2Research into police use of excessive force in Germany

Outside Germany the topics of police use of force and police violence are the subject of a large body of research (cf. e.g. Alpert& Dunham, 2004; Alpert& MacDonald, 2001; Geller& Toch, 1996; Hine et al., 2018; Jobard, 2007; Klahm et al., 2011; Lersch& Mieczkowski, 2005; Paoline et al., 2021; Paoline& Terrill, 2011; Prenzler et al., 2013; Stoughton et al., 2020; Terrill, 2005). However, although the questions and problems in this area are similar around the world, the differing legal, social and institutional environments in which police act limit the extent to which empirical research into the USA and other countries can be applied to the situation in Germany. This chapter therefore aims to provide a summary of research into the area in Germany.

German Police Crime Statistics (PCS) recorded 2,084 criminal investigations into bodily harm in public office (§ 340StGB) in Germany in 2021 (Federal Criminal Police Office, 2022). While the statistics showed a decline in complaints of such offences up to 2019, the number of cases recorded has risen sharply since 2020 (cf. Figure 1). It should be noted that this offence covers cases of bodily harm by any holder of public office – such as teachers – and cases involving police are not analysed separately.

By contrast, statistics for public prosecutors have included a separate category since 2009 known as Section 53 which records the outcomes of investigations into police officers for unlawful use of force and abandonment. The statistics show that public prosecutors handled 2,790 criminal investigations of this type in 2021.9 Such cases have been rising since 2018.10 These statistics also show the unique pattern of outcomes of criminal investigations into police officers. It is unusual for the above-average rate of closed investigations and an extremely low rate of charging at only 2% (Abdul-Rahman, Espín Grau& Singelnstein, 2020a; cf. also Singelnstein, 2014). A detailed examination of the pattern of outcomes and analysis of the reasons behind it may be found in Chapter 8.5.

Figure1: Investigations into bodily harm in public office (PCS) and investigations of police officers for the unlawful use of force (Prosecution statistics)

Source: Federal Criminal Police Office (2022); Federal Statistical Office (Prosecution statistics Section 53); own illustration11

What the two sets of statistics have in common is that they only depict the “light figure” of cases where complaints were made or of which the criminal justice system became aware by other means. This means these statistics only document proceedings initiated by state institutions on the one hand and how the criminal justice system handles these cases on the other (Derin& Singelnstein, 2019; Kant, 2000; Singelnstein, 2014). Reviews of cases in the light figure have been carried out in Bavaria (Luff et al., 2018) and Saarland (Schlun, 2018). The research office of the Bavarian State Criminal Investigation Department was unable to identify any indications that the high rate of terminations was structural in origin. In his work on Saarland, however, Schlun showed that while it did not appear that the law had been broken, there was certainly evidence of problematic practices among public prosecutors. These practices included failures to investigate victims or suspects (cf. ibid. p. 106).

Incidents which are not reported to the authorities or which do not come to their attention by other means do not appear in official statistics and therefore remain in the “dark figure”. Until now there have only been occasional investigations in Germany into the dark figure and/or the actual incidence rates of the unlawful police use of force. On the one hand, only some of the work on police use of force explores the issue of excessive force. Much only looks at how police use force in a wider sense without attempting to conceptualise the question of how such force is evaluated. Furthermore, most studies take a wider view and set use of force alongside other forms of police action. Below we present the key findings from studies of police use of force (including excessive force where present) which are relevant to our research interests. What becomes particularly clear is that, until now, too little attention has been given to victims’ perspectives.

Maibach (1996) drew on qualitative interviews with police officers to identify signs of a deep-rooted culture of unlawful violence. This study mainly focused on individual factors. In these interviews, police officers describe the “practice shock” they experienced in the early stages of their careers. The term remains current today and refers to the tension between a police officer’s claim to hold a position of power and authority on the one hand, and the problem of asserting that position in practice on the other hand. The reasons given for reported assaults on the public included stress (at home or at work), group dynamics, fear of and anger with the individual they were dealing with, limited ability to communicate or a lack of empathy, and the fact that, as an organisation, the police is closed to outsiders (ibid. p. 191).

Wiendick et al. (2002) focused on police perspectives in a study which employed group and individual interviews and questionnaires to investigate the experiences of day-to-day policing at a Cologne police station. Their work also revealed difficulties on the part of police officers in terms of distinguishing between appropriate and inappropriate ways of dealing with the public. 28% of police officers surveyed said that they felt a colleague had gone too far in the past. Furthermore, 29% said they had to “consciously apply the brakes” when using force, and 62% of respondents had had their patience stretched to breaking point through contact with the public. Moreover, 23% said that they had at least once used the full extent of their discretionary powers without good reason (ibid. p. 37). The study also showed that situational factors were particularly relevant in terms of crossing the line between legitimate and illegitimate force (ibid., p. 38). However, the authors were unable to draw more detailed conclusions about the frequency or intensity of police misconduct due to a lack of data (ibid. p. 41). Dübbers (2015) repeated the 2011 survey and came to similar conclusions, while also noting a trend in policing culture towards a more community-focused approach.

These findings were also confirmed by von Behrendes (2003), who drew on his own professional experience as a police officer and a range of research to argue that assaults by police officers are usually caused by individual errors of judgment and officers becoming overwhelmed as situations escalate. It seems likely that most regular police officers and members of anti-riot units had used disproportionate levels of compulsion at least once while on operations (ibid. p. 174). Hence, von Behrendes argues, there exists within the police a certain tolerance for inappropriate behaviour of this kind by colleagues (ibid. p. 175).

A representative quantitative survey of police in Lower Saxony investigated the intentions behind assaults by police officers (Bosold, 2006). Bosold showed that these were a combination of individual attitudes to a situation in the form of how the assault was evaluated, a conviction that this was in line with norms, and the perception of behavioural control (ibid., p. 104 ff.). Police officers were also asked how often they had used force in the last 12 months, but the question on prevalence did not distinguish between lawful and unlawful force. 67% of officers said they had used force in the period in question, while 22% had used or threatened to use a firearm (ibid., p. 122). Older officers were less likely to report using force...