by James Gagliano, FBI (retired)
Without trust and confidence in the criminal justice system, the rule of law will never be respected. The governed demand and deserve equal application of the law in a democracy. When the perceptions exist that justice is not evenly and impartially administered, violence ensues.
America is currently undergoing a reckoning. Sweeping protests have led to seven straight months of civil unrest and violence following the custodial death in Minneapolis of George Floyd, a 46-year-old black man. The police officer at the center of the storm, Derek Chauvin, knelt on Floyd’s neck for an interminably long 8 minutes and 46 seconds, while the prostrate man was handcuffed behind his back and pleading for relief, and has been charged with second-degree murder. The incident was the racial flashpoint that ignited America’s 2020 tinderbox.
Until Congress passes legislation requiring all law enforcement agencies to report use-of-force incidents, researchers are forced to measure with “best guess” compilations.
The combustible mixture of race and policing was unexpectedly provided additional propellant when less than three weeks after Floyd’s death, Atlanta police shot and killed Rayshard Brooks, a 27-year-old black man who fought cops attempting to apprehend him for driving under the influence, wrested away a police Taser, and fired it at pursuing officers. The altercation and resultant police-involved-death (PID) were captured on security cameras.
Further fueling gathering momentum of activism and violence was the videotaped officer-involved-shooting of Jacob Blake in August, when the 29-year-old black man confronted responding police in Kenosha, Wisconsin, refused to comply with commands, physically assaulted officers, and was impervious to the effects of a Taser. Kenosha police had been dispatched by a 911 call alleging Blake was trespassing in violation of restraining order.
Outrage over officer-involved-shooting (OIS) and police-involved-death (PID) incidents can be genuine and righteous, and also misguided. All police shootings and deaths caused by police are not the same. Yet bad-faith actors cynically lump them together, buttressing hashtag movements with incongruous events in an effort to cynically stoke division and advance a false narrative.
Yet the law enforcement profession may be its own worst enemy; stubbornly resistant to sharing critical data sets “outside of the family” and protectively “circling the wagons” on the infinitesimal few amongst us who tarnish the badge. These cretins do not deserve protection and the insularity that begets the stonewalling of police oversight efforts is no remedy.
Yes, The Job is dangerous, compensation abysmal, and the lack of support infuriating. However, dispelling tropes and countering false narratives cannot be accomplished with resistance to transparency and openness. Engagement, collaboration, and openness are no bromides, they are the true keys to a solution to the divide.
The profession must agree to more transparency and less resistance to oversight. Most critically, there must be an immediate effort to collect accurate use-of-force data sets.
This will be no easy feat. Take it from me. Back in 2011, New York Magazine featured my unusual efforts to tame unchecked street gang violence in upstate New York, within a long-form investigative essay entitled, “Welcome to Newburgh, Murder Capital of New York: Can FBI Agent James Gagliano Make Newburgh Safe.” Part of the methodology involved what the author, Patrick Radden Keefe, described as “an unusually compassionate law-enforcement strategy.” Keefe observed the community connections I had made as a volunteer basketball coach at the local Boys & Girls Club, steering young men most impacted by residing in an underserved community like Newburgh, and juxtaposed it with the federal crackdown on the gangs via R.I.C.O. prosecutions. He described it as “a tricky mix of blunt force and empathy.”
Then, between 2014 and 2016, a shocking spate of police assassinations in New York City, Dallas, and Baton Rouge got my attention. As I was retiring from a career in the FBI, I yearned to remain a part of the solution. The police-community divide in America’s urban areas and neighborhoods predominantly comprised of people of color appeared to be hopelessly widening. Encouraging, yet mild, successes have been achieved in places like Newburgh, leading to a tangible reduction in violent crime, somehow sustained across the past decade. But the recent devolution of protests into riots, chaos, anarchy, looting, and violence, has ushered in a spike in homicides in numerous U.S. cities. This surge in crime, current demonization of law enforcement, and national reckoning of our criminal justice system have squarely collided.
When I embarked upon a second career in academia in 2015, I never anticipated the convergence of my former law enforcement career, research interests, and the emergence of the oft-promised national conversation on race and policing. I earned an M.P.S. in Criminal Justice and Homeland Security Leadership from St. John’s University in 2017 and recently became a doctoral candidate. My dissertation is based on police use of force, with specific focus on an examination of OISs and PIDs at the New York City Police Department between 2000 and 2020.
But along the rocky route encountered in data collection, I ran into a frustrating dilemma: there simply does not exist a wholly reliable and verifiable database of police use-of-force incidents.
There simply does not exist a wholly reliable and verifiable database of police use-of-force incidents
In September of 2020, I sent a request to the NYPD’s First Deputy Commissioner Benjamin B. Tucker for departmental firearms discharge data. The request was reviewed by the NYPD’s Office of Management Analysis & Planning and ultimately denied. However, I was politely directed to the NYPD’s publicly-available Use of Force Reports (2016-2019) and Annual Firearms Discharge Reports (2007-2015). In addition, I was made aware of an interactive NYPD Force Dashboard that includes aggregate data related to police officers involved in use-of-force incidents which includes officer race, rank/title, gender, assignment, type of force, and injury sustained by subject. For subjects: race, age, gender, type of force used against NYPD member, and type of injury sustained by NYPD member are captured within these reports.
And while officer education-level, amount of experience, and age — desired variables in my multivariate study — were not included, at least I was in possession of functional departmental data from 2007 until 2020. Frustratingly, I was also forced to turn to the John Jay College of Criminal Justice library archives (with assistance from a professor at John Jay), in order to access data between 2000 and 2006. In 2008, the NYPD was compelled to make available to the New York City Council and an American Civil Liberties Union affiliate, the New York Civil Liberties Union, some eleven years’ worth of annual firearms-discharge reports, following a Freedom of Information Act request. This tranche of data includes the reports between 1997 and 2006 and are not available on the NYPD website that begins in 2007. The ACLU is certainly no neutral-arbiter in the police reform debate. Its website asserts that “Black people are over-policed, overrepresented in jails and prisons, and disproportionately subjected to police brutality.” Consistent with the current times, the ACLU is also committed to “reimagining policing.”
Yet, at least I now was in possession of working data sets for the two decades of NYPD firearms discharges that I was seeking. There also exists a few watchdog group aggregated data sites related to PIDs. Beginning in 2000, the website Fatal Encounters began compiling a database tracking “all deaths through police interaction,” and has recorded the race, gender, age, and mental illness indications of all subjects, as well as the incident location and agency the officer involved was assigned. The site acknowledges that its most complete data sets begin in 2013. Data collection is achieved by three methods: 1) scouring public records, 2) paid researchers, and 3) crowdsourced data. Unfortunately, until Congress passes legislation requiring all law enforcement agencies to report use-of-force incidents, the validity of data may be challenged. What researchers are forced to measure are “best guess” compilations. The Washington Post’s “Fatal Force” and the Guardian’s “The Counted” joined the effort to harvest and aggregate deadly force data in 2015, with interactive online portals to refine searches.
This helps in triangulation efforts, but again, there are limited years’ worth of this critical data.
The FBI formally announced its launch of a national use-of-force data collection effort in November of 2018 and on June 16, 2020, President Donald J. Trump signed an executive order that called for an establishment of a national database for police use-of-force incidents. Senate Republicans followed suit the next day by including the provision in their own police reform bill. Yet voluntary compliance has been difficult to achieve, with only 40 percent of police agencies participating in the FBI’s effort.
Some criminologists acknowledge that the 40 percent participation rate relates to smaller agencies that may have had no use-of-force incidents that qualify and simply fail to respond. But should we not also know which agencies have zero use-of-force incidents in their assigned territories? The FBI initially began compiling use-of-force data in 2015; but beginning on January 1, 2019, this data is being cross-checked via internet searches of use-of-force incident reporting, and made available (2019 and 2020) on the FBI’s Crime Data Explorer website. The accuracy and reliability of data sets continues to be rightly questioned.
The Police Executive Research Forum (PERF) is releasing a consequential report entitled, What Police Chiefs and Sheriffs Need to Know About Collecting and Analyzing Use-of-Force Data. The report seeks to provide guidance from available literature related to use-of-force research. It also provides best practices guidance to law enforcement agencies on how to collect, analyze, and apply use-of-force data. Of particular note, PERF focused on precursors to use-of-force incidents (officer, subject, situational and environmental factors) that may influence or not influence the application of force. This is a welcome addition to the debate and provides areas of discussion for agencies of all sizes and compositions intent on improving their department.
Researchers Cassandra Chaney and Ray V. Robertson have written extensively on police brutality and excessive use-of-force incidents. They astutely argue that without a standardized OIS database, statistical references may still represent under-estimates of use of force. Again, this speaks to much of the anger and resentment from citizens who question whether their government — and the armed instruments of the state — are giving it to them square.
Encouragingly, the connectivity information access afforded by modernity and computer search engines make it far easier to cross-check data than during earlier pre-internet era. Yet, the data sets continue to remain imperfect, subject to classification questions and charges of internal bias. Police agencies rightly fear misinterpretations of data by journalists and researchers, and bereft of context, having that data wielded as a cudgel against them.
The goals of social science research are to improve human relations or social conditions, and arguably, there exists no more immediate a means to reduce protester violence and restore trust in our institutions than by requiring law enforcement agencies — no matter how small the department or serene the environment — to accurately report use-of-force incidents in a timely fashion to the FBI. Will this be a panacea that cures all that ails the republic, a nostrum to curb all violent response to police shootings? Certainly not. But it is an obvious starting point in order to restore public trust and lower the temperature in our overheated nation.
Police defenders, like me, will be better served having complete and accurate information to refute reckless and false claims about police actions. Any analysis of use of force — well-intended though it may be — is pointless and nugatory, unless the data sets are reliable and verifiable. It appears we are moving in the right direction. But the reader, like me, must rightly be wondering what took us so long.
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James A. Gagliano is a 1987 graduate of the United States Military Academy and former U.S. Army Infantry Officer. He retired from the FBI in 2016, following a 25-year career in investigative, tactical, crisis management, and executive-level positions. He worked as an undercover agent, was a member of the FBI’s elite Hostage Rescue Team (HRT), led the FBI’s New York Office 45-man SWAT Team, deployed to Afghanistan several times as an FBI embed with Special Operations units during Operation Enduring Freedom, and studied Spanish at the Foreign Service Institute (FSI) in order to serve as acting Legal Attaché in México City.
He currently appears as a law enforcement analyst on CNN, serves on the Board of Directors for the Law Enforcement Legal Defense Fund (LELDF) and is pursuing his doctorate in Homeland Security Studies at St. John’s University in Queens, New York. He is married to his wife Tiffany, the Dean of the School of Business at Mount Saint Mary College in Newburgh, New York. They have five children between them and share custody of Jaxon, a sweet rescued Pit Bull puppy.
