartz in 2010, analyzing data from twenty‑six law enforcement agencies across the United States, revealed that many agencies with early warning systems either did not invest sufficiently in their systems to robustly track misconduct data or analyzed the data in a biased way that ignored the likelihood of future officer misconduct.^[247] In Albuquerque, the police department used an early warning system but employed such absurdly high thresholds for flagging officers that even officers with multiple red flags for misconduct were not triggered in the system.^[248]

While much of this culture of unaccountability appears to be the result of apathy, indifference, or understaffing on the part of police administrators, lawyers and lawmakers contribute to the problem by imposing unnecessary obstacles to officer accountability. Rachel Harmon has noted that civil service rules making police officer discipline difficult and costly likely affect law enforcement administrators’ willingness to discipline or terminate problematic officers.^[249] Similarly, Law Enforcement Officer Bills of Rights or union contracts impose substantial barriers to administrators wishing to fire officers.^[250] Arbitrators sometimes overturn police department decisions to terminate officers for misconduct.^[251] State laws that allow the public to access information about disciplined or fired officers, but prevent access to allegations of misconduct, can perversely incentivize some law enforcement administrators to avoid disciplining officers so that records of misconduct are not accessible to the public.^[252] Max Schanzenbach and Stephen Rushin have both argued that the combination of these laws and policies hamper police administrators’ abilities to respond appropriately to misconduct and regularly allow officers with documented histories of misconduct to continue policing with few repercussions.^[253]

Law enforcement agencies also have poor track records of supporting officers whose mental health concerns may be impacting their work performance. Although many police officers experience job‑related mental health strain that negatively impacts their responses to volatile situations, police officers are often “reluctant to seek care for mental‑health related concerns.”^[254] These barriers are partly cultural; many police departments endorse hypermasculine cultures that discourage officers from seeking treatment or admitting that they are struggling.^[255] One recent study of police officers in the United States found that more than nine out of ten officers perceive a stigma around seeking mental health care.^[256] Psychiatrist Stephen Soltys has warned that ignoring the high prevalence of PTSD among law enforcement officers inevitably misses a piece of the solution to creating safer, more equitable public safety.^[257]

Even the officers who are proactive and willing to seek mental health support may not receive it. When the DOJ investigated the Minneapolis Police Department after George Floyd’s murder and the subsequent city unrest, its survey of leaders within the police department showed that they “almost universally recognized the need to better prioritize the health and wellness of officers,” but expressed that the limited resources available to officers, including counseling accessible only through a mobile app, were insufficient.^[258]

In summary, law enforcement agencies across the United States have too many officers prone to unjustified violence. Despite many studies showing that an officer’s history of misconduct is a red flag for future misconduct—and despite multiple appalling examples like Derek Chauvin’s murder of George Floyd supporting that point—law enforcement agencies themselves have largely proven uninterested or ineffective in protecting the public from these officers. Simultaneously, many agencies do a poor job of protecting officers themselves who may present heightened risks of violence due to stress or PTSD and who need mental health treatment or support. The combination of violence‑prone officers and inert departments presents serious public health concerns, particularly for Black people who have borne a disproportionate brunt of police violence.^[259] One survey of more than two thousand adults, conducted in 2021, revealed that 44 percent of survey participants generally and 77 percent of Black participants believed that police violence against Americans is a “very serious” problem.^[260] Another 2021 study from several criminologists revealed that a growing number of Americans, “particularly Black Americans, are living in fear of the police.”^[261] The study, which surveyed a representative sample of more than one thousand Americans, found that personal fear of the police was “widespread” among Black respondents, and that 42 percent of Black respondents reported being “very afraid” that a police officer would kill them in the next five years.^[262] White respondents reported being more afraid of crime than the police, but 55 percent of Black respondents said they were more afraid of the police than of crime.^[263]

Living in fear, particularly fear of crime or violence, is associated with poor public health outcomes, including mental health challenges, weakened immune system, mistrust of others and limited ability to form social relationships, reduced physical activity, increases in substance use, and other deleterious effects on both physical and mental well‑being.^[264]

The human toll of people who have died unnecessarily at the hands of law enforcement officers—potentially hundreds of people per year for many years—is devastating to contemplate. Though scholars, advocates, and community members voice concern and despair about these deaths, the numbers are increasing.^[265] Given the prevalence of deadly police violence and the physical and psychological devastation it has caused to communities across the United States, efforts to proactively prevent improper use of police deadly force are critical.

Part III of this Article explores lessons from red flag laws—an increasingly common and popular response to the serious public health risk of violence‑prone civilians with access to firearms—and how those laws could inform our approach to the problem of officers who present a public safety risk.

 III.  Applying Lessons From Red Flag Laws to Red Flag Officers

Two of the most seemingly intractable political and social issues in the United States are gun violence and police violence. Those two topics may have dominated national conversations about public safety more than any other over the past ten years. Yet the discussions rarely overlap, and few if any scholars or policymakers have considered whether lessons learned and successes achieved in one area may apply to the other. And even though gun violence remains a serious national challenge that divides much of the country in how best to address it, red flag laws are one preventive measure that have achieved comparatively widespread national support and likely prevented many fatalities or serious injuries. People concerned about police violence—including lawyers, politicians, policymakers, public health officials, journalists, and scholars, in addition to community members most directly affected by violence—could benefit from applying lessons learned from red flag laws to equally challenging conversations about how to prevent unjustified police violence. Part III offers ideas for doing that.

Section III.A begins by imagining how law enforcement agencies themselves might address concerns related to red flag officers within their ranks. Because most day‑to‑day policing happens without public scrutiny, and because most law enforcement administrators have significant control over disciplinary and personnel decisions within their agencies, many people believe that no major improvements to policing can happen without “buy‑in” from law enforcement officers themselves.^[266] Accordingly, Section III.A offers suggestions for both why and how law enforcement agencies can proactively address problem officers in their own departments.

While proactive steps by law enforcement agencies to protect the public from red flag officers would be ideal, many agencies have abysmal track records in this area.^[267] Accordingly, Sections III.B and III.C will address how municipal officials or legislators could use red flag laws as models for new policies or legislation focused on police violence. Section III.B proposes a policy requiring agencies to remove officers who have been credibly accused or suspected of unjustified violence from public‑facing positions until those allegations are resolved.^[268] Section III.C closes with a proposal that requires the least cooperation from law enforcement agencies: a law authorizing civilians to file petitions for protection orders against violence‑prone officers and authorizing judges to bar officers from possessing weapons while on duty once civilians have met their burden of showing that the officer presents an ongoing risk to the public.^[269]

 A.  Internal Changes for Law Enforcement Agencies

Law enforcement agencies can do much more to address the problem of red flag officers within their ranks. This includes more effectively using early warning systems to track officers who engage in violent behavior or speech, meaningfully disciplining or terminating officers who use unjustified violence, and providing mental health support to officers whose PTSD or other health challenges make them more prone to handling tense situations in a violent manner. As Section II.D described, however, many police departments have demonstrated little interest or success in pursuing these kinds of seemingly obvious tools to address police violence.

Assuming that law enforcement agencies will proactively adopt appropriate procedures for identifying and protecting the public from violence‑prone officers would be naïve, given many agencies’ poor histories in this area. However, conceptualizing these officers as “red flags” for both the department and the public could be helpful for at least two reasons. First, many law enforcement agencies today have a tendency to dismiss problematic policing as the result of a few “bad apples,” a term that is typically wielded as a tool to minimize police misconduct rather than a recognition of the danger that these officers present.^[270] Reconceptualizing violence‑prone officers as red flags, rather than bad apples, represents a shift in terminology that could motivate law enforcement leaders to address these problematic officers more proactively. Law enforcement administrators should increasingly recognize that loss of public trust and growing public fear of police is problematic for their agency and their officers’ own health and safety. Law enforcement administrators frequently complain that recruiting officers has become harder than it used to be, as increased critiques of police have made the job ostensibly less appealing to potential recruits.^[271] If police departments more proactively protected the public from violence‑prone officers, their agencies would be embroiled in fewer scandals and receive fewer complaints of misconduct, which might make the work more appealing to potential recruits. Additionally, fear of the police can cause people to behave in a manner that otherwise might seem irrational and unsafe, like fleeing or declining to follow officer commands.^[272] Fear can elevate danger for both officers and the public. To the extent administrators want to keep their own officers safe, they can accomplish this goal more effectively by employing officers who are calm and skilled at de‑escalating, rather than those prone to engage in unjustified violence.

Law enforcement agencies could also benefit from recognizing the comparative political popularity of red flag laws. Red flag laws, as discussed in Part I, enjoy more political support than many other forms of gun control, in part because they are narrowly crafted laws that temporarily limit the rights only of people who pose a demonstrable risk of harm.^[273] Law enforcement officers, especially union officials, frequently and vocally bristle at criticism of policing and resist efforts to restrict how officers operate.^[274] If agencies focused on reducing the harms caused by their most problematic officers, they could potentially enhance the working conditions of the rest of their department while simultaneously benefiting from a less fearful public.^[275]

To the extent that officers with mental and behavioral health issues can create a higher risk of responding poorly to volatile situations in ways that could endanger civilians, departments should recognize the dangers those mental health challenges may present and improve their own culture around seeking mental health care. Mihailis Diamantis has written at length about the need to destigmatize mental health treatment among police officers and provide more support for those who wish to prioritize their mental health.^[276] Agencies should support officers whose mental or behavioral health presents as a red flag—and potentially help restore their ability to police effectively—rather than ignoring those concerns and waiting for the officers to respond poorly in a way that endangers public safety.

 B.  Policy Temporarily Removing Officers Facing Allegations of Violence from Public‑Facing Positions

Apart from ideas for internal changes to police departments, this Article also offers two proposals—one policy and one law—that would enable states and municipalities to proactively protect the public from red flag officers. The first is a policy, adopted at a municipal or county level,^[277] requiring law enforcement agencies to remove officers who have been credibly accused or suspected of unjustified violence from public‑facing positions until those allegations are resolved.^[278] Many police departments already have similar but more limited policies requiring, for example, that officers who have been involved in fatal shootings be placed on paid administrative leave until any investigation into the shooting is resolved.^[279] This proposal extends these policies to apply more broadly to other situations where officers are suspected of violent or threatening behavior that may not involve a fatal shooting.

To protect the public from officers who present a significant risk to public safety, as well as to provide clarity to law enforcement agencies, the policy would need a thorough but specific definition of what types of misconduct allegations require a department to temporarily remove an officer from a public‑facing position. Shootings are certainly a threat to public safety, but so are other uses of potentially deadly force, including improper use of a taser, baton, or other weapon; choking or otherwise obstructing someone’s ability to breathe; and alleged assaults including punching, kicking, or stomping on a civilian.

Of course, police officers are sometimes authorized to use force on civilians. But all the forms of violence identified above pose a serious threat to public safety, as well as to the credibility of a police department. All police departments should require the officer who engages in this type of force to step away from a role that involves armed interaction with the public until the force is investigated. Similarly, threats of improper force or violence by an officer against a civilian—like James Ashby’s threat to put a bullet in the head of a gunshot victim who flagged him down for help^[280]—also belong in the category of allegations that require agencies to temporarily remove an officer from public‑facing positions until the threat is investigated. Other forms of misconduct that pose no threat to public safety should not be included in this policy.

Reports of alleged misconduct that creates a threat to public safety may come from a variety of sources. Law enforcement agencies may learn of this behavior via self‑reporting from the officer involved, reports from colleagues or supervisors, or documentation through body camera, audio, or use of force reports. But civilians or other law enforcement agencies that may have observed the alleged conduct must also have the ability to report this behavior. Given that some law enforcement agencies actively discourage civilians from making complaints,^[281] cities or counties adopting this policy should provide civilians an alternative means to report dangerous behavior to either a civilian oversight agency or Peace Officer Standards and Training (POST) board. Although many different forms of civilian oversight agencies exist, their basic purpose is to provide oversight of and accountability for local law enforcement agencies.^[282] As such, some oversight agencies have online reporting processes or other means for civilians to report possible misconduct by police officers.^[283] Alternatively, for police departments that lack any form of civilian oversight, complaints could potentially be lodged with the state’s POST board. POST boards are regulatory agencies in every state responsible for providing some form of oversight over local law enforcement departments.^[284] Although POST boards vary widely in their responsibilities and authority, most can revoke licenses of officers who commit serious misconduct, and some can establish policies that law enforcement agencies within their state must follow.^[285] POST boards are generally not equipped to investigate or render prompt decisions in response to officer misconduct complaints.^[286] They should, however, at least be able to serve as a repository for misconduct complaints involving agencies for whom no other form of civilian oversight exists.

Next, the policy must require law enforcement agencies, upon receipt of a credible misconduct allegation that fits within the defined categories of behavior that threaten public safety, to immediately remove the accused officer from a public‑facing position until the allegation is investigated and resolved. Much like policies that automatically place officers involved in shootings on paid administrative leave pending investigation into the shootings, this should be an automatic, rather than a discretionary, decision.^[287] Expanding the types of misconduct that require administrative leave pending investigation would protect the public from potentially dangerous officers on the street until their conduct is investigated, rather than leaving those officers to continue interacting with the public while a complaint is pending.

The policy should also require timely investigation of the alleged misconduct, so that officers do not remain on paid administrative leave or desk duty for unnecessarily lengthy periods of time. Many departments and oversight agencies take an unacceptably long time to investigate officer misconduct, and if the officer is still actively interfacing with the public during this time, they may cause additional harm.^[288] Conversely, officers’ careers may suffer unnecessarily if they are placed on a lengthy leave for conduct that was actually appropriate. In terms of the investigation itself, the policy should require investigators to document how they conducted the investigation and what information they reviewed. It should also require administrators to explain in writing the reasons for any final decisions about the veracity and severity of the allegation, including decisions about whether to take disciplinary action against the officer.

Lastly, if the misconduct allegation is sustained—meaning that investigators found that the officer did engage in unjustified conduct that endangered public safety^[289]—then the policy should recommend potential discipline. The final disciplinary decision may require case‑specific considerations, such as whether this was the officer’s first offense posing a threat of harm to the public and what level of danger their behavior posed. Typically, disciplinary decisions range from very minor discipline, like an oral reprimand or letter in an officer’s personnel file, to more serious discipline, like suspension or termination.^[290] Any offense posing an unjustified danger to the public should presumptively involve, at a minimum, suspension of the officer and may merit termination. Any decisions to impose discipline less than suspension for an offense that endangers the public must be explained in writing.

A policy with these components could help prevent officer violence and improve accountability in three ways. First, and perhaps most importantly, it takes the allegedly dangerous officer off the street and away from the public until the misconduct investigation is resolved. In a world where police departments too often ignore or respond inadequately to evidence of violence‑prone officers, this step—much like a temporary restraining order pursuant to a red flag law—would temporarily protect the public from officers who pose a credible threat of harm until a more thorough investigation can be completed.^[291]

Second, the policy—because it requires suspending the officer from public‑facing positions until the misconduct investigation is resolved—could incentivize more prompt investigation and resolution of complaints. As one comparison, the DOJ’s investigation into the Minneapolis Police Department revealed that, even where someone had made serious allegations of violence by an officer, the department (or its civilian counterpart responsible for investigating misconduct complaints) frequently took more than one year to resolve a complaint.^[292] In the meantime, the officers remained on duty and even were promoted.^[293] In the proposed policy, in contrast, the officer is of limited use to the department until the allegation is resolved, which should incentivize prompter resolution of misconduct allegations.

Third, the policy’s presumption that certain forms of serious discipline (like suspension or termination) be imposed for behavior that poses a threat to the public, and requirement that any departures from presumptive suspension be explained in writing, may help ensure that police departments respond with more gravity to misconduct that endangers the public. As Section II.D explained, many departments impose minimal discipline for significant misconduct or simply ignore warning signs of misconduct entirely.^[294] Requiring administrators to either impose specific discipline or justify their departures from presumptive discipline in writing will create clearer data about whether and how particular law enforcement agencies respond to red flag officers.

While protecting the public from violence‑prone officers, the proposed policy must also sufficiently protect the rights of officers suspected of misconduct. Most importantly, it must ensure that the administrative process of removing the officer from a public‑facing role until the investigation into the alleged misconduct is concluded does not impact the officer’s pay.^[295] That can be done by placing the officer on paid administrative leave while the investigation is pending.^[296]

To the extent the policy incentivizes timely investigation of misconduct, it also benefits wrongly accused officers. Officers who are wrongly accused of misconduct may suffer reputational harm when investigations are slow or nonexistent.^[297] Conversely, when officers do endanger or threaten the public and their employers do not respond with appropriate discipline, other officers observe that such violence is acceptable, and departmental culture devolves while the public becomes more distrustful or fearful of officers.^[298]

Although the proposed policy has several benefits, it is not without pitfalls. One concern is that a policy requiring departments to temporarily remove officers accused of violence from public‑facing positions could perversely motivate law enforcement officers not to report incidents of violence.^[299] It could also incentivize departments to resolve misconduct allegations quickly and without sufficient investigation so that they can return officers to active duty.

Police departments’ resistance to laws allowing public access to officer misconduct records show that attempts to hide misconduct are a realistic possibility. In recent years, police departments in California, New York, and Louisiana, among others, have allegedly violated state records laws by destroying or withholding evidence of officer misconduct rather than disclosing those records as the laws required.^[300] Other agencies have purged their misconduct records before new laws went into effect that would have required disclosure of those records.^[301] In Minnesota, where public records laws allow access to records of police discipline but not to misconduct allegations that resulted in no discipline, there is evidence suggesting that police departments have attempted to skirt public access by declining to impose discipline even in serious cases of misconduct.^[302] The same could happen if municipalities adopt this proposed policy: Law enforcement agencies may respond to restrictions on their ability to continue employing violence‑prone officers by attempting to hide evidence of violence.

Concerns about the integrity of police departments in reporting and investigating misconduct claims make it all the more important for governments to ensure appropriate processes for people to report complaints about police officers to entities other than the department itself, whether that be through a civilian oversight agency or a POST Board.^[303] For these same reasons, I have long urged municipalities to employ civilian oversight agencies to investigate police misconduct, so that police departments are not solely responsible for investigating their own officers.^[304] However, even those efforts may not be enough. Accordingly, Section III.C offers another proposal: a law authorizing civilians to file petitions for protection orders against violence‑prone officers.

 C.  Law Authorizing Petitions for Protection Orders Against Violence‑Prone Officers

For those concerned that the proposals in Sections III.A and III.B would rely too heavily on law enforcement agencies to police their own officers, a third option is to enact a law permitting civilians to file petitions for protection orders against on‑duty officers, alleging that the officer poses a risk of danger to the public. If a judge were to grant the protection order, the order would prevent the officer from handling or possessing weapons while on duty. The red flag laws discussed in Part I protect the public by empowering people close to the petitioner to request protection orders against those who pose a threat of harm to themselves or others. Similarly, a law authorizing civilians to request protection orders against on‑duty officers would allow people who have the most to fear—those who are at risk of experiencing violence by police officers—a voice in whether those officers continue to police their communities.

Given that this proposal involves a law somewhat similar to existing red flag laws, one might first ask whether those laws could simply be applied against police officers as well as other civilians. Existing red flag laws are insufficient to deter police violence for a few reasons. First, a minority of states with red flag laws allow only law enforcement officers, rather than civilians, to file petitions for protection orders.^[305] In those states, it is highly unlikely that law enforcement agencies would file petitions against their own officers. At least one law enforcement agency has used its own state’s red flag law to seek a protection order preventing one of its own employees from possessing or accessing firearms.^[306] In that case, members of the Gilchrist County, Florida, Sheriff’s Office became concerned after one of their deputies threatened a fellow officer, damaged furniture in the office, and told his supervisor that he wanted to use his work‑issued gun to kill a fellow deputy he thought was having an affair with his girlfriend.^[307] The agency filed a petition under Florida’s red flag law, requesting a protection order preventing the deputy from possessing firearms.^[308] The court granted the order after finding clear and convincing evidence that the deputy was a threat to his fellow officers.^[309]

While this is a rare example of a law enforcement agency using an existing red flag law to disarm one of its own officers, the agency in that case may have been particularly motivated to act because the deputy posed a threat to his fellow officers, rather than to the public at large.^[310] No evidence suggests that law enforcement agencies regularly make use of red flag laws to protect the public from possible harm by their officers.

Perhaps more importantly, although existing red flag laws are a useful model for conceptualizing how to protect the public from dangerous officers, they are both too broad and too narrow for the type of risk violence‑prone officers present. They are too narrow in that existing red flag laws only prevent gun violence—authorizing judges to impose protection orders prohibiting respondents from accessing guns—and do not restrain access to any other type of weapons. Dangerous officers, in contrast, may use guns, tasers, batons, squad cars, and other government‑issued equipment to injure and even kill.^[311]

Existing red flag laws are also broader than necessary to prevent officer violence, in that they infringe more drastically on the right to access guns than a law tailored to officers needs to do. Existing red flag laws authorize judges to issue protection orders that prevent the respondent from possessing or accessing guns under any circumstances.^[312] Many police officers pose specific threats of violence to the people they police, without evidence that they pose a similar threat to people with whom they interact while off duty.^[313] There is no evidence that Derek Chauvin, for example, endangered his friends and family. In fact, according to the sentencing memorandum filed by his lawyers, he ostensibly still enjoyed close relationships with some of them after he murdered George Floyd.^[314] Yet he posed a serious danger to the many people he choked and strangled before George Floyd.^[315] A law tailored to protect the public from violence‑prone officers would be limited to restricting officers’ access to weapons while on duty rather than in their private capacity and would thus be narrowly tailored to intrude on the officers’ Second Amendment rights only where the governmental interest is at its highest.^[316] (If the officer also poses a risk to themselves or others in their private capacity, plaintiffs could of course petition under an ordinary red flag law to bar the officer from possessing firearms in any capacity.)^[317]

In other ways, however, existing red flag laws offer excellent guidance for legislators or policymakers interested in crafting a law tailored to violence‑prone officers. An effective law tailored toward police officers should allow anyone with personal knowledge of an officer’s on‑duty violence to file a petition requesting a protection order preventing the officer from possessing or handling weapons while on duty.^[318] As with existing red flag laws, the petitioner would bear the burden of presenting evidence supporting the protection order.^[319] That evidence could include previous incidents of unjustified violence by the officer, threats of violence against specific people or communities, or other behavior showing a reckless disregard for human life.^[320] The respondent officer should receive notice of the petition and have an opportunity to respond, and a judge should grant the protection order only upon a finding by clear and convincing evidence that the officer poses a significant risk of danger to the community they are policing.^[321]

If a judge were to grant a protection order against a respondent officer, the protection order would only prevent the officer from possessing or handling weapons while on duty and could potentially apply to any work‑related equipment that can be used to harm civilians, such as guns, stun guns, tasers, batons, and vehicles. (The protection order need not encompass all of those items—if the evidence shows only that an officer poses a significant threat of violence with respect to certain weapons, the order could be more limited.) Because judges do not have authority over certain employment decisions, like an officer’s work assignments, the protection order could not dictate where an officer could and could not work. However, the practical limitations associated with lack of access to weapons would in all likelihood mean that an officer subjected to a protection order is limited to positions that involve limited, if any, public interaction.

A law authorizing judges to disarm police officers would, of course, be controversial. Law enforcement officials as well as rank‑and‑file officers would most likely strongly oppose a law that both gives civilians a new venue to raise concerns about officer behavior and grants judges some level of oversight over decisions law enforcement agencies prefer to make themselves.^[322] But given the evidence of how many people fear and mistrust the police, and police departments’ own lengthy history of failing to prevent violence by their own officers, the time is ripe for bolder steps to curb unjustifiably violent policing.^[323] Additionally, such a law—like the red flag laws that inspired this proposal—has the capacity to achieve widespread popular support, in that it is narrowly crafted to apply only to officers whose behavior proves they are a demonstrable threat to the communities they police. Red flag laws have likely saved hundreds of lives in the years since they were enacted.^[324] Victims of unjustified police violence are valuable members of our society and worthy of protection. If a red‑flag‑style law crafted specifically to address the problem of on‑duty police violence could save lives, it is worth seriously considering.

Despite many efforts to reform policing in the last few years, police officers in the United States continue to kill at disturbing and even increasing rates, and they harm many others with violence that does not result in death.^[325] While the problem of police violence can seem intractable, neither police departments nor government officials have used all the tools at their disposal to address the problem. This Part has offered several innovative proposals for reducing unjustified police violence. While the ideas are new as applied to officers—particularly the officer‑focused red flag law described in Section III.C—parallels exist in either previous policies or generally applicable laws. Both law enforcement administrators and government officials with a commitment to enhancing public safety should consider these proposals as tools empowering them to creatively address the enduring problem of violence‑prone officers, and thus make both police officers and the communities they police safer.

Conclusion

Much like laws aimed at curbing or controlling gun use in the United States, laws or policies related to policing are controversial and often politically difficult to pass. But the comparative popularity of red flag laws, which are narrowly aimed at preventing people who pose a significant risk of future violence from accessing weapons to effectuate that violence, should serve as a lesson to scholars, policymakers, law enforcement administrators, and communities attempting to solve the problem of police violence. Laws and policies aimed at protecting the public from a narrow group of red flag officers may similarly be able to gain political traction and even widespread support.^[326]

This Article is the first to use red flag laws as a tool for understanding and preventing unjustified police violence. It does so by drawing lessons from red flag laws and applying them to concerns about violence‑prone, or “red flag,” officers. This Article ultimately suggests three primary ways that law enforcement administrators, lawmakers, and advocates can employ red flag laws to prevent police violence. Law enforcement administrators can use the political popularity and narrow tailoring of red flags as an incentive to improve their own responses to officers who threaten public safety. Policymakers can develop policies for temporarily removing officers suspected of unjustified violence from public‑facing positions until those allegations are resolved. Lastly, legislators can enact red‑flag‑style laws that apply specifically to on‑duty officers, authorizing judges to issue protection orders prohibiting officers who demonstrably threaten public safety from using their weapons to endanger the public.

While solutions to police violence can be complex and controversial, that reality is not a reason to stop trying. George Floyd, Laquan McDonald, Jack Jacquez, and the many other victims of unjustified police violence, both named and unnamed in this Article, deserve our continued efforts.

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* Rachel Moran, Associate Professor, University of St. Thomas, Minnesota School of Law. Thanks to my colleagues who provided feedback on an early draft of this piece at the University of St. Thomas Faculty Advancement Colloquium, and the University of Colorado Law Review editors who offered thorough and thoughtful feedback. The Article also benefited from discussions with scholars at CrimFest 2023 and the Clinical Law Review Writers’ Workshop.

1. See Derek M. Chauvin, Badge #1087, Cmtys. United Against Police Brutality, http://‌‌‌complaints.cuapb.org‌‌‌/police‌‌‌_archive‌‌‌/officer‌‌‌/2377 [https://‌‌‌perma.cc‌‌‌/TKL3-2DUU]; Derek Chauvin, Cmtys. United Against Police Brutality, https://‌‌‌d3n8a8pro7vhmx.cloudfront.net‌‌‌/cuapb‌‌‌/pages‌‌‌/270‌‌‌/attachments‌‌‌/original‌‌‌/1618946695‌‌‌/Derek‌‌‌_Chauvin’s‌‌‌_History.pdf [https://‌‌‌perma.cc‌‌‌/8G8N-YDWM]. ↑
2. See State’s Amended Notice of Intent to Offer Other Evidence, State v. Chauvin, No. 27‑CR‑20‑12646, 2021 WL 2621001 (D. Minn. June 25, 2021), https://‌‌‌mncourts.gov‌‌‌/mncourtsgov‌‌‌/media‌‌‌/High-Profile-Cases‌‌‌/27-CR-20-12646‌‌‌/Notice09252020.pdf [https://‌‌‌perma.cc‌‌‌/AL5E-PLNP]; Jamiles Lartey & Abbie Van Sickle, ‘That Could Have Been Me’: The People Derek Chauvin Choked Before George Floyd, MPR News (Feb. 5, 2021, 1:39 PM), https://‌‌‌www.mprnews.org‌‌‌/story‌‌‌/2021‌‌‌/02‌‌‌/05‌‌‌/that-could-have-been-me-the-people-derek-chauvin-choked-before-george-floyd [https://‌‌‌perma.cc‌‌‌/JU54-NYBH]. ↑
3. Former Minneapolis Police Officer Derek Chauvin Pleads Guilty in Federal Court to Depriving George Floyd and a Minor Victim of Their Constitutional Rights, U.S. Dep’t of Just. (Dec. 15, 2021), https://‌‌‌www.justice.gov‌‌‌/opa‌‌‌/pr‌‌‌/former-minneapolis-police-officer-derek-chauvin-pleads-guilty-federal-court-depriving-george [https://‌‌‌perma.cc‌‌‌/8RMF-J386]. ↑
4. Chauvin received one oral reprimand in 2003 for using derogatory language and a letter of reprimand in 2007 for unspecified “abuse of discretion.” The remaining investigations were closed without discipline. See Derek M. Chauvin, Badge #1087, supra note 1. ↑
5. See Brandon Stahl et al., KARE 11 Investigates: Nearly 150 MPD Cops with Misconduct History Served as Trainers, Kare, https://‌‌‌www.kare11.com‌‌‌/article‌‌‌/news‌‌‌/investigations‌‌‌/kare-11-investigates-nearly-150-mpd-cops-with-misconduct-history-served-as-trainers‌‌‌/89-29969f7c-e52a-4b6a-bd49-b6a08dddbe05 [https://‌‌‌perma.cc‌‌‌/WYY5-ZVUJ] (last updated Feb. 24, 2022) (describing Chauvin’s history as a field training officer); Jon Collins, Ex‑Cop Kueng Gets 3 1‌‌‌/2 Years Prison for His Role in George Floyd’s Killing, MPR News, https://‌‌‌www.mprnews.org‌‌‌/story‌‌‌/2022‌‌‌/12‌‌‌/09‌‌‌/kueng-receives-sentence-after-guilty-plea-in-his-role-in-killing-of-george-floyd [https://‌‌‌perma.cc‌‌‌/G4Y3-Q2Z9] (last updated Dec. 9, 2022, 1:53 PM); Ex‑MPD Officer Thomas Lane Sentenced to 30 Months in Federal Civil Rights Case in George Floyd Killing, Kare, https://‌‌‌www.kare11.com‌‌‌/article‌‌‌/news‌‌‌/local‌‌‌/george-floyd‌‌‌/minneapolis-police-thomas-lane-federal-charges-sentencing-george-floyd‌‌‌/89-2d095128-bdfa-436c-baad-e70bd25bedec [https://‌‌‌perma.cc‌‌‌/ZV7N-WY39] (last updated July 21, 2022, 5:43 PM). ↑
6. Elliot C. McLaughlin, Chicago Officer Had History of Complaints Before Laquan McDonald Shooting, CNN, http://‌‌‌www.cnn.com‌‌‌/2015‌‌‌/11‌‌‌/25‌‌‌/us‌‌‌/jason-van-dyke-previous-complaints-lawsuits [https://‌‌‌perma.cc‌‌‌/VQ86-TV2T] (last updated Nov. 26, 2015, 5:45 PM); Jason Van Dyke, Citizens Police Data Project, https://‌‌‌cpdp.co‌‌‌/officer‌‌‌/29310‌‌‌/jason-van-dyke [https://‌‌‌perma.cc‌‌‌/5C6J-M5G7]. Although the Citizens Police Data Project site shows that Van Dyke was disciplined on October 20, 2014, for an “Operation‌‌‌/Personnel Violation,” that discipline was imposed for Van Dyke’s conduct on the day he murdered McDonald. CR 1081772 Operation‌‌‌/Personnel Violations: Reports, Citizens Police Data Project, https://‌‌‌cpdp.co‌‌‌/complaint‌‌‌/1081772 [https://‌‌‌perma.cc‌‌‌/6WEV-UNPV]. ↑
7. McLaughlin, supra note 6. ↑
8. Kyle Rozema & Max Schanzenbach, Good Cop, Bad Cop: Using Civilian Allegations to Predict Police Misconduct, 11 Am. Econ. J. 225, 258 (2019). ↑
9. Mitch Smith & Julie Bosman, Jason Van Dyke Sentenced to Nearly 7 Years for Murdering Laquan McDonald, N.Y. Times (Jan. 18, 2019), https://‌‌‌www.nytimes.com‌‌‌/2019‌‌‌/01‌‌‌/18‌‌‌/us‌‌‌/jason-van-dyke-sentencing.html [https://‌‌‌perma.cc‌‌‌/L8WN-V6TK]. The sixteen convictions for aggravated battery represented one conviction for each unjustified shot Officer Van Dyke fired at Mr. McDonald. Id. ↑
10. Complaint and Jury Demand at 2, Estate of Jack J. Jacquez v. City of Rocky Ford, No. 1:16‑cv‑02519 (D. Colo. July 5, 2017); Michael Roberts, Ex‑Cop James Ashby’s Journey from Rage‑aholic to Murderer, Westword (Nov. 22, 2016), https://‌‌‌www.westword.com‌‌‌/news‌‌‌/ex-cop-james-ashbys-journey-from-rage-aholic-to-murderer-8397610 [https://‌‌‌perma.cc‌‌‌/Y5TZ-ZETF]; Noelle Phillips, Rocky Ford to Pay $1.3 Million to Family of Man Murdered by On‑Duty Police Officer in 2014, Denver Post, https://‌‌‌www.denverpost.com‌‌‌/2017‌‌‌/07‌‌‌/27‌‌‌/rocky-ford-death-by-cop-settlement [https://‌‌‌perma.cc‌‌‌/VUH7-48DA] (last updated July 27, 2017, 3:34 PM). ↑
11. Complaint and Jury Demand, supra note 10, at 2–3, 21–22; Roberts, supra note 10. ↑
12. Complaint and Jury Demand, supra note 10, at 3; Roberts, supra note 10. ↑
13. Complaint and Jury Demand, supra note 10, at 13–17; see Robert Sanchez, Small‑Town Injustice: The Aftermath of a Police Officer’s Murder Conviction in Rocky Ford, 5280, https://‌‌‌www.5280.com‌‌‌/small-town-injustice-the-aftermath-of-a-police-officers-murder-conviction-in-rocky-ford [https://‌‌‌perma.cc‌‌‌/D8NB-Z4TM]. ↑
14. Complaint and Jury Demand, supra note 10, at 24–25. ↑
15. Police Violence Map, Mapping Police Violence, https://‌‌‌mappingpoliceviolence.us [https://‌‌‌perma.cc‌‌‌/RR5U-4D8G] (last updated Jan. 15, 2024); Fatal Force: 10,429 People Have Been Shot and Killed by Police from 2015 to 2024, Wash. Post [hereinafter Fatal Force], https://‌‌‌www.washingtonpost.com‌‌‌/graphics‌‌‌/investigations‌‌‌/police-shootings-database [https://‌‌‌perma.cc‌‌‌/7F49-CS7C] (last updated Dec. 31, 2024). ↑
16. Police Violence Map, supra note 15; Fatal Force, supra note 15; Sam Levin, ‘No Progress’ Since George Floyd: US Police Killing Three People a Day, Guardian (Mar. 30, 2022, 6:00 PM), https://‌‌‌www.theguardian.com‌‌‌/us-news‌‌‌/2022‌‌‌/mar‌‌‌/30‌‌‌/us-police-killing-people-high-rates [https://‌‌‌perma.cc‌‌‌/4EHV-HE8X]; see also Franklin E. Zimring, When Police Kill 23–40 (2017) (describing data behind calculation that U.S. police kill more than one thousand people per year). ↑
17. See Rachel Moran, Ending the Internal Affairs Farce, 64 Buff. L. Rev. 837, 866‍–‍67, 881–82 (2016); Stephen Rushin, Police Disciplinary Appeals, 167 U. Pa. L. Rev. 545, 555–66 (2019); Matthew Hanner, Note, License & Registration: Addressing New York’s Police Misconduct, 55 Colum. J.L. & Soc. Probs. 57, 61‍–‍62 (2021); C.R. Div., U.S. Dep’t of Just. & Civ. Div., Dist. of Minn., U.S. Atty’s Off., Investigation of the City of Minneapolis and the Minneapolis Police Department 68–78 (2023) [hereinafter DOJ, Minneapolis Investigation], https://‌‌‌www.justice.gov‌‌‌/opa‌‌‌/press-release‌‌‌/file‌‌‌/1587661‌‌‌/download [https://‌‌‌perma.cc‌‌‌/S9DQ-ZKR6]; Kendall Taggart & Mike Hayes, Secret NYPD Files: Officers Who Lie and Brutally Beat People Can Keep Their Jobs, Buzzfeed News (Mar. 5, 2018, 3:58 AM), https://‌‌‌www.buzzfeednews.com‌‌‌/article‌‌‌/kendalltaggart‌‌‌/secret-nypd-files-hundreds-of-officers-committed-serious [https://‌‌‌perma.cc‌‌‌/K5R7-T9TJ]; Jonathan S. Masur et al., Labor Mobility and the Problems of Modern Policing, 99 N.Y.U. L. Rev. 128, 131 (2024) (“The dominant story of police employment is one of continuity, not change.”); John Rappaport & Ben Grunwald, The Wandering Officer, 129 Yale L.J. 1676, 1717 (2020) (noting that only 2 percent of Florida officers in any given year over the twenty‑year period of their study were “wandering officers previously fired for misconduct”). ↑
18. Devon W. Carbado, Blue‑on‑Black Violence: A Provisional Model of Some of the Causes, 104 Geo. L.J. 1479, 1515–16 (2016) (arguing that police violence occurs more frequently in departments with poor internal mechanisms for tracking and responding to improper use of force); Barbara E. Armacost, Organizational Culture and Police Misconduct, 72 Geo. Wash. L. Rev. 453, 493–514 (2004) (arguing that police department organizational problems enable officer misconduct); Brian Howey & Nate Rosenfield, How a ‘Goon Squad’ of Deputies Got Away with Years of Brutality, Miss. Today (Nov. 30, 2023), https://‌‌‌mississippitoday.org‌‌‌/2023‌‌‌/11‌‌‌/30‌‌‌/rankin-county-sheriff-goon-squad-got-away-with-years-of-brutality [https://‌‌‌perma.cc‌‌‌/B69T-754F] (discussing a Mississippi sheriff’s office where administrators ignored violence by deputies); Taggart & Hayes, supra note 17 (identifying NYPD officers with serious histories of violence who remained on the force after this violence). ↑
19. See Moran, supra note 17, at 866–67, 881–82 (discussing systemic barriers to holding problematic officers accountable for misconduct); Rushin, supra note 17 (detailing structural barriers in labor and employment law shielding officers from punishment); DOJ, Minneapolis Investigation, supra note 17, at 68–78 (labeling Minneapolis’s poor police accountability structures as a contributing factor for ongoing police misconduct); C.R. Div., U.S. Dep’t of Just. & Dist. N.M., U.S. Atty’s Off., Re: Albuquerque Police Department 9–10 (2014) [hereinafter DOJ, Albuquerque Investigation], https://‌‌‌www.justice.gov‌‌‌/sites‌‌‌/default‌‌‌/files‌‌‌/crt‌‌‌/legacy‌‌‌/2014‌‌‌/04‌‌‌/10‌‌‌/apd‌‌‌_findings‌‌‌_4-10-14.pdf [https://‌‌‌perma.cc‌‌‌/MHM5-GPBD] (discussing findings of systemic departmental deficiencies in oversight, policy, and training that enabled officers to use excessive force on a regular basis). ↑
20. See infra Part I. ↑
21. See infra Part I. ↑
22. See infra Part I. ↑
23. Joseph Blocher & Noah Levine, Constitutional Gun Litigation Beyond the Second Amendment, 77 N.Y.U. Ann. Surv. Am. L. 175, 180–81 (2022). ↑
24. See infra Sections I.A, I.C (discussing the enactment of new red flag laws, their use, and their statistical popularity as compared to many other gun control measures). ↑
25. See generally Amna A. Akbar, An Abolitionist Horizon for (Police) Reform, 108 Calif. L. Rev. 1781 (2020) (describing and espousing abolitionist ideals for policing). See id. at 1802–12 for extensive policing scholarship focused on specific reforms. ↑
26. Cf. id. at 1788 (explaining how abolition uses reforms as a strategy for greater transformation rather than merely a fix of existing power structures); Allegra M. McLeod, Prison Abolition and Grounded Justice, 62 UCLA L. Rev. 1156, 1207‍–‍08 (2015) (noting that abolitionist ideals, as compared to more modest reforms, recognize the violence and dehumanization inherent to policing and aim to replace the policing framework with “other social regulatory forms”). ↑
27. These laws are also referred to as “extreme risk protection orders,” gun violence restraining orders, and other titles. Rachel Dalafave, An Empirical Assessment of Homicide and Suicide Outcomes with Red Flag Laws, 52 Loy. U. Chi. L.J. 867, 870, 872 (2021); Blocher & Levine, supra note 23. ↑
28. See, e.g., Extreme Risk Laws: How It Works, Everytown for Gun Safety, https://‌‌‌www.everytown.org‌‌‌/solutions‌‌‌/extreme-risk-laws‌‌‌/#why-does-it-need-to-be-solved [https://‌‌‌perma.cc‌‌‌/2S2L-JSHD] (“In many instances of gun violence, there are clear warning signs that the shooter posed a serious threat before the shooting. [Red flag] laws give key community members a way to intervene before warning signs become tragedies.”). ↑
29. April M. Zeoli et al., Extreme Risk Protection Orders in Response to Threats of Multiple Victim‌‌‌/Mass Shooting in Six U.S. States: A Descriptive Study, Preventive Med., Oct. 17, 2022, at 2; Jillian Peterson et al., Communication of Intent to Do Harm Preceding Mass Public Shootings in the United States, 1966 to 2019, J. Am. Med. Ass’n, Nov. 4, 2021. ↑
30. U.S. Secret Serv. Nat’l Threat Assessment Ctr., U.S. Dep’t of Homeland Sec., Mass Attacks In Public Spaces – 2019, at 22 (2020), https://‌‌‌www.secretservice.gov‌‌‌/sites‌‌‌/default‌‌‌/files‌‌‌/reports‌‌‌/2020-09‌‌‌/MAPS2019.pdf [https://‌‌‌perma.cc‌‌‌/H794-DF4U]. ↑
31. Cal. Penal Code § 18150 (West 2020); Colo. Rev. Stat. § 13‑14.5‑103 (2023); Conn. Gen. Stat. § 29‑38c (2020); Del. Code Ann. tit. 10, §§ 7701, 7704 (West 2020); Fla. Stat. Ann. § 790.401 (3)(A) (West 2018); Haw. Rev. Stat. Ann. § 134‑65 (West 2020); 430 Ill. Comp. Stat. 67‌‌‌/35, 67‌‌‌/40 (2023); Ind. Code § 35‑47‑14‑2 (2020); Md. Code Ann., Pub. Safety § 5‑602 (West 2020); Mass. Gen. Laws ch. 140, § 131R (2024); Mich. Comp. Laws § 691.1801 (2024); Minn. Stat. § 624.7171 (2024); Nev. Rev. Stat. § 33.590 (2020); N.J. Stat. Ann. §§ 2c58‑21, ‑23 (West 2019); N.M Stat. Ann. § 40‑17‑1‑13 (2020); N.Y. C.P.L.R. §§ 6340, 6341 (McKinney 2021); Or. Rev. Stat. § 166.527 (2020); 8 R.I. Gen. Laws §§ 8‑8.3‑4 (2020); Vt. Stat. Ann. tit. 13, § 4053 (West 2023); Va. Code Ann. § 19.2‑152.14 (West 2020); Wash. Rev. Code §§ 7.105.070, 7.105.100(1)(e) (2022); D.C. Code §§ 7‑2510.01–.13 (2021). See generally Extreme Risk Laws, supra note 28 (charting the states with red flag laws). ↑
32. Dalafave, supra note 27, at 870. ↑
33. See, e.g., Mich. Comp. Laws § 691.1801 (labeling its red flag law the “extreme risk protection order act”); Minn. Stat. § 624.7171 (discussing extreme risk protection orders). ↑
34. Dalafave, supra note 27, at 873. ↑
35. See Conn. Gen. Stat. § 29‑38c(a); Fla. Stat. Ann. § 790.401(2)(a); Ind. Code § 35‑47‑14‑2; N.M Stat. Ann. § 40‑17‑2; 8 R.I. Gen. Laws § 8‑8.3‑3(a); Va. Code Ann. § 19.2‑152.13. ↑
36. Cal. Penal Code § 18150; Del. Code Ann. tit. 10, §§ 7701, 7704; 430 Ill. Comp. Stat. 67‌‌‌/5, 67‌‌‌/40; Md. Code Ann., Pub. Safety § 5‑601(e)(2); Mass. Gen. Laws ch. 140, § 121; Minn. Stat. § 624.7171, subdiv. 4(b) (2024); Nev. Rev. Stat. § 33.560; N.J. Stat. Ann. § 2C:58‑23; N.Y. C.P.L.R. § 6340; Or. Rev. Stat. § 166.527; 13 Vt. Stat. Ann. § 4053(a). ↑
37. Cal. Penal Code § 18150; Colo. Rev. Stat. § 13‑14.5‑104 (2023); Haw. Rev. Stat. § 134‑61 (2020); Md. Code Ann., Pub. Safety § 5‑601(e)(2); Mich. Comp. Laws § 691.1805; N.Y. C.P.L.R. § 6340. ↑
38. Dalafave, supra note 27, at 874–75. ↑
39. Id. at 874. ↑
40. Id. at 874–75. California’s red flag law allows courts to issue protection orders lasting up to five years. Cal. Penal Code § 18175(e)(1). ↑
41. Dalafave, supra note 27, at 873–74. ↑
42. Compare Conn. Gen. Stat. § 29‑38c(a) (2020) (requiring a finding that the respondent poses an “imminent” risk to themselves or others), with D.C. Code § 7‑2510.04 (2021) (authorizing judges to grant removal orders if “probable cause” exists to find respondents pose a “significant risk” to themselves or others), N.Y. C.P.L.R. § 6343.2 (requiring court to assess whether the respondent is “likely to engage in conduct that would result in serious harm to [themselves] or others”), and Mass. Gen. Laws ch. 140, § 131T (2024) (directing judges to grant gun removal orders if “reasonable cause” exists to find respondent poses a risk of harm to themselves or others). ↑
43. Cal. Penal Code § 18175(b); Colo. Rev. Stat. § 13‑14.5‑105(2) (2023); Del. Code Ann. Tit. 10 § 7704(d) (2020); Fla. Stat. Ann. § 790.401(3)(b) (West 2018); 430 Ill. Comp. Stat. Ann. 67‌‌‌/40(f) (2023); Md. Code Ann., Pub. Safety § 5‑605(c)(1)(II) (2021); Nev. Rev. Stat. § 33.580(1) (2020); N.Y. C.P.L.R. § 6343(2); Or. Rev. Stat. § 166.530(3)(b) (2021); 8 R.I. Gen. Laws Ann. § 8‑8.3‑5(a) (2021); Vt. Stat. Ann. tit. 13, § 4053(b) (West 2023); Va. Code Ann. § 19.2‑152.14(a) (West 2021). ↑
44. D.C. Code § 7‑2510.03(g); Haw. Rev. Stat. Ann. § 134‑65(c) (West 2020); Mass. Gen. Laws ch. 140, § 131S(c); N.J. Stat. Ann. § 2c:58‑24(b) (West 2019); N.M. Stat. Ann. § 40‑17‑8(a) (2020). ↑
45. Conn. Gen. Stat. § 29‑38c (1999); Ind. Code §§ 35‑47‑14‑1 to ‑2 (2005); Cal. Penal Code §§ 18100–18165 (2014); Wash. Rev. Code §§ 7.94.010–.050 (2016) (repealed 2022); Or. Rev. Stat. §§ 166.525–.537 (2018). ↑
46. Jonathan Rabinovitz, Rampage in Connecticut: The Overview; Connecticut Lottery Worker Kills 4 Bosses, Then Himself, N.Y. Times (Mar. 7, 1998), https://‌‌‌www.nytimes.com‌‌‌/1998‌‌‌/03‌‌‌/07‌‌‌/nyregion‌‌‌/rampage-connecticut-overview-connecticut-lottery-worker-kills-4-bosses-then.html [https://‌‌‌perma.cc‌‌‌/XY6Y-7H3R]. ↑
47. Justin L. Mack, Remembering Jake Laird, the Officer Whose Death Inspired Indiana’s ‘Red Flag’ Law, IndyStar, https://‌‌‌www.indystar.com‌‌‌/story‌‌‌/news‌‌‌/crime‌‌‌/2019‌‌‌/08‌‌‌/07‌‌‌/red-flag-law-indiana-named-after-jake-laird-slain-officer‌‌‌/1942857001 [https://‌‌‌perma.cc‌‌‌/8MEP-QYHT] (last updated Aug. 7, 2019, 4:52 PM). ↑
48. Patrick McGreevy, California Sees Record Number of Guns Confiscated Under ‘Red Flag’ Law, L.A. Times (May 7, 2021), https://‌‌‌www.latimes.com‌‌‌/california‌‌‌/story‌‌‌/2021-05-07‌‌‌/sharp-rise-in-guns-confiscated-under-california-red-flag-law [https://‌‌‌perma.cc‌‌‌/GPW2-WPYT]. ↑
49. Colo. Rev. Stat. §§ 13‑14.5‑103 to ‑114 (2023); D.C. Code §§ 7‑2510.04‍–‍.13; Del. Code Ann. tit. 10, §§ 7701–7709 (2020); Fla. Stat. Ann. § 790.401 (West 2018); Haw. Rev. Stat. Ann. §§ 134‑63 to ‑68; 430 Ill. Comp. Stat. 67‌‌‌/1 (2019); Md. Code Ann., Pub. Safety §§ 5‑601 to ‑610 (West 2020); Mass. Gen. Laws ch.140, § 131R; Mich. Comp. Laws §§ 691.1801–.1821 (eff. Feb. 13, 2024); Minn. Stat. § 624.7171 (2024); N.J. Stat. Ann. §§ 2c:58‑20 to ‑32; N.M. Stat. Ann. §§ 40‑17‑1 to ‑13; Nev. Rev. Stat. §§ 33.500–.670 (2020); N.Y. C.P.L.R. §§ 6340‑6348 (McKinney 2021); 8 R.I. Gen. Laws §§ 8‑8.3‑1 to ‑14 (2020); Vt. Stat. Ann. tit. 13, §§ 4051–4061 (2023); Va. Code Ann. § 19.2‑152.14 (2020). ↑
50. See Sean Campbell et al., Red Flag Laws: Where the Bills Stand in Each State, Trace (Dec. 22, 2020), https://‌‌‌www.thetrace.org‌‌‌/2018‌‌‌/03‌‌‌/red-flag-laws-pending-bills-tracker-nra [https://‌‌‌perma.cc‌‌‌/T8FB-P6RF]; Red Flag Laws States 2024, World Population Rev., https://‌‌‌worldpopulationreview.com‌‌‌/state-rankings‌‌‌/red-flag-laws-states [https://‌‌‌perma.cc‌‌‌/4QDF-SXEU] (indicating that thirteen state legislatures have considered but failed to pass red flag laws). ↑
51. APM Survey: Americans’ Views on Key Gun Policies, Am. Pub. Media Rsch. Lab (Aug. 20, 2019), https://‌‌‌www.apmresearchlab.org‌‌‌/gun-survey-red-flag [https://‌‌‌perma.cc‌‌‌/AAE2-UELV]; see also Shannon Hautzinger, Comment, Red Flag Laws: Popularity, Effectiveness, and Why Arizona Should Set Its Sights on Enacting One, 53 Ariz. St. L.J. 907, 915 (2021) (“[B]ecause the laws aim to restrict dangerous individuals rather than dangerous guns, gun rights advocates have expressed more support for red flag laws than they have for other gun control proposals.”). In comparison, 58 percent of Americans in a 2024 Pew Research Center survey said they favor stricter gun laws generally, and 51 percent of respondents said they thought protecting Americans’ rights to own guns was more important than controlling gun ownership. Katherine Schaeffer, Key Facts About Americans and Guns, Pew Rsch. Ctr. (July 24, 2024), https://‌‌‌www.pewresearch.org‌‌‌/short-reads‌‌‌/2024‌‌‌/07‌‌‌/24‌‌‌/key-facts-about-americans-and-guns [https://‌‌‌perma.cc‌‌‌/9TJP-6SP4]. ↑
52. See Margaret Hartmann, Why ‘Red Flag Laws’ Are Gaining Bipartisan Support After Parkland, N.Y. Mag. (Feb. 21, 2018), http://‌‌‌nymag.com‌‌‌/intelligencer‌‌‌/2018‌‌‌/02‌‌‌/red-flag-laws-draw-more-bipartisan-support-after-parkland.html [https://‌‌‌perma.cc‌‌‌/3T45-4CKL] (quoting David French’s argument that red flag laws “empower the people who have the most to lose” from gun violence). ↑
53. See, e.g., R.M. v. C.M., 207 N.Y.S.3d 634, 643–44 (App. Div. 2024) (rejecting constitutional challenges under both the Second and Fourteenth Amendments to New York’s red flag law); Hope v. State, 133 A.3d 519, 524–25 (Conn. App. Ct. 2016) (rejecting the argument that a red flag law violated due process and the Second Amendment); Redington v. State, 992 N.E.2d 823, 830–39 (Ind. Ct. App. 2013); Davis v. Gilchrist Cnty. Sheriff’s Off., 280 So. 3d 524, 533 (Fla. Dist. Ct. App. 2019) (rejecting the argument that Florida’s red flag law violated substantive due process rights); Willey v. Brown, No. 23‑2299‑BAH, 2024 WL 3557937, at *18 (D. Md. July 25, 2024) (rejecting request for preliminary injunction against Maryland’s red flag laws, and noting that “challenges to [red flag] laws have been few and far between at both the state and federal level, and as of this writing, none of those challenges have been successful”). ↑
54. See sources cited infra notes 57, 65. ↑
55. See, e.g., R.M., 207 N.Y.S.3d at 643–44; Hope, 133 A.3d at 519; Redington, 992 N.E.2d at 834–35; see also Joseph Blocher & Jacob Charles, Firearms, Extreme Risk, and Legal Design: “Red Flag” Laws and Due Process, 106 Va. L. Rev. 1285, 1302‍–‍03 (2020); Blocher & Levine, supra note 23, at 181–82. ↑
56. Willey, 2024 WL 3557937, at *17, *19. ↑
57. United States v. Rahimi, 602 U.S. 680, 688–91 (2024). ↑
58. Id. at 684. ↑
59. Id. at 690. ↑
60. Id. at 688–91. “When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed.” Id. at 698. The Supreme Court further stated, “our Nation’s tradition of firearm regulation distinguishes citizens who have been found to pose a credible threat to the physical safety of others from those who have not.” Id. at 700. ↑
61. See, e.g., R.M., 207 N.Y.S.3d at 643–44 (reasoning that New York’s red flag law provides “ample procedural safeguards” for respondents); see also Blocher & Charles, supra note 55, at 1291–92, 1344. ↑
62. Fuentes v. Shevin, 407 U.S. 67, 80 (1972); see also Blocher & Charles, supra note 55, at 1319. ↑
63. See Raheem Williams, Red Flag Gun Laws Turn Due Process on Its Head, Found. for Econ. Ed. (Feb. 11, 2019), https://‌‌‌fee.org‌‌‌/articles‌‌‌/red-flag-gun-laws-turn-due-process-on-its-head [https://‌‌‌perma.cc‌‌‌/6K55-9RZ8]; John R. Richardson, Note, Red Flag Laws and Procedural Due Process: Analyzing Proposed Red Flag Laws and Procedural Due Process, 2021 Utah L. Rev. 743, 752–64 (analyzing possible due process challenges to red flag laws). ↑
64. See Blocher & Charles, supra note 55, at 1318–19. ↑
65. See id. (“The question is not whether the government can ever take firearms away, but what the government needs to do and show before it can.”). ↑
66. Blocher & Levine, supra note 23, at 181–82; see also Blocher & Charles, supra note 55, at 1331–43 (explaining the requirements of procedural due process and arguing that red flag laws fit “comfortably” within those requirements). ↑
67. See Jeffrey W. Swanson et al., Implementation and Effectiveness of Connecticut’s Risk‑Based Gun Removal Law: Does It Prevent Suicides?, 80 Law & Contemp. Probs. 179, 189–90 (2017) [hereinafter Swanson et al., Implementation and Effectiveness of Connecticut’s Risk‑Based Gun Removal Law]; Jeffrey W. Swanson et al., Suicide Prevention Effects of Extreme Risk Protection Order Laws in Four States, 52 J. Am. Acad. Psychiatry & L. 327 (2024) [hereinafter Swanson et al., Suicide Prevention Effects of Extreme Risk Protection Order Laws in Four States]. ↑
68. Swanson et al., Implementation and Effectiveness of Connecticut’s Risk‑Based Gun Removal Law, supra note 67. ↑
69. Id. at 204. ↑
70. See Swanson et al., Suicide Prevention Effects of Extreme Risk Protection Order Laws in Four States, supra note 67, at 332–34. ↑
71. Dalafave, supra note 27, at 871, 894–95. ↑
72. Id. at 882, 896. ↑
73. Garen J. Wintemute et al., Extreme Risk Protection Orders Intended To Prevent Mass Shootings: A Case Series, 171 Annals Internal Med. 655, 656 (2019). ↑
74. Veronica Pear et al., Gun Violence Restraining Orders in California, 2016–‍2018: Case Details and Respondent Mortality, 28 Inj. Prevention 465, 465, 469 (2022). ↑
75. Lisa Howard, California’s ‘Red Flag’ Law Utilized for 58 Threatened Mass Shootings, U.C. Davis (June 8, 2022), https://‌‌‌www.ucdavis.edu‌‌‌/news‌‌‌/californias-red-flag-law-utilized-58-threatened-mass-shootings [https://‌‌‌perma.cc‌‌‌/4FMY-8LF9]. ↑
76. Zeoli et al., supra note 29, at 2. ↑
77. Id. at 4. ↑
78. Id. at 5–6. ↑
79. How ‘Red Flag’ Laws Could Have Made a Difference in Mass Shootings in El Paso and Dayton, USA Today, https://‌‌‌www.usatoday.com‌‌‌/story‌‌‌/opinion‌‌‌/2019‌‌‌/08‌‌‌/08‌‌‌/el-paso-dayton-red-flag-laws-mass-shootings-editorials-debates‌‌‌/1952669001 [https://‌‌‌perma.cc‌‌‌/SSJ7-6EC9] (last updated Aug. 8, 2019, 8:51 PM); New Vermont Law Used to Keep School Shooting Plot Suspect from Getting Gun, CBS News (Apr. 16, 2018, 12:50 PM), https://‌‌‌www.cbsnews.com‌‌‌/news‌‌‌/new-vermont-law-used-to-keep-school-shooting-plot-suspect-from-getting-gun [https://‌‌‌perma.cc‌‌‌/5LS9-V8UJ]. ↑
80. Ovetta Wiggins, Red‑Flag Law in Maryland Led to Gun Seizures from 148 People in First Three Months, Wash. Post (Jan. 15, 2019), https://‌‌‌www.washingtonpost.com‌‌‌/local‌‌‌/md-politics‌‌‌/red-flag-law-in-maryland-led-to-148-gun-seizures-in-first-three-months‌‌‌/2019‌‌‌/01‌‌‌/15‌‌‌/cfb3676c-1904-11e9-9ebf-c5fed1b7a081‌‌‌_story.html [https://‌‌‌perma.cc‌‌‌/44Q4-7AVH]. ↑
81. Wintemute et al., supra note 73, at 655. ↑
82. Steve Contorno et al., Florida’s Red Flag Law, Championed by Republicans, Is Taking Guns from Thousands of People, CNN, https://‌‌‌www.cnn.com‌‌‌/2022‌‌‌/06‌‌‌/01‌‌‌/politics‌‌‌/florida-red-flag-law [https://‌‌‌perma.cc‌‌‌/VAB8-DBZB] (last updated June 1, 2022, 5:22 PM). ↑
83. Id. ↑
84. How ‘Red Flag’ Laws Could Have Made a Difference in Mass Shootings in El Paso and Dayton, supra note 79; Michael Biesecker & Julie Carr Smyth, Ohio Gunman’s Ex‑Classmates Decry Missed Chances to Stop Him, Associated Press (Aug. 5, 2019, 11:20 PM), https://‌‌‌apnews.com‌‌‌/article‌‌‌/shootings-oh-state-wire-us-news-ap-top-news-dayton-83e222c2be834d1fb3b472f9f77aabb2 [https://‌‌‌perma.cc‌‌‌/U8PT-DQRN]. ↑
85. Jolie McCullough, Will Texas Pass a “Red Flag” Law to Remove Guns from People Who Are Deemed Dangerous?, Tex. Trib. (June 18, 2018, 12:00 AM), https://‌‌‌www.texastribune.org‌‌‌/2018‌‌‌/06‌‌‌/18‌‌‌/texas-gun-red-flag-laws-santa-fe-greg-abbott [https://‌‌‌perma.cc‌‌‌/7YTH-T6XV]. ↑
86. Aaron Katersky, El Paso Walmart Shooter to Plead Guilty in Racist 2019 Massacre, ABC News (Jan. 24, 2023, 8:29 AM), https://‌‌‌abcnews.go.com‌‌‌/US‌‌‌/el-paso-walmart-shooter-plead-guilty-racist-2019‌‌‌/story?id=96634412 [https://‌‌‌perma.cc‌‌‌/9SD2-SRNX]; Press Release, U.S. Dep’t of Just., Texas Man Sentenced to 90 Consecutive Life Sentences for 2019 Mass Shooting at Walmart in El Paso, Texas, Killing 23 People and Injuring 22 Others, https://‌‌‌www.justice.gov‌‌‌/archives‌‌‌/opa‌‌‌/pr‌‌‌/texas-man-sentenced-90-consecutive-life-sentences-2019-mass-shooting-walmart-el-paso-texas [https://‌‌‌perma.cc‌‌‌/H5AV-CBGR] (last updated Feb. 6, 2025). ↑
87. Scott Glover & Majlie de Puy Kamp, Exclusive: El Paso Suspect’s Mother Called Police Concerned About Gun, CNN, https://‌‌‌www.cnn.com‌‌‌/2019‌‌‌/08‌‌‌/07‌‌‌/us‌‌‌/el-paso-crusius-gun-warning‌‌‌/index.html [https://‌‌‌perma.cc‌‌‌/J28B-A2VG] (last updated Aug. 8, 2019, 9:33 PM). ↑
88. Brett Murphy & Maria Perez, Florida School Shooting: Sheriff Got 18 Calls About Nikolas Cruz’s Violence, Threats, Guns, USA Today, https://‌‌‌www.usatoday.com‌‌‌/story‌‌‌/news‌‌‌/nation-now‌‌‌/2018‌‌‌/02‌‌‌/23‌‌‌/florida-school-shooting-sheriff-got-18-calls-cruzs-violence-threats-guns‌‌‌/366165002 [https://‌‌‌perma.cc‌‌‌/47V9-EMKB] (last updated Feb. 23, 2018, 1:11 PM); Curt Devine & Jose Pagliery, Sheriff Says He Got 23 Calls About Shooter’s Family, but Records Show More, CNN, https://‌‌‌www.cnn.com‌‌‌/2018‌‌‌/02‌‌‌/27‌‌‌/us‌‌‌/parkland-shooter-cruz-sheriff-calls-invs‌‌‌/index.html [https://‌‌‌perma.cc‌‌‌/AUT5-FTND] (last updated Feb. 27, 2018, 2:35 PM). ↑
89. Adam Goldman & Patricia Mazzei, YouTube Comment Seen as Early Warning in Shooting Left Little for F.B.I. to Investigate, N.Y. Times (Feb. 15, 2018), https://‌‌‌www.nytimes.com‌‌‌/2018‌‌‌/02‌‌‌/15‌‌‌/us‌‌‌/politics‌‌‌/nikolas-cruz-youtube-comment-fbi.html [https://‌‌‌perma.cc‌‌‌/W958-EHXF]; Joel Rose & Brakkton Booker, Parkland Shooting Suspect: A Story of Red Flags, Ignored, NPR (Mar. 1, 2018, 7:03 AM), https://‌‌‌www.npr.org‌‌‌/2018‌‌‌/02‌‌‌/28‌‌‌/589502906‌‌‌/a-clearer-picture-of-parkland-shooting-suspect-comes-into-focus [https://‌‌‌perma.cc‌‌‌/L9VL-35C9]. ↑
90. See Chris Jackson, As Public Safety Tops the Agenda, Americans Want Both Order and Justice, Ipsos (July 8, 2021), https://‌‌‌www.ipsos.com‌‌‌/en-us‌‌‌/news-polls‌‌‌/usa-today-crime-and-safety-2021 [https://‌‌‌perma.cc‌‌‌/2ZDH-FAFW]; Lydia Saad, Personal Safety Fears at Three‑Decade High in U.S., GALLUP (Nov. 16, 2023), https://‌‌‌news.gallup.com‌‌‌/poll‌‌‌/544415‌‌‌/personal-safety-fears-three-decade-high.aspx [https://‌‌‌perma.cc‌‌‌/H324-2F99]. ↑
91. See Chris Simkins, Poll Finds Most Americans Support US Police Reforms, VOA News (June 2, 2022, 6:39 PM), https://‌‌‌www.voanews.com‌‌‌/a‌‌‌/poll-finds-most-americans-support-us-police-reforms‌‌‌/6600984.html [https://‌‌‌perma.cc‌‌‌/Y25J-ZMLG] (finding two-thirds of participants supported removing officers from jobs if they have repeatedly abused their power). ↑
92. See Police Violence Map, supra note 15; Fatal Force, supra note 15; Levin, supra note 16. ↑
93. Police Violence Map, supra note 15; Sam Levin, 2023 Saw Record Killings by US Police. Who Is Most Affected?, Guardian, https://‌‌‌www.theguardian.com‌‌‌/us-news‌‌‌/2024‌‌‌/jan‌‌‌/08‌‌‌/2023-us-police-violence-increase-record-deadliest-year-decade [https://‌‌‌perma.cc‌‌‌/3DV5-W4S6] (last updated Jan. 8, 2024, 12:55 PM). ↑
94. Zimring, supra note 16, at xi (noting that “killings by police are a much larger problem in the United States than in any other developed nation”); Police Violence Map, supra note 15; Fatal Force, supra note 15. ↑
95. Zimring, supra note 16, at 76–77 (providing further analysis of variations in rates of killings by police in the United States versus other countries). ↑
96. Chris Gilligan, U.S. Remains an Outlier in Firearm Possession, Gun‑Related Deaths, U.S. News & World Rep. (Jan. 30, 2023, 3:42 PM), https://‌‌‌www.usnews.com‌‌‌/news‌‌‌/best-countries‌‌‌/articles‌‌‌/2023-01-30‌‌‌/how-the-u-s-compares-to-the-world-on-guns [https://‌‌‌perma.cc‌‌‌/VMN6-5RMW]; John Gramlich, What the Data Says About Gun Deaths in the U.S., Pew Rsch Ctr. (Apr. 26, 2023), https://‌‌‌www.pewresearch.org‌‌‌/short-reads‌‌‌/2023‌‌‌/04‌‌‌/26‌‌‌/what-the-data-says-about-gun-deaths-in-the-u-s [https://‌‌‌perma.cc‌‌‌/YC5G-YTUJ]. ↑
97. Zimring, supra note 16, at 76–77. ↑
98. The United States does not have a federal statute governing police use of deadly force, and different states use different standards for assessing whether police use of deadly force is legally justified. See Cynthia Lee, Reforming the Law on Police Use of Deadly Force: De‑Escalation, Pre‑Seizure Conduct, and Imperfect Self‑Defense, 2018 Ill. L. Rev. 629, 640–61 (2018) (discussing the absence of a federal statute and providing examples of different state laws). The Supreme Court indicated that an officer’s use of deadly force is likely justified if the officer has reasonable grounds to believe the suspect poses a threat of death or serious bodily harm to the officer or others. See Tennessee v. Garner, 471 U.S. 1, 11 (1985). Some states require that the use of force be “necessary,” rather than merely reasonable. See, e.g., Minn. Stat. § 609.066 subdiv. 2 (2021) (“The use of deadly force by a peace officer in the line of duty is justified only if an objectively reasonable officer would believe, based on the totality of the circumstances known to the officer at the time and without the benefit of hindsight, that such force is necessary: (1) to protect the peace officer or another from death or great bodily harm.”). ↑
99. Lydia Fielder & Emily Van de Riet, ‘Didn’t Hesitate’: Police Identify  2 Officers Who Took Down Nashville School Shooter, WALB 10 (Mar. 29, 2023, 2:28 PM), https://‌‌‌www.walb.com‌‌‌/2023‌‌‌/03‌‌‌/29‌‌‌/didnt-hesitate-police-identify-2-officers-who-took-down-nashville-school-shooter [https://‌‌‌perma.cc‌‌‌/M9CH-WLN5]. ↑
100. See Sarah DeGue et al., Deaths Due to Use of Lethal Force by Law Enforcement: Findings from the National Violent Death Reporting System, 17 U.S. States, 2009–2012, 51 Am. J. Preventive Med. 173 (2016) (recognizing that some police homicides are preventable, even if deemed legally justified); 2023 Police Violence Report, Mapping Police Violence, https://‌‌‌policeviolencereport.org‌‌‌/2023 [https://‌‌‌perma.cc‌‌‌/24GT-E82M] (providing data on more than 1200 killings by U.S. police officers in 2023 and arguing that “a substantial proportion of all killings by police in 2023 could have been prevented”); Cheryl W. Thompson, Fatal Police Shootings of Unarmed Black People Reveal Troubling Patterns, NPR (Jan. 25, 2021, 5:00 AM), https://‌‌‌www.npr.org‌‌‌/2021‌‌‌/01‌‌‌/25‌‌‌/956177021‌‌‌/fatal-police-shootings-of-unarmed-black-people-reveal-troubling-patterns [https://‌‌‌perma.cc‌‌‌/H8KH-DNAR] (discussing homicides committed by officers with troubling histories of misconduct). ↑
101. Lydian Coombs, Former MPD Officer Out on Bond After Allegedly Kidnapping, Murdering Man While on Duty in 2021, Action News 5 (June 9, 2023, 7:13 PM), https://‌‌‌www.actionnews5.com‌‌‌/2023‌‌‌/06‌‌‌/10‌‌‌/former-mpd-officer-charged-with-kidnapping-murdering-man-while-duty-2021-out-bond [https://‌‌‌perma.cc‌‌‌/7QKV-TUNL]; Former Memphis Police Officer Charged with Federal Civil Rights, Kidnapping and Weapons Offenses Related to Fatal Shooting, U.S. Dep’t of Just. (May 8, 2024), https://‌‌‌www.justice.gov‌‌‌/opa‌‌‌/pr‌‌‌/former-memphis-police-officer-charged-federal-civil-rights-kidnapping-and-weapons-offenses [https://‌‌‌perma.cc‌‌‌/NAV4-YXYH]. As of September 10, 2024, criminal charges against Ferguson for murder and kidnapping, among others, were still pending. ↑
102. Sarah Nealeigh, Jenkins Had Troubled Employment Past, Chillicothe Gazette, https://‌‌‌www.chillicothegazette.com‌‌‌/story‌‌‌/news‌‌‌/local‌‌‌/2016‌‌‌/01‌‌‌/15‌‌‌/jenkins-had-troubled-employment-past‌‌‌/78734440 [https://‌‌‌perma.cc‌‌‌/Y45P-L6ZV] (last updated Jan. 15, 2016, 5:43 PM); Former Ohio Officer Charged with Murder Had ‘Issues’, Says Previous Boss, Guardian (Dec. 12, 2015, 1:45 PM), https://‌‌‌www.theguardian.com‌‌‌/us-news‌‌‌/2015‌‌‌/dec‌‌‌/12‌‌‌/former-ohio-police-officer-charged-murder-previous-issues [https://‌‌‌perma.cc‌‌‌/VB9K-CCQC]. Jenkins was later acquitted of the murder charge but convicted of reckless homicide for a separate incident where he shot his neighbor in the head. Ex‑Deputy Gets Prison for Neighbor’s Shooting Death, Associated Press, https://‌‌‌apnews.com‌‌‌/general-news-0c4bb54604354ea99da014a828a175ed [https://‌‌‌perma.cc‌‌‌/6Z9S-MU93] (last updated Dec. 2, 2017, 8:04 AM). ↑
103. See Alaa Elassar & Sara Smart, Cheerleader Olivia Flores Was About to Graduate. Instead, Her Family Planned Her Funeral, CNN (Sept. 2, 2024, 5:20 AM), https://‌‌‌edition.cnn.com‌‌‌/2024‌‌‌/09‌‌‌/02‌‌‌/us‌‌‌/minnesota-trooper-shane-roper-manslaughter‌‌‌/index.html [https://‌‌‌perma.cc‌‌‌/8M82-76QD]; Paul Blume, MN Trooper Charged in Deadly Crash: Dashcam Video Shows Previous Wrecks, Fox9 (July 23, 2024, 6:42 PM), https://‌‌‌www.fox9.com‌‌‌/news‌‌‌/mn-trooper-charged-deadly-crash-dashcam-video-shows-previous-wrecks [https://‌‌‌perma.cc‌‌‌/7VF5-YW5G]. As of February 2025, charges against Roper for manslaughter and criminal vehicular homicide, among others, were still pending. See Former State Trooper Shane Roper’s Evidence Arguments to Continue Through Spring, KAAL TV, https://‌‌‌www.kaaltv.com‌‌‌/news‌‌‌/former-state-trooper-shane-roper-to-appear-in-court-on-wednesday [https://‌‌‌perma.cc‌‌‌/JKD8-J8ZP] (last updated Feb. 12, 2025, 4:31 PM). ↑
104. Adrian Sainz & Jonathan Matisse, Former Memphis Officer Charged in Tyre Nichols’ Death Had Some Violations in Prior Prison Guard Job, Associated Press (Dec. 1, 2023, 5:25 PM), https://‌‌‌apnews.com‌‌‌/article‌‌‌/tyre-nichols-demetrius-haley-prison-guard-e50f31af381b3398e2b479783e2f34f8 [https://‌‌‌perma.cc‌‌‌/AS9M-8JTW]. As of late 2024, Haley had already been convicted in federal court of obstructing justice and conspiracy in connection with Nichols’s death, but his state murder charges are still pending. See Megan Fayard et al., Verdicts Announced in Tyre Nichols Federal Trial; Ex‑Officers Taken Into Custody, WREG, https://‌‌‌wreg.com‌‌‌/news‌‌‌/local‌‌‌/tyre-nichols‌‌‌/jury-deliberating-in-tyre-nichols-federal-trial [https://‌‌‌perma.cc‌‌‌/7ZQE-4G5N] (last updated Oct. 3, 2024, 10:09 PM). ↑
105. Sainz & Matisse, supra note 104. ↑
106. Jacob Sullum, Handwritten Notes Document the Collapse of the Phony Story that Led to a Deadly Houston Drug Raid, Reason (Dec. 9, 2019, 1:15 PM), https://‌‌‌reason.com‌‌‌/2019‌‌‌/12‌‌‌/09‌‌‌/handwritten-notes-document-the-collapse-of-the-phony-story-that-led-to-a-deadly-houston-drug-raid [https://‌‌‌perma.cc‌‌‌/8L7T-X6HH]. ↑
107. See Nicole Hensley, Ex‑Houston Cop Gerald Goines Routinely Lied During Drug Buys for a Decade, Court Rules, Hou. Chron., https://‌‌‌www.houstonchronicle.com‌‌‌/news‌‌‌/houston-texas‌‌‌/crime‌‌‌/article‌‌‌/Gerald-Goines-Rulings-17715972.php [https://‌‌‌perma.cc‌‌‌/2LXY-4PU8] (last updated Jan. 19, 2023, 8:46 AM); History of Complaints Against Officer in Deadly Raid, Fox 26 (Feb. 20, 2019, 12:53 AM), https://‌‌‌www.fox26houston.com‌‌‌/news‌‌‌/history-of-complaints-against-officer-in-deadly-raid [https://‌‌‌perma.cc‌‌‌/KA38-AWUC]. ↑
108. See Brian Karl Finch et al., Using Crowd‑Sourced Data to Explore Police‑Related‑Deaths in the United States (2000–2017): The Case of Fatal Encounters, 6 Open Health Data 1 (2019) (noting the lack of reliable federal government data regarding police fatalities); Andrew Ba Tran et al., As Fatal Police Shootings Increase, More Go Unreported, Wash. Post (Dec. 6, 2022, 6:30 AM), https://‌‌‌www.washingtonpost.com‌‌‌/investigations‌‌‌/interactive‌‌‌/2022‌‌‌/fatal-police-shootings-unreported [https://‌‌‌perma.cc‌‌‌/GMM9-LLBQ] (noting that the FBI’s police killings database contains only approximately one‑third of police killings nationally over a seven‑year period from 2015–2021); Tom McCarthy, The Uncounted: Why the US Can’t Keep Track of People Killed by Police, Guardian (Mar. 18, 2015, 10:19 AM), https://‌‌‌www.theguardian.com‌‌‌/us-news‌‌‌/2015‌‌‌/mar‌‌‌/18‌‌‌/police-killings-government-data-count [https://‌‌‌perma.cc‌‌‌/YZA6-ZVW5] (explaining the federal government’s reliance on local law enforcement agencies to report data on police killings). ↑
109. Zimring, supra note 16, at 25–40, 105–06; Tiffany R. Murphy, When Numbers Lie: The Underreporting of Police Justifiable Homicides, 21 Berkeley J. Crim. L. 42, 47–53 (2016); Elda Celislami et al., Strategic Bureaucratic Opacity: Evidence from Death Investigation Laws and Police Killings 1‍–‍7 (2023), https://‌‌‌docs.iza.org‌‌‌/dp16609.pdf [https://‌‌‌perma.cc‌‌‌/A3D9-4G7M] (describing how relevant government agencies fail to properly track police killings). ↑
110. See Zimring, supra note 16, at 28–29, 150; Scott Jeffrey & W. Kip Viscusi, The Locale and Damages of Fatal Policing, 99 Denv. L. Rev. 37, 47–48 (2021). ↑
111. Phillip M. Stinson, Sr. & Stephen L. Brewer, Jr., Federal Civil Rights Litigation Pursuant to 42 U.S.C. 1983 as a Correlate of Police Crime, 30 Crim. Just. Pol’y Rev. 223, 225 (2019). ↑
112. Id. ↑
113. See Zimring, supra note 16, at 25 (noting that for many years county coroners “substantially underreported” killings by police, and thus government agencies failed to analyze whether those killings were legal); Tim Arango & Shaila Dewan, More Than Half of Police Killings Are Mislabeled, New Study Says, N.Y. Times (Sept. 30, 2021), https://‌‌‌www.nytimes.com‌‌‌/2021‌‌‌/09‌‌‌/30‌‌‌/us‌‌‌/police-killings-undercounted-study.html [https://‌‌‌perma.cc‌‌‌/MJ9F-DJGP]; Fablina Sharara et al., Fatal Police Violence by Race and State in the USA, 1980–2019: A Network Meta‑Regression, 398 Lancet 1239 (2021). ↑
114. Radley Balko, How Medical Examiners Shield Violent Cops from Scrutiny, New Republic (Nov. 28, 2023), https://‌‌‌newrepublic.com‌‌‌/article‌‌‌/176956‌‌‌/medical-examiners-shield-violent-cops-scrutiny [https://‌‌‌perma.cc‌‌‌/25XA-WL8G]. ↑
115. Id. See generally Osagie Obasogie, Excited Delirium and Police Use of Force, 107 Va. L. Rev. 1545 (2021). ↑
116. Zimring, supra note 16, at 25. ↑
117. See Police Violence Map, supra note 15 (noting that between 2013 and 2024, 98.2 percent of police killings resulted in no criminal charges against any officer). ↑
118. See Kate Levine, Who Shouldn’t Prosecute the Police, 101 Iowa L. Rev. 1447, 1465–72 (2016) (discussing prosecutors’ potential conflicts and biases when faced with decisions about whether to pursue criminal charges against police officers). Conversely, a prosecutor’s decision to pursue criminal charges is not always a reliable indicator that the conduct was criminal. Avidan Y. Cover, Reconstructing the Right Against Excessive Force, 68 Fla. L. Rev. 1773, 1777 (2016). ↑
119. E.g., Lee, supra note 98 at 637–39, 655–58 (criticizing use of force laws that focus on the reasonableness of an officer’s beliefs, but not on the reasonableness of the officer’s actions); Osagie K. Obasogie & Zachary Newman, The Endogenous Fourth Amendment: An Empirical Assessment of How Police Understandings of Excessive Force Become Constitutional Law, 104 Cornell L. Rev. 1281, 1290‍–‍94 (2019) (critiquing vague police use of force laws that afford broad deference to officer discretion); Rachel A. Harmon, When Is Police Violence Justified?, 102 Nw. U. L. Rev. 1119 (2008) (deploring the Supreme Court’s “deeply impoverished” standards for assessing whether police use of force is justified). ↑
120. See Joanna C. Schwartz, Qualified Immunity’s Boldest Lie, 88 U. Chi. L. Rev. 605, 613–‍18 (2021). ↑
121. See, e.g., DOJ, Albuquerque Investigation, supra note 19 (finding that majority of homicides by Albuquerque police officers over four‑year period were not legally justified); C.R. Div., U.S. Dep’t of Just. & N. Dist. Ohio, U.S. Atty’s Off., Investigation of The Cleveland Division of Police 14–17 (2014) [hereinafter DOJ, Cleveland Investigation], https://‌‌‌www.justice.gov‌‌‌/sites‌‌‌/default‌‌‌/files‌‌‌/opa‌‌‌/press-releases‌‌‌/attachments‌‌‌/2014‌‌‌/12‌‌‌/04‌‌‌/cleveland‌‌‌_division‌‌‌_of‌‌‌_police‌‌‌_findings‌‌‌_letter.pdf [https://‌‌‌perma.cc‌‌‌/9X75-VHFM] (finding that Cleveland police officers regularly used deadly force without justification); DOJ, Minneapolis Investigation, supra note 17, at 11–16. ↑
122. DOJ, Albuquerque Investigation, supra note 19, at 10–12. ↑
123. Id. ↑
124. Id. at 12. ↑
125. Id. at 11–12. ↑
126. DOJ, Minneapolis Investigation, supra note 17, at 11–16; see also Ernesto Londoño, Glenn Thrush, Mitch Smith & Dan Simmons, Minneapolis Police Used Illegal, Abusive Practices for Years, Justice Dept. Finds, N.Y. Times (June 16, 2023), https://‌‌‌www.nytimes.com‌‌‌/2023‌‌‌/06‌‌‌/16‌‌‌/us‌‌‌/doj-report-minneapolis-police.html [https://‌‌‌perma.cc‌‌‌/KN59-BBJG]. ↑
127. C.R. Div., U.S. Dep’t of Just. & Civ. Div., W. Dist. of Ky., U.S. Atty’s Off., Investigation of the Louisville Metro Police Department and Louisville Metro Government 11–17 (2023) [hereinafter DOJ, Louisville Investigation], https://‌‌‌www.justice.gov‌‌‌/crt‌‌‌/case-document‌‌‌/file‌‌‌/1572951‌‌‌/download [https://‌‌‌perma.cc‌‌‌/FK35-L37L]. ↑
128. Bobbi Bernstein, The Upside Down World of Excessive Force Prosecutions, 70 Dep’t Just. J. Fed. L. & Prac. 35, 36, 38–39 (2022). ↑
129. Id. ↑
130. See David D. Kirkpatrick et al., Why Many Traffic Stops Turn Deadly, N.Y. Times, https://‌‌‌www.nytimes.com‌‌‌/2021‌‌‌/10‌‌‌/31‌‌‌/us‌‌‌/police-traffic-stops-killings.html [https://‌‌‌perma.cc‌‌‌/9YZM-RK8A] (last updated Nov. 30, 2021); see also Thompson, supra note 100 (discussing dozens of police killings against unarmed Black people). ↑
131. See, e.g., Elle Lett et al., Racial Inequity in Fatal US Police Shootings, 2015–2020, 75 J. Epidemiology & Cmty. Health 394 (2020). ↑
132. Id. at 395. ↑
133. See Samuel Carton et al., Identifying Police Officers at Risk of Adverse Events, 22 Proc. Ass’n for Comput. Mach. SIGKDD Int’l Conf. on Knowledge Discovery & Data Mining 67, 70 (2016) (concluding that some police officers are, due to prior behavioral history and other factors, “more at risk of involvement in an adverse event than others”); see also Greg Stoddard et al., Predicting Police Misconduct 5 (Nat’l Bureau of Econ. Rsch., Working Paper No. 32432, 2024), http://‌‌‌www.nber.org‌‌‌/papers‌‌‌/w32432 [https://‌‌‌perma.cc‌‌‌/5TXS-2QAU] (finding that that the officers in the highest risk distribution for future misconduct have a “greatly elevated” risk compared to other officers). ↑
134. See James P. McElvain & Augustine J. Kposowa, Police Officer Characteristics and the Likelihood of Using Deadly Force, 35 Crim. Just. & Behav. 505, 506 (2008). ↑
135. Michael D. White & Robert J. Kane, Pathways to Career-Ending Police Misconduct: An Examination of Patterns, Timing, and Organizational Responses to Officer Malfeasance in the NYPD, 40 Crim. Just. & Behav. 1301 (2013). ↑
136. Robert J. Kane & Michael D. White, Jammed Up: Cops, Police Misconduct, and the New York City Police Department 81–82 (2012); see also id. at 118 (concluding that “officers who receive citizen complaints are more likely than others to engage in career‑ending misconduct,” but noting that the value of this data may be limited because those officers may be subjected to more scrutiny because of early complaints). ↑
137. White & Kane, supra note 135, at 1317. ↑
138. Id. ↑
139. Rozema & Schanzenbach, supra note 8, at 226. ↑
140. Id. at 227. ↑
141. Id. at 227, 254. ↑
142. Id. at 255. ↑
143. See Max Schanzenbach, Policing the Police: Personnel Management and Police Misconduct, 75 Vand. L. Rev. 1523, 1527 (2022). ↑
144. Id. ↑
145. Id. at 1561. ↑
146. Stoddard et al., supra note 133, at 4. ↑
147. Id. at 5, 15–16. ↑
148. Id. at 5–6, 22–23. ↑
149. Charles D. Sarchione et al., Prediction of Dysfunctional Job Behaviors Among Law Enforcement Officers, 83 J. Applied Psych. 904, 906, 909–10 (1998). ↑
150. Id. at 906. ↑
151. Id. at 910. ↑
152. Jack R. Greene et al., Police Integrity And Accountability In Philadelphia: Predicting And Assessing Police Misconduct, at ii (2004), https://‌‌‌www.ojp.gov‌‌‌/pdffiles1‌‌‌/nij‌‌‌/grants‌‌‌/207823.pdf [https://‌‌‌perma.cc‌‌‌/VUC7-UZET]. ↑
153. Id. at 34–35. ↑
154. Id. at 41–42. ↑
155. Id. at xi. ↑
156. L.A. Cnty. Off. of Independent Rev., Review of Los Angeles Sheriff’s Background Investigation Process (2009), http://‌‌‌shq.lasdnews.net‌‌‌/shq‌‌‌/LASD‌‌‌_Oversight‌‌‌/LASDBackground.pdf [https://‌‌‌perma.cc‌‌‌/GN99-8XHZ]. ↑
157. Id. at 11–23. ↑
158. Id. at 11–12. ↑
159. Id. at 17–20. ↑
160. Id. at 1–3, 10–23. ↑
161. McElvain & Kposowa, supra note 134, at 514. ↑
162. Id. at 511, 515, 517. ↑
163. Carton et al., supra note 133, at 67–69. ↑
164. Id. at 4. ↑
165. Id. ↑
166. Id. at 2. ↑
167. Id. at 6. ↑
168. Edika G. Quispe‑Torreblanca & Neil Stewart, Causal Peer Effects in Police Misconduct, 3 Nature Hum. Behav. 797 (2019); see also Katherine J. Wu, Study Finds Misconduct Spreads Among Police Officers Like Contagion, PBS (May 27, 2019), https://‌‌‌www.pbs.org‌‌‌/wgbh‌‌‌/nova‌‌‌/article‌‌‌/police-misconduct-peer-effects [https://‌‌‌perma.cc‌‌‌/R3VF-Y2L5] (discussing results of study). ↑
169. Quispe‑Torreblanca & Stewart, supra note 168, at 805. ↑
170. Id. ↑
171. See Stigma, Prejudice and Discrimination Against People with Mental Illness, Am. Psychiatric Ass’n, https://‌‌‌www.psychiatry.org‌‌‌/patients-families‌‌‌/stigma-and-discrimination [https://‌‌‌perma.cc‌‌‌/FT83-CVDU] (discussing numerous studies assessing stigma around mental health). ↑
172. Sheena Johnson et al., The Experience of Work‑Related Stress Across Occupations, 20 J. of Managerial Psych. 178, 184–85 (2005); Shannon L. Wagner et al., Systematic Review of Posttraumatic Stress Disorder in Police Officers Following Routine Work‑Related Critical Incident Exposure, 63 Am. J. Indus. Med. 600, 613 (2020). ↑
173. John M. Violanti et al., Post‑Traumatic Stress Symptoms and Cortisol Patterns Among Police Officers, 30 Policing: Int’l J. of Police Strategies & Mgmt. 189, 199 (2007) [hereinafter Violanti et al., Post‑Traumatic Stress Symptoms]; see also John M. Violanti et al., The Buffalo Cardio‑Metabolic Occupational Police Stress (BCOPS) Pilot Study: Methods and Participant Characteristics, 16 Annals of Epidem. 48 (2006). ↑
174. Michelle Lilly & Shawn Curry, Survey: What Is The State of Officer Mental Health in 2020?, POLICE1 (Sept. 14, 2020), https://‌‌‌www.police1.com‌‌‌/health-wellness‌‌‌/articles‌‌‌/survey-what-is-the-state-of-officer-mentalhealth-in-2020-oXldKxzNnuebFluY [https://‌‌‌perma.cc‌‌‌/J6XB-T45J]; see also Am. Psychiatric Ass’n, What is Posttraumatic Stress Disorder (PTSD)?, https://‌‌‌www.psychiatry.org‌‌‌/patients-families‌‌‌/ptsd‌‌‌/what-is-ptsd [https://‌‌‌perma.cc‌‌‌/82AA-CLZZ] (“PTSD affects approximately 3.5 percent of U.S. adults every year.”). ↑
175. Lilly & Curry, supra note 174. ↑
176. Mihailis E. Diamantis, Police Mental Health, 109 Iowa L. Rev. 2063, 2086, 2115 (2024). ↑
177. Violanti et al., Post‑Traumatic Stress Symptoms, supra note 173, at 197. ↑
178. Casey T. Taft et al., Social Information Processing in Anger Expression and Partner Violence in Returning U.S. Veterans, 28 J. Traumatic Stress 314, 320 (2015); see also Diamantis, supra note 176, at 2086–87. ↑
179. Am. Psychiatric Ass’n, Diagnostic & Stat. Manual of Mental Disorders, Posttraumatic Stress Disorder (5th ed. 2022); see also Stephen M. Soltys, Officer Wellness: A Focus on Mental Health, 40 S. Ill. U. L. Rev. 439, 441 (2016); Casey T. Taft et al., Anger and Aggression in PTSD, 14 Current Op. Psych. 67, 67 (2017). ↑
180. See Emma L. Barrett et al., Associations Between Substance Use, Post‑Traumatic Stress Disorder and the Perpetration of Violence: A Longitudinal Investigation, 39 Addictive Behavs. 1075, 1076 (2014) (citing additional studies on this point). ↑
181. Eric B. Elbogen, et al., Violent Behaviour and Post‑Traumatic Stress Disorder in US Iraq and Afghanistan Veterans, 204 British J. Psychiatry 368, 368 (2014). ↑
182. Id. at 370. ↑
183. See Ted R. Miller & Deborah M. Galvin, Assessing and Responding to Substance Misuse in Law Enforcement, 40 S. Ill. U. L.J. 475, 477–80 (2016) (summarizing numerous studies on this topic); James F. Ballenger et al., Patterns and Predictors of Alcohol Use in Male and Female Urban Police Officers, 20 Am. J. Addictions 21, 21 (2010) (citing studies revealing that between 23 and 25 percent of police officers had “serious alcohol problems,” but noting need for broader and more recent research on this topic); Paul B. Rinkoff, Prevalence, Pattern, and a Leader’s Intervention—The Impact of Alcohol Abuse in Police and Public Safety Organizations, 8 J. Cmty. Safety & Well‑Being S46 (2023) (collecting various studies of police officer substance use, several of which found that police officers abuse alcohol at greater rates than the general population); Butler Center for Research, Alcohol Abuse Among Law Enforcement Officers (Nov. 1, 2015), https://‌‌‌www.hazeldenbettyford.org‌‌‌/research-studies‌‌‌/addiction-research‌‌‌/alcohol-abuse-police [https://‌‌‌perma.cc‌‌‌/4XXF-BC5Y] (citing studies showing that between 11 and 37 percent of police officers report problematic consumption of alcohol); Indra Cidambi, Police and Addiction, Psych. Today (Mar. 30, 2018), https://‌‌‌www.psychologytoday.com‌‌‌/us‌‌‌/blog‌‌‌/sure-recovery‌‌‌/201803‌‌‌/police-and-addiction [https://‌‌‌perma.cc‌‌‌/Z5QL-GXXZ] (reporting that approximately one in four police officers suffer from a substance use disorder, compared to less than 10 percent of the general population). ↑
184. See Miller & Galvin, supra note 183, at 477 (“It is well established that substance misuse raises impulsivity and the risk of violence.”). ↑
185. E.g., Jonathan Dienst & Brian Thompson, Cop Driving in Deadly Staten Island Crash Had BAC Three Times Limit: Sources, NBC N.Y. (Apr. 24, 2015), http://‌‌‌www.nbcnewyork.com‌‌‌/news‌‌‌/local‌‌‌/Linden-Police-Officer-Pedro-Abad-Blood-AlcoholContent-Three-Times-Legal-Limit-Deadly-Staten-Island-Crash-301278841.html [https://‌‌‌perma.cc‌‌‌/E95L-22YD] (last updated Apr. 25, 2015) (discussing police officer with history of multiple DUI arrests and previous car accidents who killed someone while driving with a 0.24 blood alcohol level); Scott Gordon, FW Cop in Fatal Wreck Had Checkered Record, NBC DFW (Jan. 22, 2010), https://‌‌‌www.nbcdfw.com‌‌‌/news‌‌‌/local‌‌‌/fw-cop-in-fatal-wreck-had-checkered-record‌‌‌/1892276 [https://‌‌‌perma.cc‌‌‌/EZ2Q-K3AB] (last updated Jan. 23, 2010) (officer with history of alcohol‑related misconduct charged with manslaughter for killing a woman while driving under the influence). ↑
186. Diamantis, supra note 176, at 2068. ↑
187. Soltys, supra note 179, at 443. ↑
188. DOJ, Minneapolis Investigation, supra note 17, at 84. ↑
189. Stoddard et al., supra note 133, at 7; see also id. at 29–30 (opining that more focus on officer wellness would help reduce risk of misconduct). ↑
190. Jeffrey J. Noble & Geoffrey P. Alpert, Managing Accountability Systems for Police Conduct, at xiii (2008). ↑
191. Id. at 207–08 (noting that appropriate disciplinary intervention after initial misconduct is critical to changing officer behavior, and inadequate or unfair discipline may encourage additional misconduct); Hillary Rau et al., State Regulation of Policing: POST Commissions and Police Accountability, 11 U.C. Irvine L. Rev. 1349, 1380 (2021) (“Too often, officers who commit serious acts of violence or misconduct remain employed by police departments or find new police work after being fired.”). ↑
192. See Samuel Walker & Carol Archbold, The New World of Police Accountability 177–80 (3d ed. 2020); Schanzenbach, supra note 143, at 1527, 1561; Carton et al., supra note 133, at 68 (“A small minority of officers account for the majority of adverse events.”); Denver Off. of the Indep. Monitor, 2013 Semiannual Report 3 (2013), https://‌‌‌denvergov.org‌‌‌/files‌‌‌/assets‌‌‌/public‌‌‌/v‌‌‌/1‌‌‌/independent-monitor‌‌‌/documents‌‌‌/2013semiannualreport‌‌‌_oim.pdf [https://‌‌‌perma.cc‌‌‌/5RHZ-RH8J] (finding that less than 1 percent of Denver Sheriff’s Department officers were responsible for more than 15 percent of complaints). ↑
193. See supra Part II.B. ↑
194. Louise Radnofsky et al., Why Some Problem Cops Don’t Lose Their Badges, Wall St. J., https://‌‌‌www.wsj.com‌‌‌/articles‌‌‌/why-some-problem-cops-dont-lose-their-badges-1483115066 [https://‌‌‌perma.cc‌‌‌/FCV3-RK35] (last updated Dec. 30, 2016, 12:10 PM). ↑
195. Taggart & Hayes, supra note 17. ↑
196. Kendall Taggart & Mike Hayes, Here’s Why BuzzFeed News Is Publishing Thousands of Secret NYPD Documents, BuzzFeed News (Apr. 16, 2018, 3:33 AM), https://‌‌‌www.buzzfeednews.com‌‌‌/article‌‌‌/kendalltaggart‌‌‌/nypd-police-misconduct-database-explainer [https://‌‌‌perma.cc‌‌‌/JM2X-S7QW]. ↑
197. Taggart & Hayes, supra note 17. ↑
198. Id. ↑
199. John Kelly & Mark Nichols, We Found 85,000 Cops Who’ve Been Investigated for Misconduct. Now You Can Read Their Records, USA Today, https://‌‌‌www.usatoday.com‌‌‌/in-depth‌‌‌/news‌‌‌/investigations‌‌‌/2019‌‌‌/04‌‌‌/24‌‌‌/usa-today-revealing-misconduct-records-police-cops‌‌‌/3223984002 [https://‌‌‌perma.cc‌‌‌/ECB4-ZAJX] (last updated June 11, 2020, 9:48 AM). ↑
200. Id. ↑
201. Max Nesterak & Tony Webster, The Bad Cops: How Minneapolis Protects Its Worst Police Officers Until It’s Too Late, Minn. Reformer (Dec. 15, 2020, 5:30 AM), https://‌‌‌minnesotareformer.com‌‌‌/2020‌‌‌/12‌‌‌/15‌‌‌/the-bad-cops-how-minneapolis-protects-its-worst-police-officers-until-its-too-late [https://‌‌‌perma.cc‌‌‌/A5WP-9Z32]. ↑
202. Id.; see also DOJ, Minneapolis Investigation, supra note 17, at 67–77 (decrying ineffective accountability systems in the Minneapolis Police Department); Minn. Dep’t of Hum. Rts., Investigation into the City of Minneapolis and the Minneapolis Police Department 48–63 (2022), https://‌‌‌mn.gov‌‌‌/mdhr‌‌‌/assets‌‌‌/Investigation%20into%20the%20City%20of%20Minneapolis%20and%20the%20Minneapolis%20Police%20Department‌‌‌_tcm1061-526417.pdf [https://‌‌‌perma.cc‌‌‌/X45R-KP69]. ↑
203. Keith L. Aleander et al., The Hidden Billion‑Dollar Cost of Repeated Police Misconduct, Wash. Post (Mar. 9, 2022), https://‌‌‌www.washingtonpost.com‌‌‌/investigations‌‌‌/interactive‌‌‌/2022‌‌‌/police-misconduct-repeated-settlements [https://‌‌‌perma.cc‌‌‌/7DUD-DTZA]. ↑
204. Id. ↑
205. Id.; see also Jasmine Hilton, Pr. George’s Police Officer Clarence Black Acquitted of Assault, Wash. Post (June 15, 2023), https://‌‌‌www.washingtonpost.com‌‌‌/dc-md-va‌‌‌/2023‌‌‌/06‌‌‌/15‌‌‌/prince-georges-police-acquittal-assault [https://‌‌‌perma.cc‌‌‌/LC9Z-5DAH]. ↑
206. See Laurence Du Sault & Geoffrey King, Senior Officials Ordered Destruction of Vallejo Police Shooting Evidence, Open Vallejo (Feb. 5, 2023), https://‌‌‌openvallejo.org‌‌‌/2023‌‌‌/02‌‌‌/05‌‌‌/vallejo-destroyed-evidence-of-police-killings [https://‌‌‌perma.cc‌‌‌/D73B-R7M4]. ↑
207. See Geoffrey King, Vallejo Police Bend Badges to Mark Fatal Shootings, Open Vallejo (July 28, 2020) [hereinafter King, Vallejo Police], https://‌‌‌openvallejo.org‌‌‌/2020‌‌‌/07‌‌‌/28‌‌‌/vallejo-police-bend-badge-tips-to-mark-fatal-shootings [https://‌‌‌perma.cc‌‌‌/6FY9-3PAK]; Geoffrey King, American Canyon Officer in Vallejo Shooting Linked to Badge Bending, Open Vallejo (Jan. 12, 2024), https://‌‌‌openvallejo.org‌‌‌/2024‌‌‌/01‌‌‌/12‌‌‌/american-canyon-officer-in-vallejo-shooting-linked-to-badge-bending [https://‌‌‌perma.cc‌‌‌/5AF2-4HAU]. ↑
208. See King, Vallejo Police, supra note 207. ↑
209. Armacost, supra note 18, at 455. ↑
210. Id. at 480–81; see also About, Chi. Torture Just. Mem’ls, https://‌‌‌chicagotorture.org‌‌‌/about [https://‌‌‌perma.cc‌‌‌/6HPG-VGDS] (describing survivors of torture by Chicago police officers including Jon Burge). ↑
211. Armacost, supra note 18, at 481–82. ↑
212. Carbado, supra note 18, at 1515–16. ↑
213. Id. at 1516. ↑
214. Vida B. Johnson, KKK in the PD, 23 Lewis & Clark L. Rev. 205, 211, 218–‍32 (2019); Jamie Kalven, See No Evil, Intercept (Dec. 9, 2023), https://‌‌‌theintercept.com‌‌‌/2023‌‌‌/12‌‌‌/09‌‌‌/chicago-police-department-racism-civilian-complaints [https://‌‌‌perma.cc‌‌‌/28PF-5XXM] (documenting the extensive history of racist behavior by Chicago police officers, and numerous complaints of racist conduct against officers that the city failed to sustain). ↑
215. See Lett et al., supra note 131, at 394–97 (showing that officers kill unarmed Black people at a rate three times higher than they kill unarmed White people); Frank Edwards et al., Risk of Being Killed by Police Use of Force in the United States by Age, Race‑Ethnicity, and Sex, 116 Proc. Nat’l Acad. Sci. 16793, 16793 (2019) (studying revealing that “people of color face a higher likelihood of being killed by police than do [W]hite men and women,” and that Black men face the highest risk); see also Alyssa Villanueva, Note, Police Terror and Officer Indemnification, 13 Hastings Race & Poverty L.J. 201, 205–‍08 (2016) (arguing that officer killings are a “[m]anifestation of [r]acism”). ↑
216. Thompson, supra note 100. ↑
217. Id. ↑
218. Howey & Rosenfield, supra note 18. ↑
219. Chang Che, 6 Ex‑Officers Plead Guilty to State Charges in Torture of Two Black Men, N.Y. Times (Aug. 14, 2023), https://‌‌‌www.nytimes.com‌‌‌/2023‌‌‌/08‌‌‌/14‌‌‌/us‌‌‌/mississippi-officers-guilty-torture.html [https://‌‌‌perma.cc‌‌‌/Q9PC-PEAZ]. ↑
220. Howey & Rosenfield, supra note 18. ↑
221. Id. ↑
222. Id. ↑
223. Id. ↑
224. See Moran, supra note 17, at 854–65. ↑
225. Id. at 854–55. ↑
226. Id. at 856–58. ↑
227. Id. at 859–61 (referencing reports on Cleveland, San Jose, and Connecticut State police departments concluding that their complaint review processes were heavily biased in favor of police); see also DOJ, Louisville Investigation, supra note 127, at 77 (“[I]nvestigators draw inferences in favor of officers or against civilians that are not supported by the evidence, seeking to justify officers’ actions.”). ↑
228. Craig B. Futterman et al., The Use of Statistical Evidence to Address Police Supervisory and Disciplinary Practices: The Chicago Police Department’s Broken System, 1 DePaul J. Soc. Just. 251, 268 (2018). ↑
229. Id. at 265. ↑
230. DOJ, Cleveland Investigation, supra note 121, at 5. ↑
231. DOJ, Louisville Investigation, supra note 127, at 19–20. ↑
232. DOJ, Minneapolis Investigation, supra note 17, at 9–22, 75. ↑
233. Id. at 75–76. ↑
234. Id. ↑
235. Moran, supra note 17, at 866–67, 881–82; Rushin, supra note 17; Hanner, supra note 17, at 61–62; Taggart & Hayes, supra note 17 (describing misconduct records from more than 300 New York Police Department officers who committed offenses like lying, cheating, and assault, but kept their jobs). ↑
236. DOJ, Louisville Investigation, supra note 127, at 74, 78. ↑
237. Id. at 79. ↑
238. Id. ↑
239. Minn. Dep’t of Hum. Rts., supra note 202, at 57. ↑
240. Rich Morin et al., Behind the Badge, Pew Rsch. Ctr. (Jan. 11, 2017), http://‌‌‌www.pewsocialtrends.org‌‌‌/2017‌‌‌/01‌‌‌/11‌‌‌/behind-the-badge [https://‌‌‌perma.cc‌‌‌/5V3Z-W555]; U.S. Comm’n on C.R., Police Use of Force: An Examination of Modern Policing Practices 56, 62 (2015), https://‌‌‌www.usccr.gov‌‌‌/files‌‌‌/pubs‌‌‌/2018‌‌‌/11-15-Police-Force.pdf [https://‌‌‌perma.cc‌‌‌/C7HC-LDTM]. ↑
241. See Debra Livingston, Police Reform and the Department of Justice: An Essay on Accountability, 2 Buff. Crim. L. Rev. 817, 820–21, 838 (1999); Rachel Moran, In Police We Trust, 62 Vill. L. Rev. 953, 996 (2017) (discussing problems with police departments’ use of early warning systems). ↑
242. Livingston, supra note 241, at 839–40; Mary D. Fan, Smarter Early Intervention Systems for Police in an Era of Pervasive Recording, 2018 U. Ill. L. Rev. 1705, 1707; David A. Harris, How Accountability‑Based Policing Can Reinforce—or Replace—the Fourth Amendment Exclusionary Rule, 7 Ohio St. J. Crim. L. 149, 166 (2009); Moran, supra note 241, at 974–75. ↑
243. Harris, supra note 242, at 166; Livingston, supra note 241, at 820‍–‍21 (citing Samuel Walker, Achieving Police Accountability: Despite Well‑Publicized Failures, Citizen Complaint Review Boards Can Be an Effective Tool, Ctr. Crime, Cmtys. & Culture, Occasional Paper Series, 1998, at 6–7). ↑
244. See Andrew Ferguson, The Exclusionary Rule in the Age of Big Data, 72 Vand. L. Rev. 561, 626 (2019) (bemoaning the “long but ineffective history” of early warning systems). ↑
245. Futterman et al., supra note 228, at 279–80. ↑
246. Police Accountability Task Force Working Grp., Recommendations for Reform: Restoring Trust Between the Chicago Police and the Communities They Serve 15 (2016), https://‌‌‌chicagopatf.org‌‌‌/wp-content‌‌‌/uploads‌‌‌/2016‌‌‌/04‌‌‌/PATF‌‌‌_Final‌‌‌_Report‌‌‌_4‌‌‌_13‌‌‌_16-1.pdf [https://‌‌‌perma.cc‌‌‌/BM4W-Q6EJ]. ↑
247. Joanna C. Schwartz, Myths and Mechanics of Deterrence: The Role of Lawsuits in Law Enforcement Decisionmaking, 57 UCLA L. Rev. 1023, 1042, 1061–‍63 (2010). ↑
248. DOJ, Albuquerque Investigation, supra note 19, at 29. ↑
249. See Rachel A. Harmon, The Problem of Policing, 110 Mich. L. Rev. 761, 797 (2012) (explaining that supervisors who are considering discipline for a problematic officer face civil service rules that almost inevitably mean the decision will be the subject of a long and potentially costly arbitration and appeal process, which may incentivize administrators to simply ignore the misconduct and hope it doesn’t happen again). ↑
250. See, e.g., Kevin M. Keenan & Samuel Walker, An Impediment to Police Accountability? An Analysis of Statutory Law Enforcement Officers’ Bills of Rights, 14 B.U. Pub. Int. L.J. 185, 203–41 (2005) (discussing special protections that state Law Enforcement Officer Bills of Rights provide to officers suspected of misconduct, including limitations on who can investigate misconduct, when investigations can occur, and rights for officers to, for example, contest discipline and demand arbitration); Stephen Rushin, Police Union Contracts, 66 Duke L.J. 1191, 1208‍–‍12 (2017). ↑
251. Stephen Rushin, Police Arbitration, 74 Vand. L. Rev. 1023, 1052–53 (2021); Stephen A. Plass, Police Arbitration and the Public Interest, 37 Harv. BlackLetter L.J. 31 (2021). But see Michael Z. Green, Black and Blue Police Arbitration Reforms, 84 Ohio St. L.J. 243, 252–77 (2023) (critiquing the dominant narrative blaming arbitrators for decisions to reinstate terminated officers). ↑
252. See, e.g., Minn. Stat. § 13.43 subdiv. 2(a)(4)–(5) (2023) (exemplifying state law allowing public access to cases where discipline was imposed against an officer, but limiting access to information about complaints that did not result in discipline). ↑
253. Schanzenbach, supra note 143, at 1525–27; Rushin, supra note 250, at 1195–98, 1235–40. ↑
254. Caitlin J. Newell et al., Police Staff and Mental Health: Barriers and Recommendations for Improving Help‑Seeking, 23 Police Prac. & Rsch. 111, 111 (2022). ↑
255. Id. at 114. ↑
256. Jacqueline M. Drew & Sherri Martin, A National Study of Police Mental Health in the USA: Stigma, Mental Health and Help‑Seeking Behaviors, 36 J. Police & Crim. Psych. 295 (2021). ↑
257. Soltys, supra note 179, at 443. ↑
258. DOJ, Minneapolis Investigation, supra note 17, at 84. ↑
259. See infra text accompanying notes 130–133. ↑
260. Morning Consult & Politico, National Tracking Poll #210595 4‍–‍5 (2021), https://‌‌‌assets.morningconsult.com‌‌‌/wp-uploads‌‌‌/2021‌‌‌/05‌‌‌/25072929‌‌‌/210595‌‌‌_crosstabs‌‌‌_POLITICO‌‌‌_Adults‌‌‌_v1‌‌‌_SH.pdf [https://‌‌‌perma.cc‌‌‌/7JE7-UK2U]. ↑
261. Justin T. Pickett et al., The American Racial Divide in Fear of the Police, 60 J. Criminology 291, 292 (2022); see also Patia Braithwaite & Tiffanie Graham, The Toll of Police Violence on Black People’s Mental Health, N.Y. Times (May 25, 2023), https://‌‌‌www.nytimes.com‌‌‌/interactive‌‌‌/2023‌‌‌/05‌‌‌/25‌‌‌/well‌‌‌/mind‌‌‌/black-mental-health-police-violence.html [https://‌‌‌perma.cc‌‌‌/Y3V6-3PJ8]. ↑
262. Pickett et al., supra note 261, at 299, 302. Eleven percent of White respondents reported this fear (death at the hands of the police within the next five years), and 30 percent of people from other non‑White racial groups. Id. at 302. ↑
263. Id. at 299, 303. ↑
264. See Mai Stafford et al., Association Between Fear of Crime and Mental Health and Physical Functioning, 97 Am. J. Pub. Health 2076 (2007); see also David Ropeik, The Consequences of Fear, 5 EMBO Rep. (Special Issue) S56 (2004) (describing the detrimental physical and mental effects of chronic fear and stress). ↑
265. See Police Violence Map, supra note 15; Sam Levin, ‘It Never Stops’: Killings by US Police Reach Record High in 2022, Guardian, https://‌‌‌www.theguardian.com‌‌‌/us-news‌‌‌/2023‌‌‌/jan‌‌‌/06‌‌‌/us-police-killings-record-number-2022 [https://‌‌‌perma.cc‌‌‌/KPS4-6Y6F] (last updated Jan. 6, 2023, 10:50 AM) (quoting Breonna Taylor’s aunt bemoaning the “disheartening” persistence of police violence); Akbar, supra note 25 at 1803–04 (grappling with the seemingly unrelenting nature of police violence); Zimring, supra note 16, at 19 (“[T]he magnitude of harm inflicted by police killings makes it the single greatest problem in current circumstances in police‑community relations in the United States.”). ↑
266. See, e.g., Catherine L. Fisk & L. Song Richardson, Police Unions, 85 Geo. Wash. L. Rev. 712, 793–96 (2017) (discussing the importance of buy‑in from rank‑and‑file police for meaningful changes to happen in policing); Thaddeus L. Johnson & Natasha N. Johnson, Community and Officer Buy‑In Might Be Key to Police Reform, Conversation (Apr. 30, 2021), https://‌‌‌phys.org‌‌‌/news‌‌‌/2021-04-officer-buy-in-key-police-reform.html [https://‌‌‌perma.cc‌‌‌/KTM9-4P2U] (describing police department buy-in as a critical component of reform). ↑
267. See supra Section II.D. ↑
268. See infra Section III.B. ↑
269. See infra Section III.C. ↑
270. See Joanna C. Schwartz, Introspection Through Litigation, 90 Notre Dame L. Rev. 1055, 1089 (2015) (“Instead of recognizing police error as a significant and systemic concern, law enforcement officials often dismiss allegations of police misconduct, or acknowledge wrongdoing but place the blame on ‘bad apple’ officers.”). ↑
271. See Greg Mellen, Why Law Enforcement Is Facing Unprecedented Challenges in Hiring and Keeping Recruits, Police1 (Nov. 22, 2021, 10:41 AM), https://‌‌‌www.police1.com‌‌‌/police-recruiting‌‌‌/articles‌‌‌/why-law-enforcement-is-facing-unprecedented-challenges-in-hiring-and-keeping-recruits-pFiTKCXrne6ccNfB [https://‌‌‌perma.cc‌‌‌/W88Q-3D5S]; Int’l Ass’n of Chiefs of Police, The State of Recruitment: A Crisis for Law Enforcement, https://‌‌‌www.theiacp.org‌‌‌/sites‌‌‌/default‌‌‌/files‌‌‌/239416‌‌‌_IACP‌‌‌_RecruitmentBR‌‌‌_HR‌‌‌_0.pdf [https://‌‌‌perma.cc‌‌‌/V6JG-UMZL]; Ryan Young & Devon M. Sayers, Why Police Forces Are Struggling to Recruit and Keep Officers, CNN, https://‌‌‌www.cnn.com‌‌‌/2022‌‌‌/02‌‌‌/02‌‌‌/us‌‌‌/police-departments-struggle-recruit-retain-officers‌‌‌/index.html [https://‌‌‌perma.cc‌‌‌/FZ4J-V4C8] (last updated Feb. 3, 2022, 12:03 PM). ↑
272. See, e.g., Michelle Griffith, Walz Promises Thorough Investigation of State Patrol’s Fatal Shooting of Ricky Cobb, Minn. Reformer (Aug. 2, 2023, 4:49 PM), https://‌‌‌minnesotareformer.com‌‌‌/briefs‌‌‌/walz-promises-thorough-investigation-of-state-patrols-fatal-shooting-of-ricky-cobb [https://‌‌‌perma.cc‌‌‌/6CN9-HDTY] (discussing fatal shooting of Ricky Cobb II by state trooper after Cobb appeared to try to drive away from the officer during a traffic stop); Mara H. Gottfried, Daunte Wright Was Scared of Police, Mother Says in Emotional ‘Good Morning America’ Interview, Pioneer Press (Apr. 13, 2021‌‌‌/04‌‌‌/13‌‌‌/daunte-wright-parents-interview-good-morning-america-gma [https://‌‌‌perma.cc‌‌‌/TPE6-YDWJ] (last updated Dec. 1, 2021, 10:17 AM) (including the mother of Daunte Wright, who was killed by police during a traffic stop where he attempted to drive away, describing Mr. Wright’s fear of police). The state trooper who killed Mr. Cobb is currently facing criminal charges including murder, and the officer who killed Mr. Wright was convicted of second‑degree manslaughter. See Lou Raguse & Samantha Fischer, Trooper Charged with Murder in Traffic Stop Shooting of Ricky Cobb, Kare 11, https://‌‌‌www.kare11.com‌‌‌/article‌‌‌/news‌‌‌/local‌‌‌/trooper-charged-murder-traffic-stop-ricky-cobb‌‌‌/89-7eddfde9-c3e1-4cad-ae82-878f6386b36c [https://‌‌‌perma.cc‌‌‌/4SCM-ZN2E] (last updated Jan. 24, 2024, 10:09 PM); Becky Sullivan & Laurel Wamsley, Kim Potter, the Ex‑Cop Convicted in Daunte Wright’s Death, Is Sentenced to 2 Years, NPR, https://‌‌‌www.npr.org‌‌‌/2022‌‌‌/02‌‌‌/18‌‌‌/1081597518‌‌‌/kim-potter-daunte-wright-sentencing [https://‌‌‌perma.cc‌‌‌/LCQ7-VGKN] (last updated Feb. 18, 2022, 12:23 PM). ↑
273. See supra text accompanying notes 55–56. ↑
274. See Damali Ramirez et al., How the Push and Pull of Unions Is Hindering Police Reform Around the Country, USA Today (Dec. 18, 2022, 6:00 AM), https://‌‌‌www.usatoday.com‌‌‌/story‌‌‌/news‌‌‌/nation‌‌‌/2022‌‌‌/12‌‌‌/18‌‌‌/police-reform-unions-role‌‌‌/10849108002 [https://‌‌‌perma.cc‌‌‌/ZMM8-GWRU]; Noam Scheiber et al., How Police Unions Became Such Powerful Opponents to Reform Efforts, N.Y. Times (June 6, 2020), https://‌‌‌www.nytimes.com‌‌‌/2020‌‌‌/06‌‌‌/06‌‌‌/us‌‌‌/police-unions-minneapolis-kroll.html [https://‌‌‌perma.cc‌‌‌/4XD9-C5ZS] (last updated Apr. 2, 2021); JohnSullivan et al., In Fatal Shootings by Police, 1 in 5 Officers’ Names Go Undisclosed, Wash. Post (Apr. 1, 2016), https://‌‌‌www.washingtonpost.com‌‌‌/investigations‌‌‌/in-fatal-shootings-by-police-1-in-5-officers-names-go-undisclosed‌‌‌/2016‌‌‌/03‌‌‌/31‌‌‌/4bb08bc8-ea10-11e5-b0fd-073d5930a7b7‌‌‌_story.html [https://‌‌‌perma.cc‌‌‌/Q4G8-XL9K] (describing police unions’ opposing policies that address revealing the names of officers who shot and killed civilians); Benjamin Levin, What’s Wrong With Police Unions?, 120 Colum. L. Rev. 1333, 1340‍–‍46 (2020). ↑
275. Cf. Rozema & Schanzenbach, supra note 8, at 227 (concluding that officers in the top 5 percent of misconduct complaints were significantly more likely to engage in future misconduct than those with moderate or few complaints). ↑
276. Diamantis, supra note 176, at 2088–90, 2105–15. ↑
277. Although local government structures vary, municipal and county officials like mayors, city managers, city council, or county board members typically have authority to adopt some personnel policies that agencies within their jurisdiction are required to follow. See, e.g., Policies and Ordinances, Vt. League of Cities & Towns, https://‌‌‌www.vlct.org‌‌‌/topics‌‌‌/policies-and-ordinances [https://‌‌‌perma.cc‌‌‌/D4C9-EMJN] (explaining authority for adopting municipal policies); Minneapolis, Minn., Code, tit. 2, chs. 8, 11 (2023) (describing policymaking responsibilities of city council and enforcement responsibilities of mayor). ↑
278. By “public‑facing position” I mean any law enforcement role allowing the officer to interact with the public in a manner that could potentially endanger public safety, such as in a patrol, supervisory, correctional, or an investigative capacity. It would not involve the types of roles often colloquially referred to as “desk duty,” which may, for example, involve processing paperwork or answering phones or emails. ↑
279. See, e.g., Scottsdale Police Dep’t, General Order 1421, Officer Involved Shooting 7 (2023), https://‌‌‌public.powerdms.com‌‌‌/SCOTT‌‌‌/documents‌‌‌/914869 [https://‌‌‌perma.cc‌‌‌/HX5R-CSR6] (“In shootings involving death or serious injury, or deadly force incidents, officers who used their weapon are placed on Post Critical Incident Administrative Leave until their respective Assistant Chief authorizes their return to work.”); Carrboro Police Dep’t, Officer Involved Shootings, In‑Custody Deaths, and Serious Uses of Force 10, ch. 11, § VI(A) (2018), https://‌‌‌townofcarrboro.org‌‌‌/DocumentCenter‌‌‌/View‌‌‌/7901‌‌‌/110-OIS-Policy [https://‌‌‌perma.cc‌‌‌/BV59-N6Z2] (“In every instance in which an officer uses deadly force, where such use results in death or serious bodily injury to another person, the officer will be relieved of normal duty and placed on administrative leave with pay.”); Eagle Police Dep’t, Officer Involved Shooting Policy § 305.5.5 (2016), https://‌‌‌www.townofeagle.org‌‌‌/500‌‌‌/Officer-Involved-Shooting-Policy [https://‌‌‌perma.cc‌‌‌/25HX-5XD3] (requiring that every officer involved in a shooting be placed on paid administrative leave following the shooting). ↑
280. See supra note 11 and accompanying text. ↑
281. See supra Section II.D. ↑
282. Moran, supra note 17, at 868–69; Sharon R. Fairley, Survey Says?: U.S. Cities Double Down on Civilian Oversight of Police Despite Challenges and Controversy, Cardozo L. Rev. De Novo 1, 4–5 (2020), https://‌‌‌cardozolawreview.com‌‌‌/wp-content‌‌‌/uploads‌‌‌/2020‌‌‌/01‌‌‌/FAIRLEY.DN‌‌‌_.2019.pdf [https://‌‌‌perma.cc‌‌‌/NV5X-QXBY]. ↑
283. See, e.g., Complaints, Chi. Civilian Off. of Police Accountability, https://‌‌‌www.chicagocopa.org‌‌‌/complaints [https://‌‌‌perma.cc‌‌‌/DHX3-2N4X]. ↑
284. See Rau et al., supra note 191, at 1351–52. ↑
285. Id. at 1352. ↑
286. Id. at 1383. ↑
287. See sources cited supra note 279 (providing examples of policies requiring officers involved in shootings to be placed on paid administrative leave immediately after the incident). ↑
288. See DOJ, Minneapolis Investigation, supra note 17, at 75 (finding that more than 50 percent of misconduct complaints against Minneapolis police officers were still unresolved one year after being filed); Isaac Avilucea & Mike D’Onofrio, Philly Police Oversight Group Hasn’t Investigated Any Complaints Since It Started, Axios (Jan. 16, 2024), https://‌‌‌www.axios.com‌‌‌/local‌‌‌/philadelphia‌‌‌/2024‌‌‌/01‌‌‌/16‌‌‌/citizens-police-oversight-commission-philly-internal-affairs-cpoc [https://‌‌‌perma.cc‌‌‌/54AU-ENF8] (revealing that Philadelphia’s civilian oversight commission, responsible for investigating police misconduct complaints, has yet to investigate any complaints three years after it was created). ↑
289. See, e.g., Minn. Dep’t of Pub. Safety, Allegations of Misconduct Model Policy 1 (2021), https://‌‌‌cms4files1.revize.com‌‌‌/parkrapids‌‌‌/how‌‌‌_do‌‌‌_i‌‌‌_(faq)‌‌‌/Police‌‌‌/Policy%20Allegations-of-Misconduct-Model.pdf [https://‌‌‌perma.cc‌‌‌/2WUJ-2MEW] (“Sustained means a fair preponderance of the evidence obtained in the investigation established that the [law enforcement officer’s] actions constituted misconduct.”). ↑
290. See, e.g., Denver Police Dep’t, Discipline Handbook: Conduct Principles and Disciplinary Guidelines, at App. F (2019), https://‌‌‌www.denvergov.org‌‌‌/content‌‌‌/dam‌‌‌/denvergov‌‌‌/Portals‌‌‌/720‌‌‌/documents‌‌‌/discipline-handbook‌‌‌/handbook-final.pdf [https://‌‌‌perma.cc‌‌‌/Y5EN-AXKE]; San Diego Police Dep’t, Misconduct Related Discipline Matrix (2019), https://‌‌‌www.sandiego.gov‌‌‌/sites‌‌‌/default‌‌‌/files‌‌‌/misconductrelateddisciplinematrix.pdf [https://‌‌‌perma.cc‌‌‌/9455-LASM]. ↑
291. See supra Section II.D. ↑
292. DOJ, Minneapolis Investigation, supra note 17, at 75. ↑
293. Id. ↑
294. See supra Section II.D. ↑
295. Of course, if an investigation concludes that the officer did engage in misconduct, suspension without pay may then be an appropriate disciplinary measure. ↑
296. See sources cited supra note 279 (providing examples of police department policies dictating officers automatically be placed on paid administrative leave after critical incidents like shootings). ↑
297. See Rachel Moran & Jessica Hodge, Law Enforcement Perspectives on Public Access to Misconduct Records, 42 Cardozo L. Rev. 1237, 1258–59 (2021) (noting that in a survey of several hundred law enforcement administrators, multiple expressed concern that officers suffer reputational harm when people jump to conclusions about misconduct allegations before the investigations are concluded). ↑
298. Quispe‑Torreblanca & Stewart, supra note 168, at 797, 805 (explaining a study of approximately thirty‑five thousand police personnel concluded that officers prone to misconduct negatively impact their peers, and leaving “deviant” officers in their jobs without appropriate discipline significantly raises the overall rate of misconduct in the agency). ↑
299. Kate Levine expressed a similar concern in the context of disputes regarding whether police officer disciplinary records should be available to the public. See Kate Levine, Discipline and Policing, 68 Duke L.J. 839, 846 (2019). “There is also good reason to believe that if police know that disciplinary actions will become public, that knowledge would add perverse incentives to the already‑problematic internal disciplinary regime within many current departments. For example, senior officers may be less likely to report truly problematic behavior, and officers may be even more likely to close ranks behind fellow officers that are accused by citizens of misconduct.” Id. ↑
300. See Geoffrey King, Court Rules Vallejo Illegally Destroyed Evidence in Police Killings, Open Vallejo (June 27, 2023), https://‌‌‌openvallejo.org‌‌‌/2023‌‌‌/06‌‌‌/27‌‌‌/court-rules-vallejo-illegally-destroyed-evidence-in-police-killings [https://‌‌‌perma.cc‌‌‌/H2Z5-RBDB]; Richard A. Webster, A Sheriff in Louisiana Has Been Destroying Records of Deputies’ Alleged Misconduct for Years, ProPublica (Jan. 12, 2023, 2:30 PM), https://‌‌‌www.propublica.org‌‌‌/article‌‌‌/jefferson-parish-sheriff-misconduct-records-allegations-jpso [https://‌‌‌perma.cc‌‌‌/CS24-3J52]; Sukey Lewis et al., California Police Are Destroying Files and Charging High Fees to Release Misconduct Records, L.A. Times (June 30, 2019, 5:00 AM), https://‌‌‌www.latimes.com‌‌‌/local‌‌‌/lanow‌‌‌/la-me-police-records-california-20190630-story.html [https://‌‌‌perma.cc‌‌‌/S2ZZ-76KW]; C.J. Ciaramarella, New York Repealed Its Police Secrecy Law Two Years Ago. Departments Are Still Trying to Hide Misconduct Files, Reason (Dec. 5, 2022, 1:20 PM), https://‌‌‌reason.com‌‌‌/2022‌‌‌/12‌‌‌/05‌‌‌/new-york-repealed-its-police-secrecy-law-two-years-ago-departments-are-still-trying-to-hide-misconduct-files [https://‌‌‌perma.cc‌‌‌/6XWU-VYU4]. ↑
301. See Darwin BondGraham, Fremont Destroyed Decades of Police Misconduct Records Shortly Before Transparency Law Took Effect, KQED News (Mar. 18, 2019), https://‌‌‌www.kqed.org‌‌‌/news‌‌‌/11733744‌‌‌/fremont-destroyed-decades-of-police-misconduct-records-shortly-before-transparency-law-took-effect [https://‌‌‌perma.cc‌‌‌/MG4U-XMPY]. ↑
302. See Minn. Stat. § 13.43 subdiv. 2(a)(4)–(5) (2023); Andy Mannix, Minneapolis Illegally Withholding Hundreds of Police Misconduct Files, Says Lawsuit from Public Records Advocates, Minn. Star Trib. (June 3, 2021), https://‌‌‌www.startribune.com‌‌‌/minneapolis-illegally-withholding-hundreds-of-police-misconduct-files-says-lawsuit-from-public-recor‌‌‌/600064204 [https://‌‌‌perma.cc‌‌‌/6F5D-ZBYX]; Deena Winter, Court Filings: Minneapolis Uses Coaching to Discipline Officers for More than Minor Misconduct, Minn. Reformer (Aug. 9, 2023), https://‌‌‌minnesotareformer.com‌‌‌/2023‌‌‌/08‌‌‌/09‌‌‌/court-filings-minneapolis-uses-coaching-to-discipline-officers-for-more-than-minor-misconduct [https://‌‌‌perma.cc‌‌‌/NZQ4-P3VW]. ↑
303. See sources cited infra note 318. ↑
304. See Moran, supra note 17. ↑
305. See Conn. Gen. Stat. § 29‑38C(a) (2022); Fla. Stat. Ann. § 790.401(2)(a) (West 2018); Ind. Code § 35‑47‑14‑2 (2020); N.M Stat. Ann. § 40‑17‑2 (2020); 8 R.I. Gen. Laws § 8‑8.3‑3(a) (2023); Va. Code Ann. § 19.2‑152.13 (2020). ↑
306. Davis v. Gilchrist Cnty. Sheriff’s Off., 280 So. 3d 524, 528 (Fla. Dist. Ct. App. 2019). ↑
307. Id. at 528–29. ↑
308. Id. ↑
309. Id. at 529. ↑
310. Id. at 528–29. ↑
311. See, e.g., Emily Cochrane & Rick Rojas, The Questions That Remain a Year After Tyre Nichols’s Death, N.Y. Times (Jan. 7, 2024), https://‌‌‌www.nytimes.com‌‌‌/article‌‌‌/tyre-nichols-memphis-police-dead.html [https://‌‌‌perma.cc‌‌‌/FR84-E5WA] (describing how Memphis police officers used, among other weapons, stun guns and batons to beat and kill Tyre Nichols); Marybel Gonzalez, Chicago Police Officer Charged with Illegally Tasing Man Who Fell to the Ground, Breaking His Nose, CBS News (Oct. 27, 2022), https://‌‌‌www.cbsnews.com‌‌‌/chicago‌‌‌/news‌‌‌/chicago-police-officer-marco-simonetti-charged-taser-broken-nose [https://‌‌‌perma.cc‌‌‌/9ZJ8-Z5F2] (discussing an officer charged with illegally using his Taser after a man who the officer tased collapsed face-forward and broke his nose); Kerry Breen, Baton Rouge Police Officer Arrested in Deadly Crash, Allegedly Ran Red Light at 79 mph, CBS News (Nov. 1, 2023), https://‌‌‌www.cbsnews.com‌‌‌/news‌‌‌/baton-rouge-police-officer-arrested-in-deadly-crash-allegedly-ran-red-light-at-79-mph [https://‌‌‌perma.cc‌‌‌/SAM9-3XY4] (reporting on an officer who killed someone after allegedly speeding through a red light); Blume, supra note 103 (reporting a Minnesota state trooper’s extensive history of dangerous driving and charge of manslaughter after killing a teenager while speeding). ↑
312. See supra Section I.A (discussing the mechanics of existing red flag laws). ↑
313. If a person employed as a police officer also presented a threat of harm to civilians while off duty, and lived in a state that has a red flag law, then of course any person with standing could file a petition for a protection order under a standard red flag law. ↑
314. See Defendant’s Motions for Mitigated Departure and Sentencing Memorandum at 9, State v. Chauvin, No. 27‑CR‑20‑12646, 2021 WL 2621001 (June 25, 2021) (filed June 2, 2021), https://‌‌‌mncourts.gov‌‌‌/mncourtsgov‌‌‌/media‌‌‌/High-Profile-Cases‌‌‌/27-CR-20-12646‌‌‌/Memorandum06022021.pdf [https://‌‌‌perma.cc‌‌‌/Z3PV-XPYZ]. ↑
315. See Lartey & Van Sickle, supra note 2; Jamiles Lartey & Abbie Van Sickle, ‘Don’t Kill Me’: Others Tell of Abuse by Officer Who Knelt on George Floyd, N.Y. Times, https://‌‌‌www.nytimes.com‌‌‌/2021‌‌‌/02‌‌‌/02‌‌‌/us‌‌‌/derek-chauvin-george-floyd-past-cases.html [https://‌‌‌perma.cc‌‌‌/M52B-4VTU] (last updated Apr. 22, 2021). ↑
316. See id. at 706–08 (Sotomayor & Kagan, JJ., concurring) (noting that a law prohibiting people convicted of domestic abuse from possessing weapons was narrowly tailored to support a compelling governmental interest in keeping guns away from people with demonstrated histories of violence); cf. United States v. Rahimi, 602 U.S. 680, 700 (2024) (explaining “our Nation’s tradition of firearm regulation distinguishes citizens who have been found to pose a credible threat to the physical safety of others from those who have not”). ↑
317. See supra Part I. ↑
318. Much like any request for a protection order, there is an inherent risk in seeking the order: the person who the petitioner is naming as a threat may take umbrage and retaliate. In the context of filing complaints against police officers, many civil rights and civilian oversight organizations consider it best practice to permit anonymous complaints. For recommendations that cities accept anonymous complaints against officers to avoid the risk of retaliation, see Lonnie M. Schaible, Nat’l Ass’n for Civilian Oversight of L. Enf’t, Impediments and Challenges to Civilian Oversight of Law Enforcement, (2024), https://‌‌‌static1.squarespace.com‌‌‌/static‌‌‌/5b7ea2794cde7a79e7c00582‌‌‌/t‌‌‌/6737a55ed53770798e1fc3a9‌‌‌/1731700062669‌‌‌/NACOLE‌‌‌_REPORT‌‌‌_FINAL‌‌‌_Impediments‌‌‌_and‌‌‌_Challenges‌‌‌_20241010.pdf [https://‌‌‌perma.cc‌‌‌/6S4Q-9V5E]; Legal Def. Fund, Community Oversight of Police Union Contracts 4 (2020), https://‌‌‌www.naacpldf.org‌‌‌/wp-content‌‌‌/uploads‌‌‌/LDF‌‌‌_07242020‌‌‌_PoliceContractToolKit-12c.pdf [https://‌‌‌perma.cc‌‌‌/PA83-VYZR]; Leadership Conf. on Civ. & Hum. Rts., New Era of Public Safety: A Guide to Fair, Safe, and Effective Community Policing, at ch.7.1 (2019), https://‌‌‌civilrights.org‌‌‌/wp-content‌‌‌/uploads‌‌‌/Policing‌‌‌_Full‌‌‌_Report.pdf [https://‌‌‌perma.cc‌‌‌/F98Z-HTGS]. Jurisdictions may want to consider that in the context of red flag laws as well. ↑
319. See sources cited supra notes 43–44. ↑
320. See sources cited supra note 41. ↑
321. See sources cited supra notes 43–44. ↑
322. Cf. Schaible, supra note 318, at 4–8, 30–36 (describing law enforcement’s resistance to other forms of civilian oversight). ↑
323. See supra Part II. ↑
324. See supra Section I.C. ↑
325. Police Violence Map, supra note 15; Fatal Force, supra note 15; Levin, supra note 16. ↑
326. Cf., e.g., Dave Orrick, Three Years After Minneapolis City Council’s ‘Defund Police’ Moment, Voters Opt for More Nuanced Reform, Minn. Star Trib. (Nov. 12, 2023, 1:00 PM), https://‌‌‌www.startribune.com‌‌‌/minneapolis-city-council-election-2023-defund-police-moment-voters-opt-for-more-reform‌‌‌/600319046 [https://‌‌‌perma.cc‌‌‌/H375-7JEZ] (noting that, while voters in Minneapolis have expressed little support for “defunding” or abolishing police, they do show consistent support for more nuanced changes to policing); Erica Bryant, Polling Shows Voters Prefer Crime Prevention Over Punishment, Vera (Sept. 26. 2023), https://‌‌‌www.vera.org‌‌‌/news‌‌‌/polling-shows-voters-prefer-crime-prevention-over-punishment [https://‌‌‌perma.cc‌‌‌/WU34-JGUR] (describing polling results showing that voters support policing changes that will improve relationships between communities and police departments); see also David Slansky, Police Reform in Divided Times, 2 Am. J. Law & Inequality 3, 5 (2022) (arguing that, in a highly polarized American society, the proposals most likely to succeed in improving public safety and make policing “fairer, more effective, less abusive, and less lethal” are those that can bridge ideological divides). ↑