Investigation and Prosecution of Use of Force

1/12/2021

Use of Force Investigation database

*Data collected November 2020. Information on using the database.*

Investigation and Prosecution of Use of Force

At least 21 states and the District of Columbia have passed laws relating to the investigation or prosecution of use of force by law enforcement. Statutes addressing investigations and prosecution generally fall into two categories, 1) empowering an entity to conduct investigations and prosecute or 2) outlining procedurally how an investigation must be conducted.

An example of the first category, Delaware law requires the Division of Civil Rights and Public Trust to “investigate all use of deadly force incidents by law enforcement for the purpose of determining whether such use of force was justified as a matter of law.” Maine law simply states the attorney general has “exclusive responsibility for the direction and control of any criminal investigation of a law enforcement officer” who used deadly force.

Alternatively, Colorado law falls into the second category, requiring agencies to develop protocols for use of force investigations that are carried out by multi-agency teams. The protocols are required to be posted online or at least publicly accessible. Following the conclusion of an investigation that does not result in criminal prosecution, the law also requires the district attorney to publicly report findings, including the basis for the decision not to bring charges.

Many states empower the attorney general or another state attorney to investigate and prosecute crimes while some designate other government entities or utilize a grand jury process. A handful of states also empower review boards or require their participation in the investigation process.

For example, the District of Columbia’s law requires the Police Complaints Board to review all use of force incidents, serious physical injury incidents and any in-custody deaths. The law enforcement officer independent review board created by Hawaii law is tasked with reviewing investigations and making recommendations to the prosecuting attorney in the county in which the incident occurred.

Missouri, on the other hand, empowers cities and counties to establish their own civilian review boards with the authority to conduct investigations into allegation of misconduct by local law enforcement towards members of the public. All three states authorize or require civilian membership on each review board.

Most of the empowered agencies have subpoena power and the power to prosecute. Some states stop short of the power to prosecute but allow the empowered entity to discipline or make recommendations.

Law enforcement use-of-force investigation laws are not always criminal in nature, though many are. New York, for example addresses criminal consequences for inappropriate use of force by law enforcement. While Arizona statute creates procedural rules for administrative investigations. Iowa has a provision allowing for recommendation of revocation or suspension of an officer’s certification by the law enforcement academy council if the attorney general determines there is misconduct, but criminal charges are not appropriate.

The wide variety of statutory approaches to regulating the investigatory process after a use-of-force incident can be explored further in the database.

Using the Database

Learn more about investigation and prosecution in use-of-force cases in the 50-state statutory database by clicking on the image at the top of the page.

The database can be navigated by using state and subtopic filters. Text searching is available for statutory summaries or statutory language contained in the database. The map is also interactive and allows you to more quickly select multiple states to review―just hold down the control key to select more than one state. Use the reset button at the top left to clear all filters and start a new search.

Note that this database only contains statutory provisions that address each policy area. Case law, regulations or agency policy may further impact the current state of the law in each state. This database also does not address policies adopted by local jurisdictions or law enforcement agencies.

For questions, additions or suggestions, please contact amber.widgery@ncsl.org.

Additional Resources