German Policing

The national discussion on U.S. policing has me thinking about my semester seminar with Leipzig University, where we worked with German law students to do a comparative analysis on each country’s approach to certain policies and legal issues. I’ve also been to Germany a few times and seen firsthand how police operate and are regarded.

Like so much else in Germany, law enforcement is heavily shaped by the past. As in every authoritarian state, the police were a key instrument of Nazi oppression. Cops spied on and arrested political enemies, deported Jews, guarded ghettos, and helped kill more than a million people on the eastern front.

Ironically, some of the postwar reforms of German policing was also influenced by the Allies, including the United States. Since Germany is a federal constitutional republic much like our own, and relatively large and diverse, it offers a fairly good point of comparison. Here are some key points:

➡️ There is no German FBI. Law enforcement is handled at the state level but with similar national standards The closest equivalent—the delightfully named Office for the Protection of the Constitution—cannot make arrests, has limited surveillance powers, and all its actions can be challenged in court or by any German citizen. It is also banned from exchanging information with police except through a dedicated counterterrorism forum.

➡️ Before they even start, police applicants must pass personality and intelligence tests. Cops usually endure up to two and a half years of training, whereas U.S. training can vary wildly from 11 weeks to eight months (the latter being the average). In addition to weapons training, German police are required to visit a concentration camp; take classes in law, ethics, and police history; and learn techniques in deescalation and nonlethal force.

➡️ German police officers do not handle minor infractions like parking tickets nor respond to calls about noise and the like. Non-emergencies are handled by unarmed but uniformed city employees. (This was an idea of the Allies, who wanted to “demilitarize and civilize police matters”.)

➡️ Controversially, German police have what is known as a “monopoly of force”. Gun ownership in Germany is low—with about 5.5 million private firearms, mostly for hunting and sport—and shootings are thus rare. Fewer guns on the streets means officers feel less threatened and are less likely to pull out their weapons or respond with force. Moreover, violence is generally frowned upon in German society; the head of Berlin’s police forced noted that “even drawing a gun can lead to a police officer requesting psychological support.”

➡️ Regardless of the reasons, the use of weapons, let alone fatal police shootings, is rare in Germany. In 2011, German police fired only 85 bullets in total; in the U.S., 84 shots were fired at just one murder suspect in NYC. In 2018, German police fatally shot 11 people and injured 34; in the U.S., with a population four times Germany’s, over 100 times as many people (1,098) were killed by police. One state alone, Minnesota, saw 13 fatal shootings—two more than all Germany (with 88 million people versus Minnesota’s 5.6 million).

➡️ Of course, German law enforcement, like any human institution, is not perfect. Some have questioned whether the country’s approach is too passive, especially in the face of terrorism and political violence. There have been plenty of scandals concerning excessive violence, particularly towards immigrants; hence the country recently had the biggest protests regarding racism outside the U.S.

As one German police academy instructor advised, the most important lesson is that institutions like the police cannot change unless a society’s values change with it. “The police are a mirror of society. You cannot turn the police upside down and leave society as it is”.

The International Standards That Make Policing Better

Though most Americans dismiss if not deride international law, ironically the policing standards developed by the U.N., Council of Europe, and other international bodies affirm if not exceed our vaunted constitutional standards.

Many of the problems with American policing come down to the principle of reasonableness and the doctrine of qualified immunity, which the U.S. has adopted instead of the more common international standard of necessity and proportionality.

Reasonableness allows law enforcement officers to use lethal force when they believe it is “reasonable” to do so (based on their perception of the severity of the crime underway, the threat posed by the suspect, whether arrest is being resisted, etc.). Qualified immunity shields police from being sued except under the narrowest circumstances. In the already-rare chance that violence or death at the hands of police reaches court, the police officer’s assessment dominates, leading most often to “not guilty” verdicts.

The Supreme Court has nearly consistently given police a lot of leeway to use force; I recommend reading Sotomayor’s dissent in Mullenix v. Luna, where she argued that the Court is basically sanctioning a shoot first, think later” approach to policing. Having worked in both prosecution and defense, her perspective is uniquely more comprehensive than other justices.

However, under international law — which governs most other countries — the use of both lethal and “less-lethal” weapons (such as rubber bullets and tear gas) must be restricted to situations of necessity and in proportion to the associated risks. (Contrary to popular belief, rubber bullets and the like are not considered nonlethal; they are defined as “offering a substantially reduced risk of death when compared to conventional firearms”.) Foreign and international courts have found that the use of less-lethal weapons may amount to torture or ill-treatment if not “proportionate to the aim pursued, namely to disperse a non-peaceful gathering” and because the severity of the injuries are not consistent with “the strict use by the police officers of the force.” International law also lacks any equivalent to qualified immunity for police conduct.