Towards a ban on rubber bullets

Minneapolis, MN. CHANDAN KHANNA/AFP via Getty Images

While covering the protests in memory of George Floyd in Minneapolis, journalist Linda Tirado was hit by a rubber bullet. Despite donning goggles – an increasingly common practice to protect protesters from the use of tear gas and pepper spray, two other forms of LLWs – those slid from her face until something hit her. She told the New York Times, “I immediately felt blood and was screaming, I’m press! I’m press!”. Protesters carried her out, and she was operated on within the hour. The rubber bullet that hit her damaged the vision in her left eye beyond recovery. She testified before Congress shortly after, on the violence against journalists during protests. While less-lethal weapons (LLWs) are not prohibited under international human rights law, their use has long been debated and demands compliance with the principles of necessity and proportionality. As both are routinely violated, due to local and national interpretation of what constitutes both necessity and proportionality, in addition to the discretion granted to law enforcement officers in the pursuit of their duties, the United Nations’ Officer of the High Commissioner for Human Rights (OHCHR) released a guidance in 2020 that framed their use. This guidance has proven either ignored or too vague in a matter of months. The history of rubber bullets in crowd control is not new; from Northern Ireland to the United States, this aims at initiating a conversation that will hopefully lead to a ban on the use of rubber bullets as a dispersion method, arguing it could easily cross the threshold of cruel and indiscriminate treatment.

What’s a rubber bullet?

The rubber bullet is part of kinetic impact projectiles (KIPs) and can be made of rubber or plastic. Their role as less-lethal weapons – and not non-lethal weapons, as has been seen in various media outlets – is principally as a dispersion method during a riot or a violent assembly. The British Army developed wooden, plastic, polyvinyl chloride (PVC) then rubber bullets for use in Northern Ireland. They are solid and can be spherical or cylindrical projectiles of various sizes. Some are made of a composite that includes metal. They are to be differentiated from pellet rounds, which are closer to an actual bullet, as cartridges made from lead (or plastic, or rubber) pellet that spread when fired. Their goal is to cause physical harm, inflict pain and incapacitate an individual, without causing the degree of pain that would become a violation of the prohibition of torture. It is unclear where the threshold on the infliction of pain would lie if the projectile is fired from too close a range or is hitting a part of the body that is susceptible to be severely damaged. Firing into a crowd makes it impossible to reach those standards.

Washington, DC. Photo: REUTERS / Jonathan Ernst

UN guidance

The UN guidance aims at providing a comprehensive human rights understanding of the role of policing, in a balance between upholding law and order and minimizing risks to the human body. It acknowledges the necessity for law enforcement to be equipped with some sort of weaponry, but not necessarily use of lethal force, thus the category of less-lethal weapons”. The distinction to be made between the designated term and the colloquial mistake of referring to them as “non lethal” is a recognition that misuse could cause injury and death. The very preamble to the guidance, which is not targeted at individual officers or single police departments, but instead provides guidelines for states, traces the history of this equipment:

extrajudicial killings and acts of torture or other forms of cruel, inhuman, or degrading treatment or punishment—serious violations of international law —have been perpetrated using less-lethal weapons and certain forms of related equipment.

Recognizing the failures of the 1990 Basic Principles to abide by human rights law standards, especially in the training of police officers and in the risk assessment posed by those weapons, was at the origin of those guidelines. Minimizing risk should always take into consideration that refraining from using the weapon is at times the only way to avoid the risk altogether. Paragraph 2.3 states that

Any use of force by law enforcement officials shall comply with the principles of legality, precaution, necessity, proportionality, non-discrimination, and accountability.

As we can see through the use of qualified immunity in the United States but elsewhere, accountability is few and far-between and precaution is often discarded to the benefit of an assessment of necessity that is left to the discretion of the officer. In a tense climate in which protesters are presented as the enemy, a threat to the state, and triggering a politicization of conflict language, necessity seems to trump legality, proportionality, and much too frequently, the principle of non-discrimination, leading to the significant number of injuries that are reported. While the issue of accountability deserves its own article, it is worth noting that the United Nations Department of Peacekeeping Operations has prohibited the use of rubber bullets by UN personnel, precisely because of the risks of serious injury or even death due to improper use. The “circumstances of potentially unlawful use”, meaning the cases in which the use of the LLWs place individuals at risk of death or serious injury, which can constitute torture, are supposed to be avoided by acquiring weapons that have been tested to operate at their minimal capacity, and be subjected to thorough training in their use. Each police department operates on a different basis and it is extremely rare to see the use of human rights language and standards in law enforcement training, especially in states that seldom recognize the supranational nature of international legal standards.

Los Angeles, CA. .(Ringo H.W. Chiu/AP)

The guidance is firm in its belief that law enforcement has a legitimate purpose; one that encompasses the facilitation of peaceful assembly. Increasingly, states have empowered their police departments with counter-terrorism powers and military equipment through legislation that saw any assembly demanding political change as a potential insurgency, as opposed to the freedom of expression; has used those weapons against members of the press, in violation of the freedom of information; and against legal observers, in violation of the protection of human rights defenders. Assemblies, some of which have the potential to become a significant, historical civil rights movement have received the support of the High Commissioner, 66 Special Rapporteurs, and have been the subject of an urgent debate during the 43^rd session of the Human Rights Council. If the guidance is to be followed, its definition of undue risk – a level of identifiable risk that is unacceptable – can’t be compatible with the use of KIPs and especially not rubber bullets. The case of Northern Ireland is a direct example.

Northern Ireland

Francis Rowntree was an 11 year old student at St Finian’s Primary School in the Falls Road area of Belfast, when he was shot in the head with a rubber bullet on 20 April 1972. He was the first person to be killed by a rubber bullet during “The Troubles”; 16 more would follow, between 1972 and 1989. Eight of them were children. The young Rowntree died two days later of his injuries, which included skull fractures and lacerations of the brain. An inquiry into the killing was first launched in 2010, and the defendant, Soldier B., claimed he had no memory of having killed Francis Rowntree. The context was given that “a group of people were rioting and throwing stones at soldiers”, and it could not be established at the time whether Rowntree was in fact targeted or a victim of a richocheting bullet. After the inquiry took place and statements from the Coroner indicated excessive use of force, the family sued the Ministry of Defence – and Soldier B.’s statement sound much too familiar:

Virtually everybody you see were the target (…) The fact we are being pelted by just about every kind of missile, you are not really looking round to see if this person is innocent. I did not see a distinction.

Furthermore, statements from the Coroner, Brian Sherrard, include that there was no available training on the use of such weapons available to patrolling troops in the area:

The state provided Soldier B with a lethal weapon without notifying him of its potential lethality or training him in its use. (…) The absence of adequate training made it impossible for Soldier B to assess whether to use lethal force. (…) He fired without warning into the crowd, which was not aimed at any individual.

Francis Rowntree

The context of the use of LLWs in Northern Ireland matters. In a recent article written by Martin O’Flaherty, a parallel is drawn between the police force active in Northern Ireland at the time, the Royal Ulster Constabulary (RUC) and the militarized police departments active in the United States. While there is much to be learned about the non-negotiable demand to disband the RUC and build a new police force with inherent accountability mechanisms during the peace process, Northern Ireland was, at the time, under counter-insurgency and saw the deployment of armed troops, counter-terrorism unit, military intelligence, and covert counter-insurgency units, all of which were equipped with lethal weapons and granted powers that far exceed regular law enforcement. However, the use of rubber bullets here is still framed by international human rights law, and subjected to the same criteria of necessity and proportion; they were still fired in those cases as a means to disperse a crowd argued to engage in unlawful or threatening behavior.

And they still claimed lives.

While Northern Ireland painstakingly continues the difficult work to litigate unlawful killings from the conflict, the use of LLWs authorized by the British government by all its parties to the conflict on the ground – from the RUC to British armed forces – occurred with a vast array of injuries, if not deaths. The non-governmental organization Relatives for Justice, based in Derry and founded by families of victims, has long been an advocate to ban the use of rubber bullets as a display of excessive force. In a statement released in January 2007, responding to then Chief Constable Hugh Orde requesting the end of the use of rubber bullets for the purpose of public order or crowd control, the organization affirmed its position:

It is evident from the Chief Constable’s statement that the Plastic Bullet remains a lethal weapon in the armoury of the PSNI and the British Army. As a lethal weapon with devastating consequences plastic bullets, or any lethal replacement such as Tasers, are completely unacceptable and constitute a breach of international human rights standards. The most vulnerable in our society continue to be most at risk from these weapons – especially children. It is highly regrettable that the Chief Constable did not take this opportunity to completely end the use of the plastic bullet.

Based on painful existing experience, the former chief of the PSNI saw fit to end the use of plastic or rubber bullets, the risk of permanent injury or death when fired into a crowd – rendering it difficult to target a specific individual and to avoid certain parts of the body, as requested from the UN guidance – being too great. If there is no possibility for the use of force to be proportionate, it follows that it would be unlawful to use this weapon, especially when discharged against civilians, regardless of the lawfulness of the action in which they are engaged.

 

Opinion from P4HR

The US-based non-profit organization Physicians for Human Rights (P4HR) released a fact sheet on KIPs that would recommend a ban, due to blunt or penetrative trauma. While we’ve seen that the UN guidance recommends avoiding the head and torso, it is also nearly impossible to make that distinction in an order of dispersion and aiming at a crowd, especially if the police or armed forced are retreating due to action from the crowd. Aside from the injuries caused to the eyes and head, that have been documented, attention is drawn to musculoskeletal injuries, such as sprains, bruises, and fractures; KIPs can also cause “permanent damage to neurovascular structures”, leading to compartment syndrome. On skin and soft tissue, “superficial and deep lacerations may cause muscle and nerve damage as well as bleeding”. The numbers are staggering: research conducted by the organization over the past 25 years identifies 1925 individuals suffering injuries including 53 deaths and 294 permanent disabilities. 49% of those deaths resulted from direct strikes to the head, prohibited in the UN guidance, and 23% from blunt injury to the brain, spine, or chest, once again prohibited in IHRL recommendations but either not enforced due to lack of training or impossible to implement due to the situation in which they are use. 84% of injuries to the eyes resulted in permanent vision loss. In total, 70% of individuals struck by rubber bullets had severe injuries that required immediate medical assistance, that makes rubber bullets, for the sake of rhetoric, less lethal, but with a potential for morbidity and mortality that far exceeds what we expect law enforcement to be using against civilians in cases of unrest during peacetime.

Washington, DC. JOSE LUIS MAGANA/AFP VIA GETTY IMAGES)

Their 2016 report, Lethal in Disguise: The Health Consequences of Crowd-Control Weapons, released in conjunction with the International Network of Civil Liberties Organisations (INCLO), concluded unequivocally that KIPs are not incompatible with the human rights standards for crowd management and rubber-coated metal bullets specifically posed too much of a risk  to be allowed to be used. Even alternatives to rubber bullets and pellets – like “sponge rounds”, that have a much lesser degree of penetration into the skin – must be used extremely sparingly. The diversity in KIPs, such as “bean bag rounds” and pellets, are inherently meant to create an injury significant enough to incapacitate individuals, and not for a short amount of time. The dispersion and the fear that can be caused by the firing of those weapons can also create a stampede that would be extremely dangerous for injured people who can’t move, are bleeding, and need to be removed from the crowd in ordered to receive medical attention.

 

IHRL going forward

Enforcing protections and safeguards against the violation of the prohibition of torture is one of the biggest challenging in international human rights law. Reservations to the very definition of torture and the threshold of cruel treatment differs much too often from what should be a universal standard. If we are to have a conversation on the role of law enforcement in open, democratic societies upholding the rule of law, as is currently the case, we must engage in the complex and painful work of examining whether law enforcement is indeed a protection of civilians, in which officers are tasked with the right of safety and the right to security, or if they are an instrument of state power under increased human rights restrictions. The encroachment of counter-terrorism on legitimate law enforcement activities has dug deep trenches between a population seeking change and addressing their representatives the way they are entitled, and a police force armed to the teeth using weapons that have the potential to permanently maim and kill. The fear that this causes especially when used against individuals due to bias – another human rights violation against ethnic minorities, LGBTQIA individuals, and human rights defenders – demand a much broader conversation on legitimacy of policing. The UN guidance, because it isn’t legally binding, and is subjected to the definitions that states uphold of necessity, proportionality, and precaution, is not sufficient and has not addressed the danger those weapons could pose in a climate of intense tension.

De-escalation requires minimizing police equipment; redirect the funding toward social justice programs and not the acquisition of more weaponry; and focus on training, sensibility to human and civil rights, and replacing law enforcement where it belongs, which is protection, not attack. A ban on rubber bullets could be a considerable advancement at a time when confrontation with police leads to injuries and death, even when those encounters were not meant to be violent. If we want to address police violence, we must address what enables this violence: theoretically with policy, and practically with powers.

Dear Governor Cuomo

The Honorable Andrew M. Cuomo
Governor of New York State
NYS State Capitol Building
Albany, NY 12224
Monday, the 8 th of June 2020

Governor,

I am writing to you today in response to the proposed legislation you have announced over social media and in a televised briefing. As the bill will be presented to representatives this week, and on the heels of mass protests in the city of New York, I am taking this opportunity to highlight the human rights obligation pending upon the United States as a country. While federal authorities do not appear to support gubernatorial efforts for reform, I believe your efforts should be highlighted and perhaps used as an example nationwide, should they be inspired by police reform in the state of New York.

Photo: Lexie Moreland

While the United States has ratified a number of core human rights treaties, such as the
International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture (CAT), the US Congress at time of ratification issued a number of reservations, some of them deemed significant enough to undermine the purpose of treaty integration as a whole. I however welcome efforts that have been made by your office under your tenure concerning core criminal justice issues including: bail reform, reduction of the use of solitary confinement after litigation from the NYC branch of the ACLU, and community re-integration. This is why I believe that the “Say Their Name”
reform has considerable potential. My letter aims at encouraging the use of human rights law language in United States legislation. Much too often human rights arguments fail to find their audience in courtrooms and in legislation; it thus matters that citizens and residents alike are acquainted with international human rights norms, to end this long standing state of exceptionalism. Guidance exists at international level to support and ground the following efforts:
– Transparency (ending 50-A)
– Banning chokeholds
– Prohibit racially biased 911 calls
– Empowering the Attorney General to open independent investigations into police killings
In addition to the decision made by Mayor Bill deBlasio yesterday on defunding the New York City Police Department (NYPD), I believe those demands are answering many of those present during the eleven days of protests across the city and nationwide. It is also aligning with a recent letter published by Legal Aid NYC on access to records for legal representation during pre-arraignment detention. I would like to draw your attention to discrepancy between contemporary international human rights law norms and police practice, as well as the gaps between effective and efficient criminal justice and real, reliable and trustworthy accountability.

I – Use of less-lethal weapons (LLW) and the police
Following the protests in Hong Kong, France, Spain, and the United States, the Office of the High Commissioner in Geneva released a full guidance on the use of less-lethal weapons by law enforcement worldwide. The goal is to reiterate the importance of the criteria of necessity and proportionality. While international law recognizes the use of law enforcement weapons, international bodies have expressed pressing and increasing concerns with regards to the use of police as a deterrent to the peaceful and lawful exercise of the human right of assembly and expression. While we understand that the safety of all is paramount, righteous expression against injustice is a necessary and welcome indication of an informed and mobilized citizenry seeking to improve the well-being of their communities. It is unacceptable that such movements face the repression they have seen, not just in 2020, but in previous years since the beginning of the Civil Rights Movement. The deployment of police forces by Mayors should be curtailed by human rights norms, and this includes the diminution, if not disappearance, of less-lethal weapons.

I am sure you have read UN expert on extrajudicial execution, Agnes Callamard’s opinion piece in the Washington Post in which she explains that such weapons and agents can be abused if improperly used. I believe this requires further training on the part of police forces. A few elements emerge from the reading of the United Nations guidance that have been ignored by the NYPD, repeatedly, and without any form of accountability thus far:
The use of less lethal weapons as a deterrent: it is recommended that such use – like
water cannons and tear gas – be only used to disperse a crowd after assessing a risk. It is
crucial to maintain that even an illegal assembly still benefits from human rights
protection and dispersion does not have to include the use of less-lethal weapons. They
must not be used to deter civilians from exercising their rights, and all of them are
conditioned to the issuance of a warning, with a delay for participants to safely
disband without being attacked. Sadly we have witnessed too many instances of injuries
related to their use.
– Less-lethal weapons can’t be used at close range. It seems that the use of chemical
irritants has not been tested and assessed as recommended the guidance. The irritant must also contain the lowest possible percentage of irritant. Again, this is a civilian situation in a civilian area, and the use of LLWs can be indiscriminate and endanger bystanders if not used appropriately. Even weapons including the dispensation of electroshock must not be used for the purpose of inflicting pain or causing injury, which can amount to cruel and degrading treatment in an arrest or detention. The risk and the threat posed by a specific individual has to be a common rule.
– The use of rubber-coated metal bullets or metal pellets should be banned. While the UN
guidance does not expressly prohibit them, they do not fall under the “less lethal”
category. There are several instances of rubber bullets having killed or severely
maimed an individual, while the use of this specific type of ammunition as opposed to
traditional rounds was meant to avoid wrongful deaths. The power of dissuasion that is granted to law enforcement does not match with its presence as an intimidating force. UN experts have clearly expressed that ethnic minorities were “living in fear” in the United States. In New York State and elsewhere, the use of rubber bullets can be extremely damaging and cost civilians limbs and sometimes life. It should not be used, referring to the principle of precaution and relying on previous damaging precedent.
– Training on the use of batons and light devices: reports have indicated injuries on
protesters that were consistent with the use of blunt objects to the head. The
aforementioned UN guidance strictly prohibits the use of batons to the head, neck, and
abdomen, due to the risk of severe injuries. Communities have had to develop and
spread the use of “street medics” in order to tend to those injuries that should not even
occur. Even if batons are not spiked, they can cause significant damage that will be found to be disproportionate under human rights law, and can lead to concussion, damaged scalp, excessive bleeding, musculoskeletal injuries or organ damage.

At this juncture in several movements and mounting wrongful killings committed by NYPD officers, instructing the office of the Mayor of New York City to order a new training of NYPD officers as well as a new patrol guide – that also authorises the use of firearms for off duty personnel! – seems salient. The increased militarization of law enforcement across the United States following the tragic events of September 11, 2001 must be entirely distinguished from the regular maintenance of law and order by city forces during exercises of a human right.

Image: Vanity Fair

II – Independent, impartial and effective investigations into police killings
Of course, the United States is in no way legally bound to unratified international treaties or those with restricted territorial jurisdiction. They can however provide excellent templates for further integration of human rights norms. The European Convention on Human Rights (ECHR) is an excellent point of reference; its Article 2, referring to the right to life, also requires the right to an effective investigation. Following the police killing of Brazilian citizen Jean-Charles de Menezes in the United Kingdom, scholars were divided as to what the conclusion of the investigation provided. However,
Article 2 should be a stepping point for the idea you put forward about independent investigations:

Deprivation of life shall not be regarded as inflicted in contravention of this Article
when it results from the use of force which is no more than absolutely necessary a) in defence of any person from unlawful violence…

According to Dr. Ian Turner, a professor of law at the University of Lancaster who has written extensively into the tense and sometimes confrontational space between law enforcement and human rights law, interpreted this as follows:

Article 2(2) therefore prohibits intentional killings by the state unless the force used is strictly proportionate to a legitimate aim like preventing unlawful violence. The degree of force exercised must remain “absolutely necessary” even in times of war or public emergency as per Article 15(2) of the ECHR. Article 2 is not only interpreted as conferring a negative right upon an individual – that is, a right not to be arbitrarily killed by the state – it also possesses a positive sense. (…) This positive duty imposes a corresponding secondary obligation on the state: a procedural or investigative duty to examine how and why a person died, and if necessary, to hold those responsible to account, sometimes through criminal charges. (…) consider only two obligations imposed on the UK by Article 2: the positive duty to protect life as per Article 2(1) and the duty not to intentionally kill someone unless using force that was absolutely necessary and for a legitimate objective as per Article 2(2).

It is a welcome development that the Office of the Attorney General for the State of New York has launched a dedicated investigation into the conduct of the NYPD during those protests, and that your proposed legislation seeks to enhance its role in a follow up to your Executive Order No. 147 signed in June 2015, creating the Special Investigations and Prosecutions Unit (SIPU). If understood correctly, your new legislation will empower the Attorney General to launch independent investigations into police killings, which it appears the SIPU can already perform, also releasing biennal reports. I humbly suggest that, in addition to the powers already granted to the Attorney General, an independent and impartial body that is not related to state governance be tasked with investigating police killings as well as serious injuries, complementing the existing Commission for Human Rights present in the city and looking into hate crimes. Funded by the state, it would however not be bound by other concerns than that of transparency and accountability demanded by residents. It seems that the use of Grand Juries as opposed to SIPU or recommended by SIPU did not lead to the degree of accountability required by the residents of New York State.

The issue of professional discretion is one that has complicated court cases against or involving law enforcement worldwide. All officers are empowered with making a decision on the threat posed by an individual or a group, and much too often this threat is either inflated, or poorly assessed, leading to wrongful arrest and detention. Adding to this a political context in which the very fact of political action has been vilified, if not criminalized by the creation of new misdemeanor charges, and police departments may operate under the assumption that an otherwise lawful action may be deemed illegal, due to poor interpretation, gaps in guidance and lack of transparency. I would like to bring to your attention Mayor DeBlasio creating a new charge, to the level of a class B misdemeanor, for failure to comply under a curfew. This curfew has been widely discredited for specifically targeting protesters assembling at the end of a work or school day; at the time when it was possible for them to have a significant movement, a curfew empowered the NYPD to extend arrests and charges, creating an even more dangerous backlog.

In addition to this charge, that the Mayor has dropped under pressure, the decision issued by New York County Supreme Court Judge James Burke on June 4th is more than concerning. Denying an emergency writ filed by the Legal Aid Society on behalf of then 108 individuals in NYC, this suspension of habeas corpus can’t be understood as a “technical difficulty”. Mass arrests due to the use of kettling should not have occurred in the first place; I can only emphasize that methods of coercive police not be applied indiscriminately. At the time most press covered the decision, 131 were held, and hundreds more were arrested that same night after a protest in The Bronx. According
to Russell Novack, an attorney for the Legal Aid Society, “the police department has a history of deliberately delaying people’s arraignments because they don’t like what they’re doing on the street”. This is illustrative of a systemic issue that merits not just one investigation, but an overhaul of police practices in compliance with the ICCPR. The proposed legislation should empower an independent body – not to strain the resources of the Attorney General’s office – to investigate why individuals are detained for a summons. This is especially salient as the pandemic has not yet abated and continues, with calls issued worldwide to release prisoners in pre-trial detention or in low-level
offences in order to mitigate the spread of the virus in facilities were social distancing is not available. This could amount to deliberate exposure to the virus, meaning a violation of the right to safety, for which the state is liable.
Initially welcoming District Attorney Cy Vance’s decision not to prosecute for misdemeanor charges, it remains that the police department has continued arrests and kept individuals in custody despite the likelihood of arraignment seeing no valuable reason for bail or for trial. According to Tina Luongo, a chief attorney for criminal defense at the Legal Aid Society, “we’re still getting bail requested on people who are not a flight risk charged with misdemeanors and nonviolent felonies. The entire
nation is talking about not setting bail for these groups of people, but somehow (Vance) can’t inspire or motivate his staff to do it (…) (Vance does) not recognize that they are running almost two separate shops of prosecution – one for people with access and influence and one for poor people. ” In addition to that, there is a need – and a nationwide cry – for criminal prosecution of NYPD officers that have committed violent arrests against those same people held for days at precincts, issues and
crimes that will not see the light of a courtroom. There is a demand for a criminal justice system that underlines the judicial element of it. To restore trust in the courts, judges may not create states of exemption from constitutional rights and not operate under the assumption that the independent branch of government has a duty to cooperate. Following the ICCPR,

3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such remedies when granted.

US representative Justin Amash has introduced bipartisan legislation on that same day, June 4, to end qualified immunity for police officers. The Ending Qualified Immunity Act, if passed by Congress, would signal tremendous change following the lack of successful prosecution and sentencing of wrongful killings committed by police officers. I strongly suggest that this bill be supported in NYS legislature.

III – Defunding the police

Across the world, reliance on community policing, support for low-income communities, re-insertion of detainees, support for education programs, and other social justice efforts have led to a decrease in criminality. A population seeing its police force as a threat and a form of state oppression as opposed to protection means the police have lost legitimacy as its representation of the state. The disproportionate influence of police unions and the insistence on the part of the Mayor to support the NYPD despite mounting claims of illegal activity has contributed to sustained protests that must be heard politically and supported civically. From operating as patrolling to determining the individual is de facto an enemy to control, the history of law enforcement in the United States has
been raised several times by human rights bodies, including the Committee on the Enforcement of Racial Discrimination (CERD), which last heard the US delegation in the summer of 2014, during the last wave of Black Lives Matter protests.
In paragraph 17 of its concluding observations transmitted to the government of the United States in September 2014, the committee declared:

While recognizing the efforts made by the State party to intensify the enforcement ofrelevant laws, the Committee reiterates its previous concern at the brutality and excessive use of force by law enforcement officials against members of racial and ethnic minorities, including against unarmed individuals, which has a disparate impact on African Americans and undocumented migrants crossing the United States–Mexico border (para. 25). It also remains concerned that, despite the measures taken by the State party to prosecute law enforcement officials for criminal misconduct, impunity for abuses, in particular those committed by the Customs and Border Protection (CBP) against Hispanic/Latino Americans and undocumented migrants, remains a widespread problem (arts. 5 (b) and 6).

It then recommended the following:

The Committee urges the State party to:
(a) Ensure that each allegation of excessive use of force by law enforcement officials is promptly and effectively investigated; that the alleged perpetrators are prosecuted and, if convicted, punished with appropriate sanctions; that investigations are re-opened when new evidence becomes available; and that victims or their families are provided with adequate compensation;
(b) Intensify its efforts to prevent the excessive use of force by law enforcement officials by ensuring compliance with the 1990 Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, and ensure that the new CBP directive on the use of force is applied and enforced in practice;
(c) Improve the reporting of cases involving the excessive use of force and strengthen oversight of, and accountability for, inappropriate use of force;
(d) Provide, in its next periodic report, detailed information concerning investigations undertaken into allegations of excessive use of force by law enforcement officials, including the CBP, as well as their outcomes, including disciplinary or prosecutorial action taken against the perpetrator and remedies provided to victims or their families.

It is abundantly clear that those measures were not taken into account. An excellent piece written by legal scholar Yusra Suedi outlines ways through which the United States could be made to enforce those committee recommendations.  As the United States will be reviewed by the UNCERD once more in the two years to come, it is blatant that advancement must be made through a review of police training. A former policeman and visiting professor of sociology at Emmanuel College, Tom Nolan wrote about the militarization of police forces in the United States since 2001 as a departure from de-escalation, compromise, negotiation and conflict resolution:

Much of this was aided by the federal government, through the Defense Logistics Agency’s 1033 Program, which allows the transfer of military equipment to local law enforcement agencies, and the Homeland Security Grant Program, which gives police departments funding to buy military-grade weapons and vehicles. Critics of this process have suggested that the message sent to police through equipping them with military equipment is that they are in fact at war. This to me implies that there needs to be an “enemy.” In cities and, increasingly, suburban and rural areas, the enemy is often those “others” who are perceived to be criminally inclined.

Currently, the NYC budget for the NYPD stands at a staggering $6 billion, despite letters from the staffers of the Office of the Mayor to cut it by at least $1 billion. Mayor deBlasio has only yesterday accepted to diminish the police budget. The deadline for the 2021 looming, City Council cuts by $2 billion affected education, housing, parks, health and social services – all of which have a considerable part to play in making communities safer, more tied to each other, and allowing NYC residents to contribute to the best of their ability as well as being protected from eviction, lack of access to health care, especially in the wake of the way the Covid-19 pandemic has affected the city.
Meanwhile, New York City Schools Chancellor Richard Carranza stated that the “cuts are of a shocking magnitude”. The city coffers being depleted due to the pandemic by $111 million, the cuts affect professional development spending, hiring freezes, pre-k programs, fair student funding formula and other funding streams. Without federal assistance, the city will not be able to afford education at 2020 level, which was already dire given the needs of students and their dependence on the public school system for after school programs, civics, and lunches.
The presence of police officers in schools has also had a traumatic effect for young children who grow accustomed to seeing uniformed personnel in areas where they should feel safe to learn, live, grow and interact; the school-to-prison pipeline has reinforced this “us vs them” mentality that has pervaded the country and fuels resentment against law enforcement. It is not necessarily radical to demand better contribution for New Yorkers that do not involve violence or coercion, but rather a holistic, inclusive, safe and community-led approach to both budgeting and policing. Many teachers protested to have funding not just for special programs, but for their basic equipment as well, that many pay for out of pocket for lack of budgeting for education. It is inconceivable that a state would not invest in its youth and youth workers while complaining about the rise in violence, homelessness and unemployment, without seeing the link between the two issues. The NYPD is already outfitted
with a Counter-Terrorism Unit (CTU) present at protests or rallies, no matter how peaceful, an abuse of counter-terrorism powers that has been noticed as a worldwide trend as authoritarianism was on the rise. In total, the Department of Education (DoE) will face $264 million in budget cuts due to the pandemic – and $1.3 billion across the board, including public safety, transportation, sanitation, health and social services.

Those $1.3 billion and more that are necessary to keep the city running and New York City safe as well as ensuring that the state meets their constitutional, civil and human rights obligations to provide for its residents can be found in the proposed budget for the NYPD. The equipment necessary for a police force that seems to operate under constant wartime or under a perceived and completely manufactured state of insurgency is costly, and entirely unnecessary. The United States is not at war against its own people; the state of New York does not have to see its residents as insurgents. The right to protest is well-covered, and if the United States is one of a small handful of countries worldwide to have accessed less than ten human rights treaties, it does not mean that it should fall short of its obligations under those it has chosen to ratify.
I believe that the state of New York and New York City as a whole deserves more, and is entitled to claim it when the city and the state are failing New Yorkers. After six months of suffering under the coronavirus, of trying to sustain itself and survive in dire economic and social times, the city, long the biggest contributor to federal funds and a haven for fundamental American values, needs to lead the way into emphasizing, highlighting and using human rights language, normalizing it so it becomes a
tool for progressive, peaceful, structural and long-lasting change. All the tools are already at its disposal. All that is missing is the political will to do so.

As you prepare to introduce reformist legislation, I hope you can take these recommendations into account and further your involvement into human rights bodies that are, after all, based (in extraterritorial domain, but still) in your state; the best law clinics; committed activists, community leaders, and New Yorkers. We hope to see change and I believe we should continue pushing for it for the development of a nation that is leaving so many behind.

With gratitude and hope,