How Many Killings by Police?

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The two systems report very similar numbers in 2008 through 2011, but then the Vital Statistics death count opens a substantial lead with twenty-three percent more deaths in 2011 and twenty-nine percent more deaths in 2012.19 The current advantage of the Vital Statistics count may be a result of an effort to create a national violent death tracking system that currently has sixteen state systems enrolled. This wide of a swing in reporting is yet more evidence that there has been substantial undercounting in the estimation of killings by the police in the United States.

A.    Supplemental Homicide Reports to the FBI

The second national reporting system that classifies killings by the police as “justifiable homicide by police” is part of a larger registry of supplemental homicide reports created by local police departments (and sheriffs) at the request of the Uniform Crime Reporting Program (UCRP) of the Federal Bureau of Investigation in 1976.20 This program has been collecting information on violent killings for four decades. This “supplemental” program for homicides differs from other data on crime sent in to the FBI by police departments, because data on other crimes are reported only as statistical summaries (e.g., forty-eight armed robberies in the first quarter of 2015), which the FBI then cumulates into a national statistical aggregate. By contrast, each violent killing reported to the SHR by an agency becomes an individual event narrated in a brief summary with the month’s other killings in the supplemental reporting system.21 Just as killings by the police are only a small part of a larger death statistics system in the Vital Statistics program (several hundred killings in a total population of millions of deaths), the justifiable homicides by police are only one type of the violent killings reported in the Supplemental Homicide Program (several hundred cases a year in a population of several thousand violent deaths). But while “legal intervention” deaths are a tiny fraction of total deaths in the Vital Statistics, the 400 or so police killings each year are a much larger fraction of the homicides in the supplemental reports, and the weapons, causes of death, and victim demography of the police killings are much more similar to the other deaths in the FBI series than are the “legal intervention” deaths in Vital Statistics when compared to the patterns, causes, and populations of greatest risk for nonviolent deaths.

So the FBI’s program has some advantages over the Vital Statistics in that hundreds of police killings are less likely to go unnoticed. But there are also profound limits in the way in which killings by the police are documented and reported. One major problem is that participation in the reporting program is voluntary, and some police agencies do not participate.22 With a loophole that large, it is rather surprising that the FBI program consistently reported a greater fraction of killings by police than the Vital Statistics program found for legal interventions in the 1980s and 1990s. We know that many law enforcement agencies do not send in reports,23 but there is no precise estimate of what proportion of killings are from cities and county law enforcement agencies who do not participate in the program.

The second major problem with the FBI SHR is that there is no auditing of the accuracy of the descriptions of these killing events. While there is some auditing of the statistics on what are called “index crimes” sent to the FBI’s Uniform Crime Statistics Program, there is no quality control auditing of the supplemental homicide descriptions, which the local police departments provide. This is a particular problem because the reporting police department has direct interests in how such cases get classified, and even a pecuniary interest in the legality of a particular killing.24 So police reports have incentives to find every killing by an officer to be justified.

The voluntary nature of the reporting system means that significant numbers of killings by police do not get included in the official FBI numbers. The absence of auditing means that agencies with clear pecuniary interests in justifying cases are the only source of information available to the reporting system.

B.  Arrest-Related Deaths in the Bureau of Justice Statistics

There is a third program of data collection and reporting in the federal government that is concerned with killings by police. The BJS is an office in the Department of Justice that gathers and analyzes information on the operation of criminal justice agencies and actors. The Bureau was given responsibility to gather data about deaths that happened while citizens were involved in custodial relationships with criminal justice agencies by Congress in 2000 when the Death in Custody Reporting Act25 was passed. The BJS created three separate data gathering programs under the authority of the Act. The first was a survey of deaths by persons in prisons in the United States.26 The second was a survey of deaths in jails and similar holding facilities.27 The third program, started in 2003, was called the Arrest-Related Deaths (ARD) Program.28 The BJS data is gathered from accounts of deaths that law enforcement agencies provide, but each state has a state-level program coordinator to engineer compliance by the reporting state and local agencies.29

The ARD Program seeks information on all deaths that happen when law enforcement officers are interacting with citizens, including encounters that do not involve arrests or criminal investigation.30 The term “arrest-related” was used to create continuity with the jail and prison death programs where custody is a necessary element of the event. For deaths related to police and policing, there is no such restriction.

The “arrest-related deaths” reported in the BJS program include many deaths where a police officer does not injure the decedent and in that sense did not cause the death—suicides, natural causes, and accidents also count as “arrest-related deaths,” while both the “legal intervention” deaths in the Vital Statistics and the “justifiable homicides” in the FBI Supplemental Homicides are restricted to deaths caused by police use of force.31

Table 1 shows the distribution of the arrest-related deaths covering 2003–2009 by the categories of causes used in BJS reporting.

The six out of ten “arrest-related deaths” that are classified as homicides by the police are the comparable category to the justified homicides in the UCR, and the legal interventions in the Vital Statistics.

Figure 3 shows the numbers of reported homicides by law enforcement generated by the Arrest-Related Deaths (ARD) Program for the seven consecutive years 2003–2009.

Figure 3. Number of Reported Homicides by Law Enforcement, Arrest-Related Deaths Program: BJS,
2003–2009.33

• 7About the National Vital Statistics System, Ctrs. for Disease Control & Prevention, http://www.cdc.gov/nchs/nvss/about_nvss.htm (https://perma.cc/M6PP-FKZA).
• 8Id.
• 9Deaths Final Data for 2008, supra note 3, at 1.
• 10Colin Loftin et al., Underreporting of Justifiable Homicides Committed by Police Officers in the United States, 1976–1998, 93 Am. J. Pub. Health 1117, 1117–18 (2003).
• 11Id. at 1118.
• 12Id. (Legal intervention deaths were defined as “injuries inflicted by the police or other law enforcement agents, including military on duty, in the course of arresting or attempting to arrest law breakers, suppressing disturbances, maintaining order, and other legal action.”).
• 13Id. at 1120.
• 14See Deaths Final Data for 2008, supra note 3, at 36 (estimating that legal interventions accounted for only 381 out of 2.4 million deaths); Loftin et al., supra note 10, at 1120 (claiming that it is unknown why certifiers fail to mention police involvement).
• 15Loftin et al., supra note 10, at 1119.
• 16Id.
• 17Id. at 1120.
• 18Deaths Final Data for 2008, supra note 3, at 36; Kenneth D. Kochanek et al., Ctrs. for Disease Control & Prevention, Deaths Final Data for 2009, 60 Nat’l Vital Statistics Reports 1, 39 (2011) [hereinafter Deaths Final Data for 2009]; Sherry L. Murphy et al., Ctrs. for Disease Control & Prevention, Deaths Final Data for 2010, 61 Nat’l Vital Statistics Reports 1, 41 (2013) [hereinafter Deaths Final Data for 2010]; Kenneth D. Kochanek, Sherry L. Murphy & Jiaquan Xu, Ctrs. for Disease Control & Prevention, Deaths Final Data for 2011, 63 Nat’l Vital Statistics Reports 1, 42 (2015) [hereinafter Deaths Final Data for 2011]; Sherry L. Murphy et al., Ctrs. for Disease Control & Prevention, Deaths Final Data for 2012, 63 Nat’l Vital Statistics Reports 1, 41 (2015) [hereinafter Deaths Final Data for 2012]; Fed. Bureau of Investigation, 2008–2012 Expanded Homicide Data Table 14 (2012), https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2012/crime-in-the-u.s.-2012/offenses-known-to-law-enforcement/expanded-homicide/expanded_homicide_data_table_14_justifiable_homicide_by_weapon_law_enforcement_2008-2012.xls (https://perma.cc/L2BP-3MCX).
• 19Deaths Final Data for 2008, supra note 3, at 36; Deaths Final Data for 2009, supra note 18, at 39; Deaths Final Data for 2010, supra note 18, at 41; Deaths Final Data for 2011, supra note 18, at 42; Deaths Final Data for 2012, supra note 18, at 41; 2008–2012 Expanded Homicide Data Table 14, supra note 18.
• 202008–2012 Expanded Homicide Data Table 14, supra note 18 (Justifiable homicide is defined as “[t]he killing of a felon by a law enforcement officer in the line of duty.”).
• 21Loftin et al., supra note 10, at 1117.
• 22Id. at 1117–18.
• 23Id. at 1118.
• 24Whether the department or the municipal government might have to compensate the relatives of victims depends on whether the person was wrongfully killed.
• 25Death in Custody Reporting Act of 2000, Pub. L. No. 106-297, 114 Stat. 1045 (2000).
• 26Duren Banks et al., Bureau of Just. Statistics, Arrest-Related Deaths Program Assessment Technical Report 1, 3 (2015).
• 27Id.
• 28Id.
• 29Id.
• 30Arrest-Related Deaths Topic, supra note 6.
• 31Id.
• 32Andrea M. Burch, Bureau of Just. Statistics, Arrest-Related Deaths 2003–2009 - Statistical Tables 4 (2011).
• 33Id. at 4.
• 34Burch, supra note 32, at 4; 2003–2007 Expanded Homicide Data Table 13, supra note 5; Fed. Bureau of Investigation, 2007–2011 Expanded Homicide Data Table 14 (2011), https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2011/crime-in-the-u.s.-2011/tables/expanded-homicide-data-table-14 (https://perma.cc/2HT8-RFEH).
• 35Banks et al., supra note 26, at 13.
• 36Part III discusses that research project after Part II describes the “crowdsourcing” collection of data on killings by police.
• 37See Bureau of Just. Statistics, Arrest-Related Death Incident Report 2013, CJ-11A Question by Question Guide (2013).
• 38See About the Counted, supra note 1.
• 39See Franklin E. Zimring & Brittany Arsiniega, Trends in Killings of and by Police: A Preliminary Analysis, 13 Ohio St. J. Crim. L. 247, 257–58 (2015).
• 40Fatal Encounters, Facebook (Feb. 5, 2016, 12:00 AM), https://www.facebook.com/fatal
  encounters.US/ (https://perma.cc/P4JF-G2Z2]; U.S. Police Shootings Data (Responses), DeadSpin (Feb. 5, 2016, 12:10 AM), https://docs.google.com/spreadsheets/d/1cEGQ3eAFKpFBVq1k2mZIy5mBPxC6nBTJHzuSWtZQSVw/edit#gid=1144428085 (https://perma-archives.org/warc/QXR5-TC6W]; Killed By Police 2015, KilledByPolice.net (Feb. 5, 2016, 12:05 AM), http://killedbypolice.net/ (https://perma.cc/R3S9-BYUG).
• 41Banks et al., supra note 26, at 8, 13.
• 42Reuben Fischer-Baum & Al Johri, Another (Much Higher) Count of Homicides by Police, FiveThirtyEight (Aug. 25, 2014), http://fivethirtyeight.com/datalab/another-much-higher-count-of-police-homicides/ (https://perma.cc/KW58-8XVT). The FiveThirtyEight.com estimate is based on their seven percent deduction for accidental deaths and includes other arrest-related deaths. It is best compared with The Guardian total of killings.
• 43Id.
• 44Id.
• 45Compare id., with 2008–2012 Expanded Homicide Data Table 14, supra note 18, Deaths Final Data 2011, supra note 18, at 42, and Deaths Final Data 2012, supra note 18, at 41.
• 46How The Washington Post is Examining Police Shootings in the U.S., Wash. Post (June 30, 2015), https://www.washingtonpost.com/national/how-the-washington-post-is-examining-police-shootings-in-the-us/2015/06/29/f42c10b2-151b-11e5-9518-f9e0a8959f32_story.html (https://perma.cc/RP7X-ACJ9).
• 47See About the Counted, supra note 1.
• 48Investigation: People Shot and Killed by Police This Year, Wash. Post (Feb. 4, 2016, 12:00 AM), https://www.washingtonpost.com/graphics/national/police-shootings/ (https://perma.cc/WJ6W
  -JZVM] [hereinafter Washington Post Investigation).
• 49Deaths Final Data for 2012, supra note 18, at 41; 2008–2012 Expanded Homicide Data Table 14, supra note 18; Burch, supra note 32, at 4; Washington Post Investigation, supra note 48; The Counted: People Killed by Police in the United States in 2015, Guardian (Feb. 4, 2016, 12:10 AM), http://www.theguardian.com/us-news/ng-interactive/2015/jun/01/the-counted-police-killings-us-database (https://perma.cc/WU5F-2ZYE]; Reuben Fischer-Baum & Al Johri, Another (Much Higher) Count of Homicides by Police, supra note 42.
• 50See Banks et al., supra note 26.
• 51Bureau of Just. Statistics, Arrest-Related Deaths Topic, http://www.bjs.gov/index.cfm?ty=tp&tid=82 (http://perma.cc/8F6W-YXZN).
• 52Id.
• 53Banks et al., supra note 26, at 1–3.
• 54Id. at 12.
• 55Id. at 15.
• 56“Capture-recapture analysis relies on a number of assumptions, including the ability to match cases across lists, that the lists are limited to cases that meet the definition of law enforcement homicides, and that inclusion on what list is independent from inclusion on the other. Many of these assumptions were met, but the nature of the ARD program and SHR necessitated the violation of other assumptions (including independence across lists, as some ARD SRCs relied on the same reporting mechanisms as those that inform the SHR). RTI implemented a number of adjustments to account for these violations[.]” Memorandum from Duren Banks & Lance Couzens, RTI Intl. to Franklin Zimring (Dec. 27, 2015) (on file with author) (citing id. at 8–12).
• 57Id. at 1–2.
• 58Banks et al., supra note 26, at 13.
• 59Memorandum from Duren Banks & Lance Couzens to Franklin Zimring, supra note 56,
  at 2.
• 60Banks et al., supra note 26, at 13.
• 61Id. at 4.
• 62Id. at 25 (“Rhode Island, Vermont, Delaware, and Wyoming did not report any law enforcement homicides to either system in 2011.”).
• 63Tom McCarthy, US Government Database Hopes to Tell ‘Whole Story’ of Police Killings After Year of Guardian Count, Guardian (Dec. 13, 2015), http://www.theguardian.com/us-news/2015/dec/13/justice-department-database-police-killings-counted-statistics (https://perma.cc/7QFR-7FQF).