To Protect & Serve
What Is Wrong With The Policing of Minorities in The U.S?
By Professor John Kleinig (City University of New York & Charles Sturt University)
May 24, 2016 Picture: Scott Olson/Getty
This article is part of The Critique’s May/June Issue “Black Lives Matter (Part II): Understanding The New Movement For Racial Justice” (Forthcoming, July 2016)
INTRODUCTION
To protect and serve, as Jim Fyfe once pointed out, is a very broad characterization of the police role, and applies equally to condom manufacturers.[1] Even so, it alludes to two important facets of police work – its centrally protective role and its service orientation. But whom do police protect and serve? Equally overbroad is the answer: the community. Which community? For both good and ill, American society does not comprise a single community, but many, and though these communities overlap and intersect in many ways they are often separated, ranked, and at odds.
In theory, at least insofar as we are talking about public police, they serve and protect every resident of the jurisdiction or country (and visitors as well). They serve, inter alia, by protecting people from reckless and predatory behavior and the onset and effects of social disorder, and by responding to crises – that is, to give it its most general characterization, police serve by keeping or restoring the public peace.[2]
In practice, police, like members of every other public agency, fall short of the professional ideals that inform their occupation. There are always problems of poor training, inadequate resourcing, and incompetence, but as well there are those of negligence and recklessness, and sometimes willful disregard of the institutional, social, and moral norms that govern their role. Such problems, moreover, have both organizational and individual expressions. Given police powers, performance failures can be socially devastating. In addition, such failures are not randomly distributed. There are social and cultural forces – political and religious ideologies, economic factors, historical traditions and incidents, and even influential individuals – that unfairly skew them.
During the past two years – though by no means for the first time or even in a more acute way than previously – the distributive imbalance of police failure has been graphically brought to public attention. In 2014, #blacklivesmatter was the American Dialect Society’s word of the year – the hashtag signifying protest (especially) over the deaths of unarmed people of color at the hands of police.[3] What may have changed – or what at least contributed to the social outcry in 2014, stretching into 2015 and beyond – has been the increasing ubiquity of digital cameras, and their graphic ability to convey a story (seemingly) at variance with a police one.[4] As people of color have known or suspected all along, self-justifying police accounts of deadly encounters with citizens are now being called into question by videotaped accounts of their unfolding.[5]
[6] [Credit: Steve Sack, (Minneapolis) Star Tribune].
[7] [Credit: Robert Ariail, (South Carolina) The State].
Beginning with the much-publicized beating of Rodney King in 1990[8], police have found not only that their actions have increasingly been video-recorded, but also that they themselves have increasingly been required to record their own actions.[9] The all-too-frequent reporting disconnect – no doubt exploited and sensationalized by the competitive media – has ignited longstanding smoldering resentments within disempowered minority communities. Most acutely, these have been African-American communities. Unarmed black males have most often been the victims, but there have also been children, women, and Hispanics/Latinos.[10]
[Caption: “Michael Brown Sr, yells out as his son’s casket is lowered into the ground at St. Peter’s Cemetery in St. Louis, Missouri August 25, 2014. Family, politicians and activists gathered for the funeral on Monday following weeks of unrest with at times violent protests spawning headlines around the world focusing attention on racial issues in the United States”. Richard Perry/REUTERS].
Conservative defenders of police have criticized the media, “liberal elites,” and “thugs” for the social unrest that has accompanied some of these deaths; they have blamed poor parenting skills, pointed to the large amount of black-on-black crime [See Atkin on the logic of black-on-black crime complaint]; they have parsed videotapes and eschewed racial explanations, admitting only to the occasional bad apple.[11] At the other extreme, some have laid everything at the feet of a history of oppressive racism and a hegemonic white culture.[12]
I have no doubt that there is some truth in each of these positions, but they also encapsulate gross simplifications and function more as catchcries and slogans than as viable pathways to improvement. In this essay I attempt to identify some of the historical, social, cultural, legal, economic, ethical, and other dimensions of this complexity and, after doing so, will offer some suggestions for ways forward, including some suggestions about how we might more productively distinguish cases in which police shootings are justified, those in which “merely tragic accidents” occur, and those in which some responsibility ought to be borne (both legally and morally) by the apprehending officer (and others).[13] Making such discriminations is often difficult, and we sometimes seem to be caught in a downward spiral, like a disintegrating marriage, in which even good faith efforts to investigate are interpreted as further evidence of the hopelessness of the relationship. In police cases, however, divorce is neither realistic nor desirable.
I begin by noting the depth and complexity of the issues before turning to some possible ways forward.
CHAPTER I: THE LARGER BACKGROUND
The NAACP has calculated that between 1999 and 2014, 76 unarmed people of color were killed by police.[14] To that tally several other men and women can now be added: Eric Harris, Walter Scott, Freddie Gray, Sandra Bland, Sam DuBose, Laquan McDonald . . . . . The exact figures are not so important, for comparative tallies give a better sense of the problem. The issue is not simply one of raw numbers but of proportionality, and unarmed people of color are disproportionately represented.[15] Conservatives sometimes claim that this is because a disproportionate amount of crime occurs in neighborhoods with large minority populations, that the police presence in these areas is necessarily greater, and therefore that the likelihood of people of color being killed is greater. But such an argument underplays the fact that the people in question have been unarmed and, even if “tragic mistakes” have sometimes occurred, an important question concerns why those tragic mistakes have so often taken place where young black males have been involved. Is it skin color that heightens the sense of dangerousness?
One should of course look beyond the number of deaths – salient and countable though they are – and consider other encounters between citizens and police. We should not ignore, say, the frequency with which people of color have been stopped, questioned, and frisked and how often such stops have involved the use of physical force.[17] [See Rasmussen on racial profiling]. Take that in conjunction with the small number of those who – whether with reasonable cause or by happenstance – have actually been found to be on the wrong side of the law, and you have a clear picture of overpolicing.[18] There is little doubt that police, and particularly white police, generally treat people of color more roughly and disrespectfully than whites.[19]
Such factors have undoubtedly had social repercussions, not only in minority suspicion of and resistance to police, but have also contributed to a general outlook in which police are seen as a feared occupying force rather than being and functioning as a protective one.[20] That is even the case in communities in which black-on-black crime is the primary target. By themselves, large numbers of adversarial encounters with relatively low rates of arrest or conviction – the result of lazy profiling – leave a residue of resentment on the part of many who are being “protected,” and this then contributes to a spiral of resistance/force.
The title question focuses on police. That is not an inappropriate place to focus, for more than one reason. First, questionable police–citizen, and particularly police–minority, encounters, have been responsible for a great deal of the current social concern and unrest. And second, it is in police–citizen encounters that we experience most acutely the power of the state and, whether or not we see that power as fundamentally benign or malign, it represents an ongoing ethical challenge to people who value their freedom, agency, and bodily integrity.
“It is in police–citizen encounters that we experience most acutely the power of the state and, whether or not we see that power as fundamentally benign or malign, it represents an ongoing ethical challenge to people who value their freedom, agency, and bodily integrity”.
Nevertheless, it is important to remember that police participate in and reflect a much larger social order and that they are the inheritors as well as creators of the social order they seek to maintain. They are both its beneficiaries and – yes – even casualties.
At least in so-called liberal democratic countries such as the US, the social order is structured around a market economy, one in which (for only some) certain deleterious effects of the market are meliorated by governmental intervention. The socio-economic order represents a shifting compromise between what are often represented politically as fairly extreme positions – on the one hand, those who see the market as a self-rectifying mechanism for social distribution, and, on the other hand, those who believe that the market does not operate in that way and that a legitimate goal of government is to monitor and, to some extent, oversee the ways in which social goods are distributed. This is not the place to develop and critique these alternatives, but the tensions they engender provide a context in which people must live their lives and police must do their work.
An integral part of that context is a social order that – initially through slavery – brought about and is still characterized by large social inequalities. If we are to believe reports, some of those inequalities are growing, even as many, perhaps most, people are better off than they once were. Saliently, largely as a result of cumulative differential opportunities, approximately 15% of US residents fall below a poverty line that takes into account not only income but an associated range of goods such as food, healthcare, education, and shelter. Inequality is therefore not an inconsequential abstraction.[21] Among developed nations, the US does not rate as well as it should in various forms of well-being, despite its frequent claim to be the most advanced in the world.[22]
The relevance of this background is that the burdens of deprivation fall disproportionately on people of color, many of whom have never recovered or even been encouraged to recover from the subjugation and violations of two and a half centuries of slavery. The reasons for that are often associated with some form of ongoing racial prejudice – if not out-and-out racism then more subtle biases imbibed through familial and cultural associations [For more on this subject see Pittman on why race is such a big issue in the U.S].
A frequent conservative mantra – when it chooses to focus on social generalities – is that such differences as we now have them are the products of class rather than race[23], of choice rather than history, and that poor whites suffer along with poor blacks. However, it is not a matter of either/or. Whether we are talking about the old or new Jim Crow, race and class tend to reinforce each other, and though some may be appreciative of the fact that the US has at last managed to elect a black President, he hardly represents a disproof, if one chooses to peruse the online vitriol and political obstruction that his presidency has excited.[24]
“The burdens of deprivation fall disproportionately on people of color, many of whom have never recovered or even been encouraged to recover from the subjugation and violations of two and a half centuries of slavery”.
The separate-but-equal mythology that lasted for a century – formalized in 1896 by Plessy v. Ferguson and not formally overruled until 1954 by Brown v. Board of Education – perpetuated a two-tier system of social institutions, which reflected and reinforced a cultural belief in racial inferiority in general, even if not always in particular cases. It does not take too much research or experience to realize that many elements of that disdain and disparagement continue today, especially but not exclusively in the South. In some respects the effects are even more insidious.
Whereas it was at one time possible to point to formally sanctioned discriminations, now there is often a tendency – especially among conservatives – to ascribe continued failures to bad personal choices, whether of parenting or education – rather than lingering but coded and unspoken social prejudice.[25] The slow but genuine progress of some is now held in judgment against those who fall short.
I do not suggest that we should abandon the tradition of personal responsibility for a simplistic social determinism. But neither should we ignore the weight of history and differential opportunity and prejudice on people’s ability to develop and exercise responsibility in constructive ways.[26] There are myriad studies that show how discriminatory attitudes – whether individually, institutionally, or systemically mediated – have persisted in US society, even among those who see themselves as inclusive and fair-minded. They are found in the areas of education, housing, finance, legal adjudication, and employment, to name a few of the most salient.[27]
The foregoing provides an important background – though not the only one – to policing and to the problems confronted by minorities and diversities, particularly people of color. Several points are relevant to this background.
(A) Civilians in uniform. Police are drawn from the general community and, as with the rest of that community, they bring cultural baggage to their role. If many in the community, especially the white community, carry traces or more of racial (or other) prejudice, this is also likely to be represented in police recruits. Police are civilians in uniform, and if the civilian population is streaked with discriminatory attitudes, some of these are likely to be reflected in its police. It is possible that the more virulent expressions of prejudice can and will be weeded out at the recruitment stage, but it is unlikely that police will be free of prejudice or that the police culture into which they are initiated will remove the prejudices they have. Indeed, even in departments that often pride themselves on their racial sensitivity, coded language may tell a compromising story.
“Police are civilians in uniform, and if the civilian population is streaked with discriminatory attitudes, some of these are likely to be reflected in its police”.
A department’s culture may reinforce or shelter prejudice.[28] Police departments are still heavily macho in their style, and this may be attractive not only to some who harbor aggressive and prejudicial tendencies, but also serve to fortify them. Added to this is the observed overcompensation that males sometimes display when they feel that their masculinity is threatened – often aggravated in encounters with men of color.[29] The point is not to encourage indecisiveness or weakness – that is no less a failure in policing – but to stress the importance of exercises of authority that are epistemically well-grounded.
(B) Police enculturation. My second point, therefore, is that, although police often and rightly commit to maintaining “a higher standard of integrity than is generally expected of others because so much is expected” of them,[30] they are initiated into a culture that easily has the opposite effect. This is partly a function of at least three factors: (1) the power with which they are entrusted, (2) the closed and self-protective nature of the police community, and (3) the testing of their impartiality as a result of their everyday policing experiences. Although I will have more to say about some of these points, I briefly expand on them here.
(1) Power. Lord Acton’s well-worn adage that power tends to corrupt[31] is well-worn because it is so frequently instantiated as well as experimentally confirmed.[32] Even though police officials often deny that they encourage “aggressive” policing, they usually support “assertive” and “proactive” policing, and that often manifests itself in ways that brook no questions or dissent.[33] “Come on strong,” “Take charge of the situation,” and, if the situation is not able to be managed, “back off, not down” are well known training maxims for police engagement.
It is noteworthy that in one of the police responses to Freddie Gray’s death in Baltimore, MD, a police official reflected that more attention should be given to training police on when to avoid using force rather than on how to use it.[34] The latter has a tendency to sanction what may not be necessary. Why use a headlock, taser, or gun if an alternative is available?[35] What is so problematic about talking to a person courteously, even one you plan to arrest?
[Caption: “Logan Browning, with duct tape over her mouth, joins demonstrators protesting against police violence, including the July chokehold death of unarmed black man Eric Garner in New York, as they march near the area where LAPD shot an assault suspect on December 5, in Hollywood, California December 6, 2014. Police responding to an assault with a deadly weapon call shot the man near the popular Hollywood and Highland complex Friday night”. Patrick T. Fallon/REUTERS].
“Why use a headlock, taser, or gun if an alternative is available? What is so problematic about talking to a person courteously, even one you plan to arrest?”
The corruptive effect of power is commonly shown in what are sometimes termed “contempt of cop” arrests – arrests made when someone questions the use of police authority. Although there is no such offense – only a thin skin – such arrests are generally written up as disorderly conduct, obstruction of justice, and so forth. They are usually thrown out by courts, but the costs associated with them may still serve to “teach a lesson.”[36] Power may thus contribute to a culture of impunity that undermines accountability.
(2) Self-protection and self-justification. The closed and self-protective nature of the police community[37] is shown in a number of ways. Even though modern US policing is more open to “minorities” than it once was – that is, many police departments now contain a significant number of female, black, Jewish, Hispanic, and Asian officers – this is not universally the case. This was illustrated by the Ferguson Police Department, which employed four black officers out of a total of 54, in a community comprising a 67% minority population.[38] Ferguson is not the only police department that reflects a significant imbalance and, contingently with it, a culture of oppression and unaccountability.
The fact that the white population of Ferguson was generally supportive of their police (whereas the African-American population was largely dissatisfied with it) should have rung some bells. Moreover, once an imbalance of the kind found in Ferguson has established itself, it is not easy to rectify.[39] Minorities are not likely to be attracted to careers in an institution that is seen as oppressive toward them as well as alienating them from their own communities. As it is, even when recruited, minority officers have often had difficulty in advancing within their own departments.[40]
Although we can point to considerable improvements in most police departments so far as minority representation is concerned, it is still true that many US police departments do not come near to reflecting the communities they serve.[41] This of course is not a simple matter of proportionality, but of sensibility. Even when people of color become members of a police department, they soon learn that “blue comes before black,” and that their primary loyalty is to their departmental colleagues.
This was sadly illustrated in both the North Charleston, SC shooting of Walter Scott and the agonizing death of Freddie Gray in West Baltimore. It would appear from the videos that the black police officers involved were not the primary aggressors even if they subsequently neglected to do what they should have done [See Blum for an analysis of how police failed to do what they should have done, and how this moral failure indicates that “black lives don’t matter”]. To the extent that they had reason to, they did not “betray” or question their colleagues, despite the seriousness of the situation.
[42] [Credit: Thomas Hawk/Flickr].
There is a double irony in this. Even though black officers soon learn that blue comes before black, in many – perhaps most – departments they also learn that white comes before black. The history of integrated policing is also a history of discrimination within police departments.[43] Recruitment tests are often claimed to favor white applicants; promotion is usually more difficult for black officers; black officers are sanctioned more severely than white ones for breaches of regulations; and white officers often get breaks that are denied to black ones. In Baltimore, it was three white officers who first tackled and beat Freddie Gray. Subsequently it was the failure of three black officers to respond to his medical situation that led to one of them being charged with the most serious offense.[44]
[Credit: Thomas Hawk/Flickr].
“Even when people of color become members of a police department, they soon learn that “blue comes before black, (…) and white comes before black”.
(3) Reinforcement of prejudice. Just because uniformed police services are most commonly deployed to higher-crime neighborhoods, police will often be involved in encounters that have the potential to create prejudice or to reinforce or even heighten whatever prejudices they have. Because African Americans – especially – have often lacked the kinds of opportunities, encouragement, and support that is needed for social advancement, they are disproportionately present in higher-crime neighborhoods and more likely to attract police attention. Even that may involve some distortion: it may not always be that they are disproportionately involved in criminal activities but that their involvement is visible in a way that is hidden in white or middle-class communities. If we are to believe some of the empirical data, whites use drugs as often as blacks, but their use of drugs is less visible to authorities.[45]
(C) Cynicism. We should not forget that police have a difficult job. When things go socially wrong, we are inclined to call the police or at least count on their presence. Police are expected to do much of society’s dirty work, work that it is the larger society’s responsibility to do but which it delegates to those who go into policing. Although police work may be characterized in terms of making a difference or contributing to society or serving the cause of justice, it is often less glamorous than that and, over time, events may conspire to make police quite cynical – cynical about their institutional role and cynical about the wider society.[46] There are many ways in which that plays out. Police departments are often subject to political pressures that compromise whatever ideals they may formally espouse; police learn that there are at least two worlds “out there,” one of privilege and influence, and another that becomes the measure of their social effectiveness. Although we may legitimately call police to account for the ways in which they police the streets, too often they also bear social wounds and scars.
[Caption: “A NYPD policeman (R) reacts next to people protesting against the Staten Island death of Eric Garner during an arrest in July, at midtown Manhattan in New York December 3, 2014. A New York City grand jury decision not to charge white police officer Daniel Pantaleo who killed unarmed black man Garner with a chokehold sparked outrage and protests on Wednesday, and the U.S. Justice Department said it would investigate the incident”. Eric Thayer/REUTERS].
“Police work is often less than glamorous, and, over time, events may conspire to make police quite cynical – cynical about their institutional role and cynical about the wider society”.
(D) Macrocosm and microcosm. Significant changes in police work are less likely to occur in the absence of significant changes in the larger society. That may be thought of in macro-terms or in more limited ways. There is no doubt that the existing socio-economic order has a significant social effect – not only distributively but also in terms of what counts as crime, how many crimes people should be charged with[47], what resources are devoted to combating particular crimes, and how crimes are punished.
This is not the place to engage in an assessment of the economic and legal status quo, or in a discussion of whether any alternative would work better. It is enough to note that policing does not take place in isolation from larger social patternings, and that even if some harms are forbidden in every human society, how those and other harms are construed, how seriously they are to be taken, and the contexts in which they occur are likely to be significantly shaped by a particular society.
If the larger social order is permeated with corruption, we should not be surprised to find it in police work; if the larger social order reflects a history of social prejudice, we should not be surprised to find it in police work; if the larger society is “tough on crime,” we should not be surprised to find it in police work. That is not an argument for handwringing, or complacency about the status quo in policing, or a prediction of failure in the event that a police department should seek to institute reforms or improve its performance. I am not a social determinist. But the larger picture can make reformative efforts more difficult.
CHAPTER II: MOVING CLOSER
If we move now from a consideration of the larger social picture, and some of the ways in which it impacts on police work, to the specifics of that work, we can identify a number of factors that bear on the problems confronting policing and particularly those confronting the policing of minorities.
(A) Ignorance of the sources of police authority. Relatively few police officers give close consideration to the source of their authority – an authority to engage in conduct that is generally denied to those of us who lack police powers.[48] Their authority may permit them to deceive or trespass or invade privacy and, most critically, to use coercive – including deadly – force.
Certainly they have such powers by virtue of statute. More importantly, though – at least in liberal democratic societies – their authority originates with a public that they are pledged to serve. Their authority is a social relation in which they are publicly authorized to do the work they do: they police by consent. As part of a social division of labor, we permit or authorize police to act on our behalf, and legitimately expect their authority to be used to do what we would otherwise be morally entitled to do on our own behalf.[49] Most critically, they are there to secure our socially significant rights – their rights as well – and their authority is legitimate to the extent that their use of the powers granted to them is constrained by such purposes. To the extent that police powers are used disproportionately or invoked for other purposes, they are morally no better and sometimes worse than the criminals they investigate.
The consensual foundation for police work is often lost in the actual practice of policing. In many communities, relations between police and the people they serve have degenerated into one between “us” and “them.”[50] And so, even though police may see themselves as crime fighters or the thin blue line between civilization and the jungle, a great deal of their work is given to conserving a social order that has helped to marginalize a significant segment of its citizenry.
“To the extent that police powers are used disproportionately or invoked for other purposes, they are morally no better and sometimes worse than the criminals they investigate”.
(B) Ends and means. Associated with a division of social labor, in which we ask that police secure us against harms of various kinds, there often develops a dangerous pragmatism that focuses on ends detached from means. Getting the job done becomes more important than how it is done. To the extent that police are or may be in breach of some social norm that they are employed to uphold, the fact that their work is undergirded by a concern for the rights of all easily gets forgotten.[51]
Sometimes this reflects a further failure, namely, a failure to acknowledge that they are gatekeepers to the criminal justice system rather than its determinative agents. Too often there is a punitiveness about the way that police treat those whom they have reasonable or probable cause to apprehend. They forget (or have lost confidence in the fact) that we have a tiered system (police, prosecution, adjudication, sentencing, and corrections) precisely because we think it inappropriate for the rule of law to be determined and administered by those working at the “coalface.”
What John Locke saw as the failure of a state-of-nature – in which each is judge of his own cause and dispenser of punishment – resurfaces when police act as if the as-yet-unconvicted are guilty. No doubt some of this street pragmatism reflects cynicism about the workings of the criminal justice system. But so-called street justice is generally an inappropriate response.[52]
Police pragmatism, although often culturally internalized, frequently has a social impetus and reinforcement. To the extent that police fail to achieve “results,” especially in cases that are socially shocking, they are often pressured by media and interested groups into working more “effectively and efficiently,” even “aggressively.”
Police are held accountable – sometimes unreasonably so – for their inability to draw cases to an appropriate conclusion. What people often forget is that police must (in the sense of “ought to”) work within a framework of constitutional/moral requirements and laws that limit the means that they may use – reasonable searches and seizures, due process, interrogations that are constrained by Miranda rights, and so on.[53]
(C) Suspiciousness. The problematic pragmatism of police is frequently aggravated by an excess of another fundamentally valuable cultural characteristic – watchfulness. We want police to be on the lookout for us – preferably to head off trouble before it occurs. That is part of the fundamentally preventive or protective role of police. But contextualizing watchfulness often leads to an overreaching suspiciousness that results in excessive stops, frisks, and uses of force where there is no reasonable or probable cause, only a problematic racial profile or other inadequate source of suspicion.
Lt Brian Rice had no basis for thinking that Freddie Gray had a knife on him (whether or not it was legal and whether or not he had it for understandable reasons), apart from “eye contact.” For whatever reason – and quite probably a well-founded fear of the white police who patrolled his neighborhood – Freddie Gray chose to run.[54] And that turned what may have been a farfetched suspicion into a certitude that led – ultimately – to a brutal beating and death. “This would never have happened had he given himself up,” is a police rationalization that fails to convince in that part of Baltimore. It is police who write the reports about “non-compliance” and “resisting arrest.”
Freddie Gray’s situation also illustrates a connected excess – the adrenaline-fuelled overuse of force. It is a well-known phenomenon that, when police successfully conclude a high speed or foot pursuit, they are inclined to take it out on the person they apprehend. The adrenaline-heightened stress caused by the chase is released on the arrestee’s body before and sometimes after he has been handcuffed.[55] Although there are alternative ways for police to “decompress,” it is rare that departments invest in such training, preferring to turn a blind eye to the problem. Also, because the runaway has shown “disrespect” by failing to comply or fleeing, he is made to suffer the consequences.[56] What may have been a minor offense – or even no offense at all – is now permitted to “justify” a sometimes brutal but almost always excessive beating at the hands of police pursuers.
(D) Mutual support and the blue wall of silence. One major cultural reason why police are able to persist in abusive behavior is the almost universal unwillingness of police peers to hold each other accountable. A major source of that unwillingness can be found in the way in which police conceive of their work – in some respects not so different from the way in which soldiers in battle conceive of their work. Their task is characterized by uncertainty and a sense that they may at any time find themselves “under fire.”
That sense of vulnerability is meliorated by the unwavering and reliable support of others: your fellows “have your back.” If things go wrong and what turns out to be an unarmed man is killed or an innocent man is beaten, that is unfortunate – “tragic” – but not an occasion for recriminations (either by a society that fails to understand the dangers of the work or from fellow officers on whom one must rely and who know all too well how easily such things can happen).[57]
Collegial support gets translated into what is known as “the blue wall of silence” – a circling of the police wagons to secure police peers against attack.[58] The blue wall – basically, an understanding among police that they will never do anything to expose a fellow officer to penalty – is a complex phenomenon that is not peculiar to police, even though it finds one of its most problematic and pernicious expressions in police work. Any close-knit group that feels vulnerable to outside judgment or to an attack on its interests is likely to develop a roughly equivalent code of silence.
In some of its manifestations we are even likely to support it. Families, for example, often have an understanding that certain family matters should not be open to public scrutiny. Consider the illness or criminal record of a family member or a family’s financial situation. It is not difficult to think of circumstances in which, were this information to be made accessible to others, it would or could expose it or its members to unwarranted harm. So family members agree or understand that certain information remains in the family and is not for others to know about.
At the other end of the spectrum of silence, one might suggest the rule of omertà observed among members of the Mafia – a rule that includes the belief that if anything goes wrong, the authorities, including police, are not to be told or confided in. If one considers the Mafia to be a criminal organization, then omertà constitutes some sort of cover-up: grievances are to be handled internally, never with the assistance of public authorities.[59]
Even where a wall of silence might have an acceptable rationale, it can still manifest itself in unacceptable ways. If parents have good reason to believe that their child has been involved in serious criminality (say, a rape-murder), their unwillingness to co-operate with investigating authorities is morally problematic. Or if a child is sexually abused by her father, he cannot reasonably expect that she will keep it as “their secret.”
It is understandable that police will want to safeguard their solidarity and conserve the bond that secures their mutual interdependence. And it is not to be expected – notwithstanding internal regulations to the contrary – that they should report every failure by a fellow officer. Where group cohesion is important, some things should be handled differently (though not by practically ignoring them). But there is fairly obviously a limit to this, and the absolutist view that officers should “never co-operate” in the investigation of another officer or report another officer is extreme.
Unfortunately, officers who believe that there are limits to silence risk being considered untrustworthy and, if they break their silence, are likely to be regarded as snitches or traitors and suffer ostracism.[60] This may well have led to the collusion of the black officer (Clarence Habersham) who arrived soon after Michael Slager’s shooting of Walter Scott in North Charleston. He appears to have “gone along” with Slager’s attempted cover-up. It was undoubtedly the case in Ray Tensing’s shooting of Sam DuBose, though that case did not involve the additional complication of minority backup.
However, as currently conceived by police officers, the blue wall is deeply flawed, for at least three reasons:
(a) Condonation. One critical issue concerns the failure of police to police themselves. If certain matters are best “kept in the family” (whether conceived of as police peers or the organization), then the “family” should at least deal with them rather than ignore them or by sweeping them under the rug. Were I to catch my daughter shoplifting, I might decide not to report her to the management that warns that it will “prosecute shoplifters to the full extent of the law.” Instead I may choose to deal with it at home, punishing her appropriately and indicating why such behavior is intolerable. What I may not do is turn a blind eye to or treat it as a trivial wrong.
The blue wall of silence has evolved to rule out any significant judgment or second guessing of fellow officers. Even officers who disapprove of other officers’ behavior will generally turn a blind eye or prevaricate in a way that does not implicate those other officers. At best, it will be a matter of “there but for the grace of God go I.” So, whatever the merits of some kinds of silence, complete silence is not justified.
When John Timoney became the Philadelphia police commissioner, he acknowledged that his officers would not (always) report the wrongdoing of fellow officers. But he made it clear that a condition of not reporting was engaging in some form of intervention – say, to stop a fellow officer from hitting a handcuffed arrestee. If found out, failing to intervene would not be excusable.[61] So, if police wish to justify their silence, they are obligated to act appropriately when other officers step out of line. Ignoring it will not do.
(b) Relevance of gravity. A second consideration concerns the seriousness of the offense. Handling matters internally is acceptable only in certain cases. In police work – where power over life and death may be involved – cases of misconduct will often need to be handled at a societal level. Just as it would be improper for parents simply to ground their son for a year, should they have good reason to believe that he was involved in a rape-murder, so it is inappropriate for police to remain silent or handle internally cases in which significant criminality (harm to others) is involved. In such cases, publicly sanctioned norms have been violated, and it is generally not enough for police to deal with them “in house.” Police may be citizens in uniform, but they are still citizens and subject to governing social norms.
This is similar to the situation that the Roman Catholic Church (among other religious organizations) has handled rather badly. When priests have been found to have sexually abused minors, the Church has frequently chosen to handle such situations internally, and this has legitimately led to a public outcry. In some cases, the Church has been too lenient with malefactors or has simply sought to cover up what it has had good reason to believe. In many cases, though, the behavior has warranted a public response – reporting serial abuse to the police and assisting investigations by public authorities.
The Church has sometimes claimed that its commitment to repentance and forgiveness have pre-empted such public referrals. But belief in the importance of repentance and forgiveness does not pre-empt or exclude public judgment. Police departments have sometimes indulged in somewhat similar behavior – imposing token penalties or quietly retiring officers whose actions, if made public, would bring the department into disrepute.[62]
(c) Subservience to a social role. A final consideration, one that undergirds the previous one, is that policing institutions are purposive social constructs, created to serve certain public functions, and when officers act in ways that subvert those purposes, the public has a right to know and respond appropriately. Unlike a family, which might be viewed as a naturally evolved social institution with special privileges, police organizations are circumscribed by a clear public mandate, and the conduct of police as they perform their role is rightly subject to public scrutiny.
Even if professionalism in policing gives the police some special competence with regard to strategizing their role, those strategies – the means they adopt to further their ends – are bounded by the larger values that a community seeks to instantiate through their work. This includes a commitment to secure the rights of those they serve. Where rights are violated in serving public ends, the ends themselves are undermined, since they are premised on certain undergirding social values.
Police will sometimes argue that their effectiveness depends on their social cohesion, and that this is likely to be jeopardized if they are required to second guess and report their fellows. But this argument will take one only so far – perhaps to dealing with certain matters internally, but not to anything as absolute as the blue wall has often shown itself to be.
(E) Powerful unions. Reinforcing the blue wall of silence – and often advocating it – have been police unions. Almost always when police officers have appeared to overstep ethical and legal boundaries, their union leaders have outspokenly defended the integrity of the officers involved and the propriety of their actions. If prosecutors or public officials have sometimes jumped the gun with negative judgments about what officers have done, heads of the relevant police unions have been equally forthright about how the officers will be shown to have acted appropriately.
I am no critic of police unions as such. Unions represent an important collective defense against certain exercises of either administrative or external social power and, given a history of arbitrary or vindictive uses of power by police administrators or public officials, police unions serve a valuable purpose. But power is power, whoever has it, whether police administrators or politicians, and just as they have abused their power, so have the leaderships of police unions, and oftentimes – when attempts are made to hold officers accountable for alleged misconduct – they have used their power to defend the indefensible. They have done this not only – or even mainly – through public statements intended to belittle those who would criticize officers, but especially through access to well-paid lawyers who specialize in defending police officers against prosecution.
Although one might argue that the very small number of police officers who have been convicted of criminal offenses is evidence that police are too easily judged by an unsympathetic media and public, it is as likely true that police are beneficiaries of the extremely talented lawyers and “experts” who are retained by police unions (and departments).[63]
This was recently well-illustrated by the case of Officer Darren Wilson, who shot Michael Brown in Ferguson, MO. When Wilson was met by his supervising sergeant before he drove back to the station house after the shooting, he gave the sergeant an account of the events that explicitly disclaimed knowledge of the earlier cigarillos larceny.[64]
But he was met at the station house by a union attorney, and by the time he was interviewed a few hours later by a county detective, he already had in place a story that incorporated the store confrontation and rationalized his initial encounter with Dorian Johnson and Michael Brown.[65] What Dorian Johnson reports Wilson as saying: “Get the fuck on the sidewalk” becomes, when reported to the detective, “Why don’t you guys walk on the sidewalk?”[66] And what may well have been a later muttered “Fuck off” by Brown – the kind of disrespect that has Wilson backing up quickly and confronting them – becomes a response to his “realizing” that they might have been involved in the store confrontation and his desire to contain the situation until backup arrives.[67]
By the time Wilson appeared before the grand jury, he was fully prepped with an account of the encounter that had all the t’s crossed and the i’s dotted. It was importantly different from his initial account and, given other factors that impacted on that inquiry (see below), his testimony was only lightly scrutinized. Had the grand jurors been encouraged to be a more probing of Wilson’s testimony, his account of the calculations he went through in determining the use of force would have looked coached and far more problematic.[68]
Sometimes the recourse to union assistance may go wrong. When Officer Peter Liang accidentally shot Akai Gurley, an unarmed black male, in the darkened stairwell of a notorious East New York housing project, one of his strategic mistakes was to call his union representative before investigating the situation and calling for medical assistance. Although the shooting was almost certainly accidental, the officer was probably not justified in having his gun unholstered with his finger on the trigger or even on the trigger guard.[69] Nevertheless, his self-justificatory actions only aggravated his failure.
[Caption: “A man holding a copy of today’s newspaper at the support rally for Akai Gurley the day after Peter Liang’s verdict”. Herman Lumanog/Getty].
Generally, union-retained attorneys are highly skilled in knowing what will play best in court. That is frequently shown in controversies about who should conduct a grand jury investigation (local prosecutor v. special or other prosecutor), where a trial will be held (locally or at another venue), and whether there should be a bench or jury trial.[70]
(F) Prosecutorial bias. When something appears to go badly wrong in a police–citizen encounter, a prosecutor or state’s attorney or grand jury may need to make a decision as to whether there is sufficient evidence (probable cause) to send an officer to trial.
Prosecutors have considerable discretion about how they will proceed, and in the US the misuse of prosecutorial discretion is an old and persistent problem.[71] Prosecutors, like the rest of us, may be moved by considerations of fame, ambition, partisanship, and prejudice. Some are more competent and diligent than others. Just as important, prosecutors and police spend a considerable part of their time working together to make cases. And so there is something inherently conflictual about a local prosecutor making a determination about whether or not to charge a local police officer with a criminal offense.
That was a frequently heard complaint in relation to Eric Garner’s death, where the jurisdiction of the local prosecutor was also one in which many police officers lived. The situation was even more problematic in the case of Robert McCulloch, the prosecutor in the Ferguson case. McCulloch’s father was a police officer killed in the line of duty; several other relatives – brother, nephew and cousin – were police officers; and his mother had clerked with the police department for twenty years.
The fact that the Ferguson grand jury proceedings were made public – no doubt as a sop to public concern about bias – did little to allay suspicions that it was skewed in Officer Wilson’s favor. Wilson’s carefully crafted testimony – somewhat unusual in grand jury hearings, which are normally ex parte[72] – was not given the scrutiny that, given the circumstances, it warranted. Needless to say, the local police union did not complain.
[Caption: “A protester holds up a banner with the image of Ferguson police officer Darren Wilson at a demonstration against police violence and the grand jury decision in the Eric Garner case, after crossing a police barricade in front of the Thomas F. Eagleton U.S. Courthouse in St. Louis, Missouri December 3, 2014. A New York City grand jury decision not to charge a white police officer who killed Garner, an unarmed black man, with a chokehold sparked outrage and protests on Wednesday, and the U.S. Justice Department said it would investigate the incident”. Jim Young/REUTERS].
In the Baltimore case, the irony was different. The state’s attorney for Baltimore City, herself African American, also had deep family ties to the police – her parents, grandfather, two aunts and three uncles had policing backgrounds. Many thought she would not take action against the officers present when Freddie Gray lost his life. But she did, and as soon as she did there were howls (especially from the police union) that her decision was premature and political and that she was deeply compromised by conflicts of interest – her husband’s local involvements, etc.[73] No mention was made of course of the apparent conflict of interest constituted by her police ties. The idea that she might have risen above the conflictual ties of family would not have been politic!
[Caption: “Baltimore state attorney Marilyn Mosby speaks on recent violence and says there is “probable cause to file criminal charges in the Freddie Gray case” of officers involved in the arrest of the black man who later died of injuries he sustained while in custody in Baltimore, Maryland May 1, 2015″. Adrees Latif/REUTERS].
In any case, there is something deeply troubling about a situation in which those called upon to determine whether police should be charged with misconduct are closely involved with and dependent on them on a daily basis.[74]
As will become clear, I do not wish to underplay the delicacy of the role that prosecutors and their kin have. The law itself gives police extra leeway in their discretionary use of force, and it may sometimes be difficult for those on the sidelines to appreciate the conditions under which decisions are made – conditions of uncertainty and with little temporal discretion. In theory, a prosecutor might have a keen appreciation of the circumstances under which police decision making takes place.
CHAPTER III: DEVELOPNG CRITERIA FOR JUDGING POLICE-INITIATED DEATHS OF UNARMED MINORITIES
Police authority to use force is gifted to them. That is to say, police are given the authority to use the force that we would be justified in using ourselves were there no police.[75] At bottom, that is a moral authority to use force in self-defense and in the defense of others. It is first and foremost a protective authority, though in our own case it may also involve the authority to punish. In the division of labor that we have institutionalized, however, we have assigned the latter authority to the courts, which, after judgment, may impose punishment through a system of fines or other penalties overseen by probation, parole, and jail/prison officials.
This complex system for the use of force is, ultimately, a response to what are seen as failures in the exercise of our own authority on our own behalf. Insofar as we have the ability to exercise our natural authority, we are inclined to be impulsive, partisan, tunnel-visioned, vengeful, and self-interested. In theory, the criminal justice system operates to minimize the failures of a “state of nature.”
The use of deadly force requires a more stringent defense, because it threatens to circumvent the process of judgment and sentencing that we have instituted for socially intolerable (i.e., criminal) conduct. Hence, in 1985, the US Supreme Court constrained the old fleeing felon rule that permitted police to shoot escaping criminal suspects.[76] Only in cases in which the felony involved grievous harm or the threat thereof, and/or the fleeing felon posed an ongoing risk to police or others, were police justified in risking short-circuiting the criminal justice process in the course of apprehension.
(A) Is/Was the use of force necessary?
Although it may appear that, when judging police uses of force, we should look at the immediate circumstances surrounding the action in which somebody died – that is what the law is likely to look at – morally, at least, we should include in our concern what led up to the use of force. What has the look of a “tragedy“ may have been avoided had matters been handled differently in the first instance.
It may have been “tragic” that Eric Garner died when he was arrested – but should he have been arrested in the first place? Perhaps Caesar Goodson showed indifference to the plight of Freddie Gray when he was put into the van. But should Freddie have been apprehended and arrested in the first place?
It may have been tragic that Michael Brown was killed in his encounter with Darren Wilson, but did Wilson initially speak to Brown in a way that provoked a confrontation that need not and should not have happened? It may have been tragic that Sandra Bland committed suicide (presuming she did), but did any of her earlier actions warrant her arrest?
There is always going to be a question about where a tragedy begins and whether it could have been avoided. Moral responsibility has a way of extending itself over sequences of events. There is a sequential character and dynamism to events that should caution us against tendentious pigeon-holing.
Certainly police need to make judgments about what force to use and when, but they also need to make judgments about how to handle situations before the use of force is even considered. Police are authorized to act in the community in a range of ways, and how to use force is not the only or even, often, the first option.
Ideally, they should act in ways that diminish rather than increase the likelihood that force will be used. That is an important part of their professionalism. But there is often a painful dissonance between the “Courtesy Professionalism Respect” (CPR) emblazoned on (NYPD) police vehicles and what characterizes actual police–citizen encounters – when a lack of CPR generates the need for CPR (cardiopulmonary resuscitation).[77]
[78] [Credit: pixelarity/Flickr].
Morally, then, we need to look back at what preceded the encounter, and not simply at the forcible encounter itself. A triggering event is part of a larger narrative, and to judge it we may need to know more than we do about that larger narrative.[79] How far back we should go will raise interesting and important questions of judgment.
I would be reluctant to rest too heavily on Baltimore’s racial history in trying to account for what happened to Freddie Gray, even though it is in some sense quite relevant. At the same time, we should not think that looking back and finding some moral responsibility in what went before necessarily detracts from such responsibility when force was actually used.
If we choose to hold Caesar Goodson accountable for what happened to Freddie Gray, that doesn’t relieve the three white officers of responsibility for arresting him, or even those who made downtown Baltimore what it was. Moral responsibility is not a fixed moral quantity that must be parceled out in diminishing amounts.
(B) Proportionality
Assuming that a situation cannot be controlled without some use of force, the next decision concerns what and how that force is to be used. As the primary social repositories of force, police are permitted to exercise it, albeit appropriately. Generally that will comprise what is usually termed intermediate force – force that may involve physical manipulation (some form of hammerlock or other restraint) or the use of various tools for intermediate force – batons, OC spray, tasers, or handcuffs.[80]
Each means of intermediate force can be employed in different ways, and not every way of using it is justifiable. For example, whereas use of a hammerlock may be appropriate, a chokehold may not be; use of a baton on the legs may be legitimate but not on the head. Most departments give some support for what is seen as a “use of force continuum,” in which different degrees of force are matched with different levels of need, as determined by resistance or threat.[81]
The main ethical issue here is one of proportionality, where proportionality has two dimensions – one relating to effectiveness and the other to considerations of fairness. Police may use enough force to bring a situation under control, but they should not use force that is disproportionate to the seriousness of the harm or threat. One of the chief moral hazards associated with intermediate force is that tactics are often disproportionate to the presenting situation. They may be effective but unfair.
Tasers (and threats to tase) are used far more often than is necessary, simply because they are convenient. A person who is passively resisting – say, a protestor holding up traffic – can be carried away and (if appropriate) arrested, but many police find it easier to employ a taser (or OC spray). The same can be said when spray or tasers are used against people who answer back.[82] There are, in addition, special risks associated with some intermediate force tactics such as tasers, and these should be kept in mind.
For example, taser deaths have sometimes been linked with certain mental or drug-related conditions, and officers may be advised to avoid their use in such circumstances. Their use will also be problematic in other cases – when used repeatedly against a person or against a person who may be seriously harmed if felled.[83] Other cases may not be so clear.
Even if Michael Slager had reason to chase Walter Scott, did he need to (threaten to) tase him (let alone shoot him)? The criterion to be applied, however, is clear enough: use no more force than is necessary. That consideration is violated on almost every occasion when police seek to apprehend a resistant or fleeing person.
Because deadly force jeopardizes or circumvents the criminal justice process, its use is restricted to special circumstances – those in which life or serious harm is at stake. Deadly force is constituted by forcible tactics whose use makes death a reasonable probability. Obviously a service revolver will qualify, even though not every use will cause death.
The reason why chokeholds have been banned in a number of police departments is that, unless expertly applied, the pressure they place on the carotid artery or larynx may easily result in death. Much of the uproar over Eric Garner’s death concerned what appeared to be a prohibited chokehold use to assist in his arrest.[84] Even though some police departments permit alternative neck restraints,[85] the rough and tumble of an arrest can easily transform a “safe” maneuver into an “unsafe” one.
[Caption: “Activists protest outside Gracie Mansion, the traditional home of New York City mayors, calling for further action against Daniel Pantaleo, the New York Police Officer who used a New York Police Department banned choke hold and killed Eric Garner while detaining him in 2014, on December 3, 2015 in New York City. Today marks the one year anniversary since a grand jury declined to indict Pantaleo in the death of Eric Garner”. Andrew Burton/Getty Images].
Not every case in which a person is armed will be sufficient to justify police use of what turns out to be deadly force. Where possible, police should provide a decent opportunity for a person to lay down a weapon before using their own. The rationale for this is simple, and one of the things that distinguishes police from soldiers. Their role is not to kill but to bring a situation under control so that it may be handled by the criminal justice (or perhaps mental health) system. They should use the least amount of force necessary to achieve their ends (recognizing, of course that this is not to be calibrated from the perspective of 20/20 hindsight). There is rarely a reason to expect immediate compliance. Sometimes it takes time to persuade a person that surrender is the best option.
“The role of police is not to kill but to bring a situation under control so that it may be handled by the criminal justice (or perhaps mental health) system”.
Not every threatened harm will be serious enough to warrant the use of deadly force. Obviously a scratch won’t do; permanent disablement probably will. Some judgment will need to be made as to whether the threat is serious enough. This may also require some reference to the intentions and capacity of the threatening person. We are often disturbed when police shoot armed but deranged individuals, believing that it is better that the threat they pose is handled by a specialized squad rather than a cluster of officers determined to get control of a situation.[86]
Clearly the shooting of unarmed black men does not qualify under such conditions. If they are unarmed and not actually threatening, they pose no danger to life and limb. (Of course, even if they do threaten but are unarmed, the threat may be empty. I leave such cases aside.)
When Michael Slager shot Walter Scott, he did so because he was pumped up (and probably angry) when Scott fled and he gave chase, not because he was at risk. Of course, Slager realized this well enough to relocate the taser that had been “taken” from him. Absent the video, his initial account of what happened might have enabled him to escape indictment.[87] Despite the grand jury proceedings, I remain unconvinced that Michael Brown posed the threat that Darren Wilson claimed he was.
(C) The tricky relevance of subjective fear: subjective fear v. objective threat.
In developing criteria for using deadly force, the most problematic one concerns the appeal that police make to a threat or, more subjectively, to “fear for their lives.” It is this appeal – almost a mantra – that is heard when those killed turn out to be unarmed. In support of this claim, officers will assert that “he was reaching for his waistband” (where he may have had a weapon); “I saw something glinting” (which I took to be a weapon); “he had something in his hand” (that I believed was a weapon); “I believed that he had fired a weapon” (the killings of Amadou Diallo[88] and Timothy Russell/Malissa Williams[89]); or some variant on these (he appeared to be threatening others – John Crawford III[90]). It is a critical formula that almost always plays well, unless something turns up (a video?) to counter it. But even a video can be parsed. Moreover, to the extent that we accept that police are there to secure us against plausible threats to our (or their) lives, it has a certain resonance that enables us to give them the benefit of any doubts we may reasonably harbor. At least it secures them against the high demands of the criminal law.
[91] [Credit: Thomas Hawk/Flickr].
How plausible need such claims be in order to relieve an officer of responsibility for killing an unarmed person? Is it enough that the police officer asserts that he was in fear of his life? Is it enough that the police officer was in fear of his life, even though he had no reason to be? Or that others were at risk? Should the officer be required to provide some objective and plausible basis for that fear? Is it enough that an officer could have been at risk?
It is at this point that we find a deeply problematic gap between what the law allows and what appears to be morally acceptable. It is especially here that more work needs to be done to bring law and ethics into some sort of congruence. It is also here that uncertainties have been relentlessly exploited in favor of police.
Several factors need to be taken into account. First, although we expect police officers to accept risks that others of us may choose to avoid, that should not include unreasonable risks. We may expect greater risks of soldiers; but police must operate within the boundaries of a community, and they must weigh their obligations to fellow citizens against dangers to themselves. They may not shy away when others are endangered, even if that places them in danger. On the other hand, they should not be expected to expose themselves to unnecessary danger.
What constitutes an unnecessary danger? One in which their being at serious risk can be envisioned? Or should there be some constellation of factors that makes mortal danger imminent? Or some less risky but equally effective strategy is available? And who is to judge? If police are taught that any situation in which they are not in full control is one in which they could be at risk of losing their lives, is it the fault of an officer or of an officer’s training if mistakes are made?
Secondly, however, if police are to fulfill the role they have taken upon themselves, they need to have some acceptable grounds for thinking that they (or others) were at risk and not simply could have been at risk. This is part of their professionalism and, as the ceders of our authority to them, we may hold them to acceptable professional standards.[92] Unlike the rest of us, untrained to distinguish genuine from possible or only apparent threats, police are expected to show the evidence of their professionalism. That of course does not mean that there will not be hard cases or tragic mistakes. There will always be hard cases, but we will expect a higher standard of discernment by police.
“Unlike the rest of us, untrained to distinguish genuine from possible or only apparent threats, police are expected to show the evidence of their professionalism”.
If, then, police make some claim about what it was that put them in fear of their lives, we should expect them to tell a plausible story that gives us reason to think that they were performing at an acceptable professional level. If we expect ordinary people who shoot in defense of themselves to have reasonable (if not accurate) grounds for thinking that they were under threat, we should expect no less, and more, of police who are trained to protect our rights. It is not enough that an officer be able to provide a coherent narrative – it should involve some sort of evidence that would persuade the rest of us to think that this officer, despite his or her training, reasonably (even if incorrectly) believed that he or she was under threat.
It is the confusion of possibility with evidence that has been exploited by William Lewinski, the foremost “expert” defender of police who have shot unarmed suspects. Using a series of self-made videos, Lewinski has argued that in almost every situation in which police are not in full control of a suspect, they will not have sufficient time to respond if the suspect has access to a weapon.
In practical terms, what that means is that if the suspect had been armed, police would have been at a disadvantage. All that needs to be asserted, therefore, is that the police officer believed himself to be in fear of his life. Given the training offered by Lewinski’s organization – reputedly to many tens of thousand officers – it provides officers (with or without such training) with a reason to think that, absent their full control, they are at risk, and therefore not unjustified in using their weapon.[93]
What we need to do is demand of police reasons that will take us beyond the equally reasonable suspicion that skin color (or a sense that one lacks full control – often mediated by skin color) is a factor in determining dangerousness to life. For it is undoubtedly true that many of us are culturally inclined to allow skin color to accentuate our sense of both criminality and threat.[94] Police professionalism requires that police discount color (and mere possibility) as a threatening factor, and respond only to considerations that make it reasonable that they feared for their (or other) lives.
A mere assertion of belief shouldn’t be enough. That would provide an “out” to every officer who shoots an unarmed person – in effect, the claim that Lewinski makes. That is what Michael Slager attempted to exploit in North Charleston before the video turned up to undermine the sincerity of his claim.[95]
But how can we determine sincerity, and is sincerity enough? We should expect some plausible indication why the officer believed that he was under threat. What if the officer says that he thought the person was holding something that could have been a weapon, even though it turns out that he was not? Then there may be a problem, if not with the officer’s sincerity, then (usually) with his professionalism. Someone who too easily fears for his life or fires a weapon that he has at the ready should not be a police officer.[96]
The point here is not to demand that police never make mistakes, but that when and if they do make mistakes we be able understand why even a professionally trained person could have made one. What seems to happen – and this is critical to the current controversies about unarmed black men – is that the color of a person’s skin plays a role in the perception of dangerousness or threat. Even though it may be a widespread belief that those with a dark skin color ipso facto pose a greater danger than those with a lighter skin color, we cannot tolerate that status quo on the part of those to whom we have given power over life or death.[97] It is a problem for police departments as well as for individual officers when that larger social prejudice is not counteracted. And it is a problem when training organizations wittingly or unwittingly reinforce the prejudice.
“Someone who too easily fears for his life or fires a weapon that he has at the ready should not be a police officer. The point here is not to demand that police never make mistakes, but that when and if they do make mistakes we be able understand why even a professionally trained person could have made one”.
My own view – certainly in the case of unarmed people – is that if the officer is not to be charged with or convicted of some offense, then the onus should be on that officer to provide a case against indictment. The reason is a fairly simple one: taking life – any life – is a very serious business and the onus should be on an officer to be reasonably sure that taking the step of using deadly force is warranted.
Saying that you thought the person had a weapon or something dangerous when the person had nothing of the kind and nothing that could reasonably be mistaken for such, is to lower the bar too much – especially for someone who is professionally trained to make life and death judgments. I’m not saying that an argument is not possible: some configuration of lighting and/or timing might make for a plausible story. But it needs to have some evidential basis and the onus should be on the officer to make the case.
At the very least, the officer should be able to convince an ordinary citizen that, if s/he were in the same position, it would have been reasonable to use the deadly force.[98] Given that it is reasonable to expect police officers to be professionally trained for their work (one reason why we cede this power to them), the bar of reasonableness should be higher.
I do not wish to downplay the temporal or circumstantial dimensions of such decision making. The expectation of 20/20 hindsight is unreasonable. Nevertheless, I think it realistic and wise, especially in these days of handhelds, that caution is exercised before firing weapons or taking other potentially lethal action. In the event, a police officer may unholster his weapon if he is unsure. Should it turn out that the other person has a deadly weapon and can use it effectively, then the officer is still likely to be at an advantage. The law grants more than enough leeway to officers who – it turns out – make tragic mistakes. It needs to expect more of those to whom it accords the power it does. From him to whom much power is given great responsibility is to be expected.
Most cases of police being shot are not cases in which the officer – aware of an ambiguous situation – has waited too long.[99] What must not be forgotten is that the cost of a mistake may well be the loss of an innocent person’s life. Yes, the mistake may be that of the officer who hesitates too long or does not perceive that the other person is armed. But far too often it is the mistake of an officer who reacts prematurely. The statistics tell a story that is often lost in the stylized and formalized aftermath of an incident.
Moreover, as we have increasingly had reason to believe from video-recorded evidence, what officers have claimed as justified or “merely tragic” (Walter Scott, Tamir Rice, John Crawford III and, I believe, Eric Garner) is better characterized as a botched response. Even if criminal charges may not always be appropriate, the consequences for officers and the departments that train them are usually inadequate. Criminal negligence is not contemplated, and civil settlements – the favored response – are borne by cities rather than departments. Apart from public outcries, departments have usually had relatively little incentive to do better.
We live in a world in which many if not most people carry handhelds of some kind – cell phones or ipads, not to mention glasses cases and wallets, and it should no longer be sufficient for an officer to say that he thought the person had or was reaching for a weapon and that he was “in fear of his life.” It is unprofessional not to consider alternatives.
Of course, the situation is more problematic if the person is carrying a (toy) gun, but even then officers may exercise poor discretion. Although there was an important failure of communication in the case of the shooting of 12 year-old Tamir Rice (the 911-caller stated that he thought that it was a juvenile with a toy gun), the officers may have got away with defensively shooting him had he been reaching for a weapon after they apprehended him. But the subsequent video of their actions indicated fairly clearly that they improperly embellished their story in a self-justifying way. Here is a case in which, absent the video evidence, we might have been inclined to say that the shooting was a tragic mistake.
And we might also have been inclined to say the same in the case of John Crawford III, who was holding the BB gun in a Walmart store: the police story and the video conveyed importantly different narratives. This is also the kind of case in which one is inclined to ask: Would the police have acted as they did had Crawford been white?[100]
Merely tragic mistakes will occur. Life does not come to us neatly packaged and, in the case of police, what presents itself may – without the clear vision of hindsight – appear more dangerous than it actually was. The case of Amadou Diallo was difficult, and though I am inclined to think that shifting all the responsibility to police training was something of a “cop out,” the circumstances were more ambiguous than they have often been. A more professional (and less gung-ho) group of officers would probably have been more circumspect.
Although the killing of unarmed black men is often seen as a simple matter of latent or not-so-latent prejudice on the part of white police officers, it is not quite as simple as that. For enculturation is not only a matter of skin color but also of social role, and black police officers have also been problematically involved in violence against (especially) black males.[101]
CHAPTER IV: THE CURRENT CROP OF CASES
There is always a certain amount of risk in making judgments about particular cases when they are recent and still under some form of investigation. We are easily manipulated by media accounts that are good for financial bottom lines but less beneficial to the cause of justice. At the same time, we cannot ignore the fact that, were it not for the media, various “authorities” – whether governmental, corporate, institutional, or individual – would manage to “get away with murder.”
David Burnham’s exposé of the deeply corrupted NYPD of the late 1960s was not merely critical but also necessary to the major review and reforms that needed to be made to that illustrious institution.[102] “Watergate” needed the muscle that only the media can provide.[103] Even in democratic and free societies, corruption can be so deeply entrenched (or so well-protected) that the resources for its exposure are vulnerable to its crushing effects.
Nevertheless, we cannot allow either uncertainty or corruption to intimidate us from offering at least some preliminary judgments about cases. And in many of the recent instances in which African-American males have been killed by police, there appears to have been an unnecessary (and sometimes willful) overreaching of police authority.
Eric Garner
Despite the pressure on officers to target the selling of “loosies,” and Eric Garner’s admitted involvement in selling them, it still appears to me that poor judgment was exercised in deciding to arrest him at that time and place.[104] Maybe the same outcome would have resulted had he been caught in flagrante delicto, but then at least he would have had less reason to resist arrest and the likelihood of his demise would have been diminished. Did Daniel Pantaleo act criminally when he sought to bring Garner under control? Probably not, though I am less sure that he did not violate departmental regulations.[105]
My own view is that more damage was likely to have been done by the officer on his back than Pantaleo – in other words, given his medical condition, Garner was likely more susceptible to pressure on his chest and lungs than to the neck hold that brought him to the ground. That too was shown by the video record, but we were so transfixed by the neck hold and Garner’s desperate utterances, even though both were in plain view. The deepest problem, in my view, was the decision to arrest him at that time. There was no good reason to do so and thus to use force. Even if he had been selling loosies at the time, the police could and probably should have issued a summons.
Michael Brown
Michael Brown’s case is complicated by the fact that we are not really privy to what went on between Wilson and Brown/Johnson.[106] The eyewitness accounts vary, and although –at least with respect to the terms of the initial communication as they walked along the center of the road[107] – I am inclined to trust the account of Dorian Johnson rather than Darren Wilson, I can accept the ambiguity of what subsequently occurred and – at least so far as the situation unfolded – that the factual and therefore legal and moral situation was unclear.[108]
Although, for reasons already explained, I thought Wilson’s testimony unconvincing, other witnesses did not offer a sufficiently clear and convincing alternative. At least, that was so, given the way in which the grand jury proceedings were conducted. Had the prosecutorial inquiry been more sympathetic to Brown, a different outcome may have resulted.
Brown was not entirely innocent, but Darren Wilson was lucky and his colleagues in the Ferguson Police Department surely realized that this was so. His subsequent resignation was not merely a public relations gesture, even if it was cast as a sop to public opinion. As it later turned out, the problems in Ferguson ran much deeper than the particular encounter[109], and some of them continue to dog efforts to rectify the situation. A wrongful death suit filed against the city, the former police chief, and Wilson, has yet to be settled[110], despite a consent decree between Ferguson and the federal government.[111]
Akai Gurley
In Akai Gurley’s case, police and public opinion converged as it became clear not only that Gurley could not be seen as a threat to anyone’s life, but also that Liang acted in ways that were designed to be self-justificatory or at least self-excusatory.[112] On February 11, 2016, Liang, who somewhat surprisingly chose a jury trial, was found guilty of manslaughter. He has since then been sentenced to 5 years probation and 800 hours of community service, escaping prison. It is interesting to reflect on what might have been had Liang been a longstanding member of the NYPD (even though in that case what he did might have been less likely).[113] In the Gurley scenario, the claim that one “feared for one’s life” or even that the firing was accidental provided very little on which an adequate excuse could be erected.
Tamir Rice
The case of Tamir Rice provides a troubling contrast between police accounts and subsequently emerging video accounts. It is hardly surprising that police should seek to offer an account that makes their actions reasonable. Clearly they were not initially aware of a video recording their actions, and even the lengthy subsequent report failed to establish the officers’ initial claims.[114] The challenge they faced was to mesh what they said absent their knowledge of a video with what the recording revealed, and that is not easy to do.[115] Nevertheless, it was aided by two publicly released reviews of the videotape commissioned by the Cuyahoga prosecutor, both of which argued that the officers actions were constitutionally “reasonable.”[116]
Rice’s movements were said to have put Officer Loehmann in fear of his life. Though the reviews no doubt assisted in the later refusal to indict either officer, they evinced a certain narrowness of perspective and created considerable skepticism about the prosecutorial process. The fact that the police car was driven so close to Rice, the speed with which the Officer Loehmann used his weapon (supposedly after multiple warnings), along with the subsequent actions of the officers did not evidence much by way of professional judgment. A wrongful death claim remains unresolved.
Walter Scott
Walter Scott’s case is susceptible to a similar account. The officers in Rice’s case argued that after warning him, Rice reached for the “gun” in his waistband, thus placing them at risk. In Michael Slager’s initial account, Scott sought to relieve Slager of his taser – was all over him – thus putting him at risk. In both cases, though more obviously in Scott’s, the video record called the police account into question. Walter Scott’s family accepted a $6.5 million settlement from the city of North Charleston, and Slager was released on bail in January, 2016, placed mostly under house arrest until his trial, scheduled for October, 2016. He has, however, been fired from the police department.
John Crawford III
A similar judgment of police wrongdoing appears justified in the shooting of John Crawford III. Police reports of Crawford’s unresponsivenesss to orders to drop the gun and lie on the ground are belied by the store camera, which strongly suggests that Officer Sean Williams shot without warning, and that Crawford was not endangering anyone.[117] At the very least Crawford seems to be unaware of any orders being given to him.[118] In all these cases, force appears to have been unnecessary and, when used, disproportionate. What may have saved the officers from indictment was the fact that they were responding to the report of a 911 caller who claimed that Crawford was brandishing the weapon and pointing it at people, a claim the caller later retracted and seems at variance with other video evidence.[119]
Freddie Gray
What would have happened had Freddie Gray, “catching the eye” of the three white officers, decided not to run? We don’t know for sure, though, given the reputation of police in that West Baltimore neighborhood, there was a high probability that he would have been stopped and frisked, and that the knife in his pocket would have been found. That would have led to his arrest (whether or not it violated Maryland state law) and, added to Freddie’s pending cases, would have landed him in jail. Whether a stop and subsequent frisk would have been constitutionally justified is questionable.
Freddie was probably aware of the likely consequences of a stop and decided to make a run for it. That of course would have “confirmed” what were probably unwarranted suspicions – unwarranted in the sense that Freddie had not at that stage done anything to warrant stopping, let alone frisking. How much justificatory work was being done by Freddie’s being a young black male?
Given that Freddie did run, it is hardly to be expected that the officers would “let it be.” That, however, falls short of justifying the predictable and surely disproportionate beating he received on being caught and arrested. The video and eyewitness records are somewhat ambiguous as to Freddie’s condition when he was placed unsecured in the van, and therefore leave it unclear how susceptible he was to the further damage that appears to have been sustained during the van ride to the police station.[120]
Whatever the legal outcome so far as the officers are concerned, Freddie’s treatment exposed a serious problem in the way in which West Baltimore was being policed.[121] Subsequently, Baltimore reached a $6.4 million settlement with Freddie Gray’s family and the first of individual trials for the officers was held in December, 2015. It resulted in a hung jury. Currently there are questions about the effect of this on subsequent trials, as William Porter, the officer involved, must testify in the trials of other officers.[122]
Sandra Bland
Sandra Bland’s sad case (whether or not she committed suicide) should never have occurred, and reflected the kind of aggressive minority-oriented policing that is (apparently) all too common in that part of Texas (Waller County). From the police car camera, it appears that Bland changed lanes (albeit without signaling) in order to allow the rapidly advancing police car to pass her. Given the lack of danger to anyone else, the infraction should probably have been ignored.[123] In any case, there was no good reason, apart from an aggressive and authoritarian officer, Brian Encinia, for the case to have escalated into a threat and arrest. Her inability to post bail simply aggravated a situation that was already out of proportion.
After the initial outcry, Officer Encinia was relieved of his duties. Subsequent scrutiny of his actions has led to his indictment for perjury – his claim that he removed her from the car to conduct a safer investigation being deemed unpersuasive.[124] Steps to fire him have been initiated. Once again, one asks in such cases, would it have happened had Bland been white?
Sam DuBose
Although it may be tempting to argue that, by seeking to drive away, Sam DuBose dramatically escalated a situation (a simple failure to have his front license plate attached) that had already grown out of proportion. The officer, Ray Tensing, knew well that he had no reason to shoot DuBose as he drove off. The cover-up story – at worst fleeing from police – was reconfigured into one of placing the officer in serious danger – a matter that had been resolved by Garner in 1985. Here, the video evidence, also countering the statements of the other officers involved, led swiftly (even if the swiftness was political) to a murder charge and Tensing’s firing.[125]
Laquan McDonald
McDonald’s shooting occurred in late 2014, but it was not until judges’ orders over a year later that the police dashboard video of the shooting was released. Although McDonald had a small (folded) knife, the video – showing that he was shot 16 times from a safe distance – was at clear variance with an initial police report (which had him lunging at police with an open knife).[126] It appears that, coming just before a hotly contested mayoral election, there was some collusion – between police, the Cook County, Chicago, prosecutor (Anita Alvarez) and the mayor’s office – to suppress the video. Within hours of the video’s release, the officer involved, Jason Van Dyke, was charged with murder.
[Caption: “Protestors including Lamon Reccord, 16, confront police during a demonstration in response to the fatal shooting of Laquan McDonald in Chicago, Illinois November 25, 2015. Laquan McDonald, 17, was fatally shot by Jason Van Dyke, a Chicago police officer, in October 2014”. Andrew Nelles/REUTERS].
The McDonald video also served to turn a media spotlight on a history of police overkill in Chicago, resulting eventually in the police chief’s firing. Even though Chicago has a long history of violence, police have rarely been held accountable for using excessive force. Admittedly, McDonald had a troubled background, with drug use and mental health problems, but Van Dyke also had a history of excessive force complaints, for most of which he had probably not been held appropriately accountable. A $5 million settlement with McDonald’s family was approved one day after the mayoral election.
CHAPTER V : STEPS FORWARD
Ultimately, the solution to the longstanding problem of policing minorities lies in beliefs and attitudes. Were racial stigmatization to cease, #blacklivesmatter would no longer have currency. Of course, that by itself would not transform policing into the noble occupation it is intended to be. All lives matter, and there would still be problematic police–citizen encounters. The $64 question is: How do we institute a social order in which skin color or ethnicity or some other problematic status no longer intrudes on its policing practices?
There are some very obvious but idealistic options that involve people getting to know each other as fellow human beings, without the mediation of stereotypes. That should be a function of education, of social intermixing, and de-ghettoization. Although there have been some advances in these matters they have not been smooth, uniform, or without setbacks and they are not easy to implement.
Humans generally have shown themselves to be deeply tribal, and although the diversity that some aspects of tribalism have fostered has considerable value for human experience and flourishing, it also facilitates forms of disparagement of “the other.” We may have to content ourselves with a world in which there will always be a vocal minority for whom certain forms of otherness are given greater weight than common humanity. At the same time, we belong to a social and economic order that nourishes and relies on exploitation, and that too is likely to interfere with egalitarian attitudes.
Furthermore, we cannot learn these lessons once and for all. If human history has taught us anything, it is that each generation must learn its moral lessons anew. There is no permanent fix. Just as the war to end all wars never ended all wars, so too the limitations of our humanity seem destined to replicate themselves in each generation, and though we may ameliorate some of the evils of the past, they have a propensity to flare up like diseases that we believed we had eradicated.
This is not a counsel of despair, but of awareness, preparedness, and a concern to develop thoughtful strategies for making the future better for all segments of society. Whatever enlightenment the times may bring, we need to develop other ways of noticing and counteracting the invidious distinctions and discriminations that lurk beneath the surface of an idealized social ideology.
As social repositories of considerable power, racial and other discriminatory attitudes and practices on the part of police are particularly noxious and need to be addressed. True, those attitudes and practices will have to be tackled in the context of a society that, despite its pretensions, has itself been slow to move in more respectful directions.
As was the case with slavery, there are social stakeholders (such as investors in private prisons, or those who benefit from egregiously cheap labor) for whom the status quo is invidiously beneficial. Police may sometimes need to work in advance of some of their fellow citizens, even though as law enforcers they have an essentially conservative social role.
Whatever strategies we develop, they will probably have to change as times and circumstances change. Here are some suggestions – not particularly novel, and not silver bullets, but prompted by an inadequate status quo:
(1) Recruitment and advancement. For quite some time now, intermittent efforts have been made to recruit minorities into police work so that local police departments look more like the communities they serve. Although – as I have already noted – there is no magic to a police department whose constituency mirrors the constituency it polices, part of the idea behind such a movement is to help reinforce the notion that police do not – at least for some segments of that community – represent an alien force, but are fellow citizens in uniform who can be relied upon to ensure that rights are secured and, more generally, to keep or restore the social peace.
As it is, police forces in the US rarely reflect their constituencies, and everywhere the bias goes in pretty much the same direction. Women are not well represented, and people of color are poorly represented. In some cases, changing demographics have been partially responsible for skewed representations, but the differences have often reflected less desirable social tendencies, tendencies that are replicated from generation to generation in particular police departments.
Even when minorities have made it into police departments, they have generally not progressed as well as others. Whereas for the Irish and Italian communities, policing offered a way out of the working class into the lower middle or even middle class, this has not been the general experience of people of color. Efforts at minority recruitment and rectification in the 1980s and 1990s were often met with resistance from within police departments as well as from the wider community.[127] Within departments, promotions that appeared to be based on “quotas” or “affirmative action” rather than “merit” were particularly disruptive.[128]
To reiterate, there is no particular magic to having a police department in which the locality’s demographics are more or less reflected in the police department. Nevertheless, concern about demographics is reinforced by another statistic concerning residence. In “downtown” or inner city communities – often the most problematic – minority officers are considerably more likely than white officers to reside locally.
I grant that issues of residence for police are complicated – in part because of considerations of affordability and the fact that officers often live where they live because of family reasons (schooling, a congenial community, etc.). Nevertheless, insofar as it is the case that white officers are more likely to live in neighborhoods that are markedly different from the neighborhoods they police, the sense of identification they feel and the likelihood of their developing a neighborhood or community policing approach to their work is diminished. There needs to be some way of overcoming the cultural gap, with its socio-psychological impact.
(2) Training. Although many academies and departments make some effort at diversity training, much of it works at a level that is not well-attuned to street circumstances. Why is a black man reaching for his wallet or iphone more likely to be perceived to be reaching for a weapon than a white man?[129] Why are blacks routinely spoken to more roughly than whites?[130] Why are police more likely to stop and frisk blacks than whites? Why is force used against blacks proportionately more often than it is used against whites?
I don’t want to go so far as to claim that there is only one possible response to these questions. After all, black police officers are also more likely to use force against blacks than whites. At the same time, it is clear that encounters between police officers and black citizens are often affected or marred by assumptions about “the other.”
When discriminatory incidents occur, police departments are usually quick to suggest that they will review and improve the training they give to their officers. Yet this often appears to be a political strategy for avoiding certain kinds of oversight, and almost always looks like too little, too late, and a cause for cynicism. I do not wish to suggest that police departments are more inclined than other institutions/organizations to diffuse responsibility for their shortcomings. My only point is that in the case of police those shortcomings can have a profound social impact.
Police training does not end with graduation from a police academy. A great deal of what one learns one learns on the job, and an important part of that learning is localized. If we accept that police officers do not need to live in the neighborhoods they police – itself a matter of ongoing contention – then at least they have a strong obligation to integrate their understanding with the community or communities in which their policing takes place.
That at least was one of the purposes and strengths of community policing – a knowledge of and sensitivity to the social environment in which one’s policing takes place. As noted above, in urban communities it is often common for (especially white) police officers to live in neighborhoods that are very different from the ones which they police. How much effort is made to bridge that divide as part of police training?
(3) Accountability. My understanding of accountability is that it is first and foremost a matter of personal, professional commitment – a holding of oneself to the standards that are inherent in one’s occupation or role. It will include matters of competence as well as of judgment. True professionalism is characterized by accountability of this kind. That was formally acknowledged in the 1991 revised IACP Law Enforcement Code of Ethics:
“I know that I alone am responsible for my own standard of professional performance and will take every reasonable opportunity to enhance and improve my level of knowledge and competence”.[131]
Unfortunately, this kind of accountability cannot be relied upon in the world of humans as we know them. And that is true not only of police but also of any occupational grouping. However, lack of personal professional accountability is sometimes especially true of police – because of the blue wall of silence – and its social consequences can be particularly devastating. Police are resourced with means of force and intrusion that others lack, and their misuse can violate our most important rights.
This being the case – in policing as well as other occupations – it becomes necessary to institute various mechanisms of accountability – some of which will be internal to the institution, and some of which will be external. The main challenge – apart from ensuring that police fulfill their publicly mandated role – will be to ensure that the mechanisms are effective without undermining professionalism. That is, mechanisms of accountability should be of a kind that will foster personal professional accountability, not cripple it.[132]
Because video-recording has been a powerful tool in ensuring better accountability in situations involving uses of force, moves to equip officers with body cameras, and require their use, seems like a sensible measure. In theory of course, cameras cut both ways – they may help to protect officers against vexatious complaints as well as encourage officers to be respectful in their dealings with citizens. Although video-recordings are subject to potentially competing interpretations and misuse, they represent an advance on the “he said/she said” situation that has generally prevailed. Various pilot schemes have already been tried, with significant reductions in uses of force and complaints against officers.[133]
(4) Prosecutorial objectivity. As I noted earlier (II (F)), police and prosecutors tend to work closely together. It is in both their interests to pursue cases that will hold up in court (or in plea negotiations), and to do this a spirit of cooperativeness is important. It is for this reason that when police officers get into trouble there is often a deep conflict of interest – not simply between the officer and the prosecutor but also, because of police solidarity, between the prosecutor’s office and the local police department.
A prosecutor who “goes after” a police officer who allegedly steps out of line is likely to be seen as something of a traitor. If a prosecutor must take some action, it is expected that he or she will act in a way that is “sympathetic” to the officer’s situation. This would seem to be the general pattern in the US, where in very few, and usually only the most egregious, cases officers are indicted for uses of force or deaths in the course of duty.[134]
This was well illustrated by the support that police were happy to give to Robert McCulloch, the prosecutor in the Ferguson case, to Daniel Donovan in the Staten Island grand jury investigation of Officer Daniel Pantaleo, and to Anita Alvarez in Chicago. In Baltimore, however, where many considered (correctly) that there was a manifest conflict of interest between Marilyn Mosby and the charging of the officers involved in Freddie Gray’s death, the police union lawyers were caught off guard by her decision, and quickly found other and less plausible grounds for claiming that she had a conflict of interest and/or had made a political rather than a legally reasonable decision.
There is nothing inherently wrong about a conflict of interest – it represents a temptation to or, in a more political context, an appearance of bias. If a conflict of interest occurs, a person may resist the temptation or act in ways that would render visible any dereliction of duty or bias. We therefore often have reporting requirements and recusal options in cases in which a conflict of interest is likely to occur. Where trust has broken down in a community, even an appearance of impropriety may make it politic that recusal take place or an alternative arrangement is instituted.
Nevertheless, because of the conflict of interest inherent in situations in which a local prosecutor may need to consider charges against a local police officer, there have been calls for the appointment of a special prosecutor. There is something to be said for that – especially in a community in which trust in the police has already been eroded – and it may go some of the way toward relieving the conflict situation. However, if the special prosecutor lacks familiarity with the local situation, that could introduce problems of its own. Although hardly a new idea, the appointment of special prosecutor may at least be sensitive to the concerns of a group that (sometimes rightly) feels that the system is rigged against it. It also allows for the development of a specialized knowledge that enables a more probing investigation of potential police misconduct.
Although I am not holding my breath, there are now some signs that lack of perceived prosecutorial objectivity may be costly. In recent Democratic primaries, Tim McGinty in Cleveland (Tamir Rice’s case) and Anita Alvarez in Chicago (Laquan McDonald’s case) were both defeated, presumably for having too cozy a relationship with police and others in authority. Protest per se may not signal much, but a public willing to flex its electoral muscle may press local authorities in less compromising directions.[135]
(5) Legal review. The biggest barrier to a more satisfactory system for reviewing alleged police misconduct is the law itself. [136] I do not suggest that the police should be held to an unreasonably high standard of accountability. It does not do to have prosecutorial decisions that will have a chilling effect on police. Police should have enough room for discretionary decision making to allow them to act professionally.
Nevertheless, as professional actors, they should be held to a standard that (a) allows mistakes to be made, (b) allows reasonable mistakes to be made, but (c) does not offer a cloak for incompetence, negligence, or malice. The problem we currently have is that police are able to claim and get away with an appeal to fear for life, even when it is a hollow claim. Even a mistaken fear may sometimes serve to relieve an officer of responsibility; but where that is the case, the officer should be able to establish for or at least satisfy a wider public – the one served – that he or she acted professionally in the circumstances.
I don’t see that as easy. Darren Wilson’s polished – if somewhat prepped and staged – account of his encounter with Michael Brown, needed more probing than it got and, given the support structure that operates within police departments, such crafted presentations along with well paid “experts” will continue to present a challenge to a prosecutor, grand jury, and jury (or judge). We will never entirely eliminate a system in which some parties will have access to better or more polished legal resources than others.
CONCLUSION
It would go too far were I to claim that we have the police we deserve. Nevertheless, without the kind of commitment that we expect of other professionals, we can hardly be surprised if police reflect some of the less desirable as well as the more admirable aspects of the communities they are called to serve. To the extent that the larger structures that frame our social life are pitched against certain segments of that society, we should not be surprised that police as keepers of a legitimate social order also reflect some of its less acceptable understandings and prejudices. Our concern to reform the police should also be seen as a call to reform our wider society. Police are “us,” not “them.”
We are not locked into the past, even though we are deeply affected by it. Situations arise in which we are forced to reflect upon the status quo, and we are given the opportunity to create something better. Our sensibilities are sharpened, our imagination is stimulated to see a better future, and we are energized to work for it. Nothing is guaranteed, of course, and even progress can be reversed. But as Martin Luther King Jr was able to dream from the Lincoln Memorial,[137] we too can dream and work for a better future, one more aligned with the ideals that have made the American experiment such a distinctive contribution to history.[138]
Footnotes & References
[1] James J. Fyfe, “Structuring Police Discretion,” in Handled with Discretion: Ethical Issues in Police Decision Making, ed. John Kleinig (Lanham, MD: Rowman and Littlefield, 1996), 184.
[2] I have in mind, of course, a particular conception of “social order” and “public peace” – one compatible with the expectations of a liberal democratic polity. It may have a different resonance elsewhere – say, in China, North Korea, or the Russian Federation.
[3] See http://www.americandialect.org/2014-word-of-the-year-is-blacklivesmatter. The “word” has now morphed into a movement, alternately praised and derided: see Wikipedia Editors, “Black Lives Matter,” at: https://en.wikipedia.org/wiki/Black_Lives_Matter, and: http://blacklivesmatter.com/.
[4] For an overview, see Damien Cave and Rochelle Oliver, “The Videos That Are Putting Race and Policing Into Sharp Relief,” New York Times, 7/30/2015, available at: http://www.nytimes.com/interactive/2015/07/30/us/police-videos-race.html, along with various associated articles.
[5] Eyewitness accounts, although often taken at face value, have proven less than adequate to the situation. This was clearly evident in the conflicting eyewitness grand jury testimony in Ferguson, MO, but had been well-known beforehand. See, for different samples, Henry F. Fradella, “Why Judges Should Admit Expert Testimony on the Unreliability of Eyewitness Testimony,” Federal Courts Law Review 2 (2007): 2- 29; Hal Arkowitz and Scott O. Lilienfeld, “Do the ‘Eyes’ Have it?,” Scientific American Mind 20 (January 2010): 68-69; Jim Dwyer, “Witness Accounts in Midtown Hammer Attack Show the Power of False Memory,” New York Times, 5/15/2015, A21, available at: http://www.nytimes.com/2015/05/15/nyregion/witness-accounts-in-midtown-hammer-attack-show-the-power-of-false-memory.html?_r=0; and Gary L Wells and Steven D. Penrod, “Eyewitness Identification Research: Strengths and Weaknesses of Alternative Methods,” in Research Methods in Forensic Psychology, ed. B. Rosenfeld & S. D. Penrod (Hoboken, NJ: John Wiley and Sons, 2011), 237-256.
[6] Many thanks to Steve Sack for his permission to use his cartoon (See: Steve Sack, “Sack cartoon: Ferguson Law enforcement”, Star Tribune, (8/19/14), available at: www.startribune.com/sack/cartoon/ferguson/law/enforcement/271917141).
[7] Many thanks to Robert Ariail for his permission to use his cartoon (See: Robert Ariail, “Ariail on police shooting”, The State, available at: www.thestate.com/opinion/editorial-cartoons/robert-ariail/article18194468). ROBERT ARIAIL © 2015 Spartanburg Herald-Journal. Reprinted with permission of UNIVERSAL UCLICK for UFS. All rights reserved.
[8] For a summary, see Wikipedia Editors, “Rodney King,” available at: http://en.wikipedia.org/w/index.php?title=Rodney_King&oldid=662101825.
[9] In many jurisdictions, interrogations must now be videotaped, and police cars have been provided with dashboard cameras. In Albuquerque, NM, the case of James Boyd, a mentally ill, homeless man, which was captured on a police dashboard camera, brought to a head longstanding but previously “unsubstantiated” concerns about policing practices within the Albuquerque PD. See Rachel Aviv, “Your Son Is Deceased: The City Has One of the Highest Rates in the Country of Fatal Shootings by Police, but No Officer Has Been Indicted,” The New Yorker, 2/2/2015, available at: http://www.newyorker.com/magazine/2015/02/02/son-deceased. In addition, in a number of departments there have been moves to require officers to wear body cameras. Add to this the proliferation of CCTVs since 2001. It bears remembering, though, that videotapes represent only one additional resource for determining the legitimacy of police conduct and must themselves be released for review and then interpreted.
[10] Although the primary focus of this discussion is African-American relations with police, those with Hispanics/Latinos have also been troubled, albeit not to the same degree. See Ronald Weitzer, “The Puzzling Neglect of Hispanic Americans in Research on Police–citizen Relations,” Ethnic and Racial Studies 37, no. 11 (2014): 1995–2013.
[11] See particularly the writings of Heather MacDonald, archived at: http://www.manhattan-institute.org/html/mac_donald.htm.
[12] See, further, Charles Tilly, Credit and Blame (Princeton, NJ: Princeton University Press, 2008). Thanks to Shlomo Einstein.
[13] The distinction is a somewhat tricky one. Not every “tragic accident” will be a “merely tragic accident.” It was a tragic accident when NYPD officer Peter Liang shot Akai Gurley, but not a merely tragic one, as Liang appears to have acted negligently or recklessly, even though his shooting of Gurley was accidental. See notes 67, 112 and text below.
[14] Rich Juzwiak and Aleksander Chan, “Unarmed People of Color Killed by Police, 1999-2014,” available at: http://gawker.com/unarmed-people-of-color-killed-by-police-1999-2014-1666672349. There are, however, many more expansive tallies. See, e.g., “Unarmed Victims of 2014,” Mapping Police Violence, available at: http://mappingpoliceviolence.org/unarmed/.
[15] Getting accurate figures is notoriously difficult, given the incompleteness of the relevant official and unofficial data. (See, generally, Matt Apuzzo and Sarah Cohen, “Data on Use of Force by Police Across U.S. Proves Almost Useless,” New York Times, 8/11/2015, available at: http://www.nytimes.com/2015/08/12/us/data-on-use-of-force-by-police-across-us-proves-almost-useless.html?emc=eta1&_r=0). Nevertheless, whichever way they are responsibly sliced, blacks and unarmed blacks are disproportionately killed by police. For some attempts to compile relevant statistics, see Ryan Gabrielson, Ryann Grochowski, and Eric Sagara, “Deadly Force, in Black and White,” ProPublica, 10/10/2014, available at: http://www.propublica.org/article/deadly-force-in-black-and-white; Jaeah Lee, “Exactly How Often Do Police Shoot Unarmed Black Men?” Mother Jones, 8/15/2014, available at: http://www.motherjones.com/politics/2014/08/police-shootings-michael-brown-ferguson-black-men; John Greenberg, Linda Qiu, Kate Sanders, and Derek Tsang, “Fact-checking Claims About Race After Ferguson Shooting,” Poynter.org, available at: http://www.poynter.org/news/mediawire/266133/fact-checking-claims-about-race-after-ferguson-shooting/; Wikipedia Editors, “List of Killings by Law Enforcement Officers in the United States, August 2014,” available at: http://en.wikipedia.org/wiki/List_of_killings_by_law_enforcement_officers_in_the_United_States,_August_2014; D. Brian Burghardt, “Fatal Encounters,” available at: http://www.fatalencounters.org/; Leslie Savan, “How Many People are Killed by the Police? We’re Only Beginning to Find Out,” The Nation, 6/8/2015, available at: http://www.thenation.com/blog/209337/how-many-people-are-killed-police-were-only-beginning-find-out; and “The Counted: People Killed By Police in The U.S”, The Guardian, 6/01/15, available at: www.theguardian.com/us-news/ng-interactive/2015/jun/01/the-counted-police-killings-us-database”.
[17] This has been a particular problem in New York. See, for example, John Cassidy, “The Statistical Debate Behind the Stop-and-Frisk Verdict,” The New Yorker, 8/13/2013, available at: http://www.newyorker.com/news/john-cassidy/the-statistical-debate-behind-the-stop-and-frisk-verdict. Since then, new rules have been introduced: see Trevor Kapp and Murray Weiss, “READ THE MEMO: Stop-and-Frisk Rules Change Under New NYPD Edict,” 3/4/2015, available at: http://www.dnainfo.com/new-york/20150304/midtown/read-memo-see-how-stop-and-frisk-rules-changed-under-new-nypd-edict. For two recent cases in New York that did not involve stop-and-frisk, see those concerning NBA player, Thabo Sefolosha, and former tennis start James Blake: Dave Zirin: “NYPD on Trial: NBA Player Thabo Sefolosha Fights Back After Police Beating,” The Nation Magazine, 10/8/2015, available at: http://www.thenation.com/article/nypd-on-trial-nba-player-thabo-sefolosha-fights-back-after-police-beating/; J. David Goodman, “Officer in James Blake Arrest Used Excessive Force, Panel Says,” New York Times, 10/8/2015, A24, available at: http://www.nytimes.com/2015/10/08/nyregion/officer-in-james-blake-arrest-used-excessive-force-panel-says.html.
[18] Andrew Gelman, Jeffrey Fagan, and Alex Kiss, “An Analysis of the New York City Police Department’s ‘Stop-and-Frisk’ Policy in the Context of Claims of Racial Bias,” Journal of the American Statistical Association 102, no. 479 (2007): 813-823; Dylan Matthews, “Ray Kelly Says Stop & Frisk Saves Lives. There’s No Good Evidence for That,” Washington Post, 8/20/2013, available at: http://www.washingtonpost.com/blogs/wonkblog/wp/2013/08/20/ray-kelly-says-stop-frisk-saves-lives-theres-no-good-evidence-for-that/. This assessment has sometimes been challenged by police and political authorities. But mostly such challenges have been grandstanding and problematically defended. A previous NYPD Police Commissioner and Mayor incorrectly predicted a large surge in crime were existing practices to be scaled back. Changes in police practices are not to be equated with the withdrawal of police services, as occurred in Baltimore. See note 122 below.
[19] Conservatives will sometimes argue that black officers also treat their own roughly, and – for reasons that will become clear (see I B (2)) – I do not wish to deny that. I suspect, however, that those officers do not generally replicate such treatment in their dealings with whites.
[20] I should emphasize that, although the focus of this essay is the policing of minority communities, the problems extend to the criminal justice system as a whole and even to local polities – for example, pressures on police to pull (more than) their economic weight or the fee structures surrounding court processes. More on that later, but good resources are the FBI Investigation of the Ferguson Police Department, available at: http://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf, and Sarah Stillman, “Get Out of Jail, Inc.: Does the Alternatives-to-incarceration Industry Profit from Injustice?” New Yorker, 6/23/2014, available at: http://www.newyorker.com/magazine/2014/06/23/get-out-of-jail-inc.
[21] See the work of Nobel Laureate Joseph Stiglitz, esp. The Price of Inequality: How Today’s Divided Society Endangers Our Future (New York: W.W. Norton, 2012).
[22] See, for example, The Social Progress Index compiled by the Social Progress Initiative, available at: http://www.socialprogressimperative.org/.
[23] I do not wish to cast aspersions on the scholarly critiques of racial difference or to deny that “race” is a social construct. It is, however, a very powerful, persistent, and, alas, pernicious social construct.
[24] One of the revealing yet depressing features of online social commentary has been the appalling prejudice and ignorance to which it has given expression. See, e.g., Julie Hirschfeld Davis, “Obama’s Twitter Debut, @POTUS, Attracts Hate-Filled Posts,” New York Times, 5/22/2015, A19, available at: http://www.nytimes.com/2015/05/22/us/politics/obamas-twitter-debut-potus-attracts-hate-filled-posts.html?emc=edit_th_20150522&nl=todaysheadlines&nlid=42792212. Davis focuses on only one tiny aspect of what is a deep and abiding well of racial hatred ironically shown by the transmutation of Obama’s infrequent attempts to address it into “playing the race card” or “fomenting racial hatred.” In Obama’s case, he has also become a target of anti-Islamic prejudice. After seven years in office, there are still jaw-dropping poll data concerning perceptions of Obama’s nationality and religious affiliation. See Jennifer Agiesta, “Misperceptions Persist About Obama’s Faith, But Aren’t so Widespread,”CNN/Politics, 9/14/2015, available at: http://www.cnn.com/2015/09/13/politics/barack-obama-religion-christian-misperceptions/.
[25] We do not have a simple either/or. Nevertheless, how else than through prejudice does one explain the different outcomes of, say, employment applications, depending on the perceived color/racial identity of applicants? See, e.g., Marianne Bertrand and Sendhill Mullainathan, “Are Emily and Greg More Employable than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination” (NBER Working Paper No. 9873, 2003), available at: http://www.nber.org/papers/w9873; Matthew S. Harrison, “Colorism: The Often Un-discussed ‘-ism’ in America’s Workforce.” The Jury Expert (January, 2010): 67-77. Even the liberal-minded, who see education as a major panacea for America’s social ills, fail to appreciate how – for young African Americans – impoverished are their social opportunities for educational experience compared to their white counterparts. See, e.g., Lindsey Cook, “US Education: Still Separate and Unequal,” US News & World Report, 1/28/2015, available at: http://www.usnews.com/news/blogs/data-mine/2015/01/28/us-education-still-separate-and-unequal; Patricia Cohen, “Racial Wealth Gap Persists Despite Degree, Study Says,” New York Times, 8/17/2015, B1, available at: http://www.nytimes.com/2015/08/17/business/racial-wealth-gap-persists-despite-degree-study-says.html?emc=edit_th_20150817&nl=todaysheadlines&nlid=42792212. For an excellent discussion of submerged racism and prejudice, see Mahzarin R. Banaji and Anthony G. Greenwald, Blindspot: Hidden Biases of Good People (New York: Delacorte Press, 2013). Thanks to Jim Hallmark.
[26] The point holds equally of privilege. A privileged background does not guarantee success, but it is disingenuous of many who succeed to play down or ignore the benefits of their favorable circumstances. The high dudgeon expressed following President Obama’s remark that “you didn’t get there on your own” said more about political ideology than social reality. For background, see Wikipedia Editors, “You Didn’t Build That,” available at: http://en.wikipedia.org/wiki/You_didn’t_build_that.
[27] See, e.g., Bertrand and Mullainathan, “Are Emily and Greg More Employable than Lakisha and Jamal?” (note 24); Devah Pager and Hana Shepherd, “The Sociology of Discrimination: Racial Discrimination in Employment, Housing, Credit, and Consumer Markets,” Annual Review of Sociology 34 (2008): 181–209, available at: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2915460/; also: Raj Chetty and Nathaniel Hendren, The Impacts of Neighborhoods on Intergenerational Mobility: Childhood Exposure Effects and County-Level Estimates, Report, May 2015, available at: http://scholar.harvard.edu/files/hendren/files/nbhds_paper.pdf. Following the killing of Freddie Gray, it has become clear how racial discrimination has been woven into every aspect of the local culture of Baltimore. See note 33, below.
[28] Until the FBI investigation, racist emails enjoyed some protection in the Ferguson Police Department. See John Eligon, “Racist Emails by Ferguson Officials Released,” New York Times, 4/3/2015, A11, available at: http://www.nytimes.com/2015/04/04/us/racist-emails-by-ferguson-officials-released.html. More recently, see Frances Robles, “Racist Police Emails Put Florida Cases in Doubt,” New York Times, 5/15/2015, A10, available at: http://www.nytimes.com/2015/05/16/us/miami-prosecutor-reviews-cases-of-police-officers-who-sent-racist-emails.html. Similar problems have arisen in San Francisco: see Timothy Williams, “Inquiry to Examine Racial Bias in the San Francisco Police,” New York Times, 5/8/2015, A13, available at: http://www.nytimes.com/2015/05/08/us/san-francisco-police-department-racial-bias-investigation.html. We are probably talking about the tip of an iceberg.
[29] See Robb Willer, Christabel L. Rogalin, Bridget Conlon, and Michael T. Wojnowicz, “Overdoing Gender: A Test of the Masculine Overcompensation Thesis,” American Journal of Sociology 118, no. 4 (January 2013): 980-1022.
[30] From the NYPD Statement of Values.
[31] “Letter to Archbishop Mandell Creighton,” (April 5, 1887), available at: http://history.hanover.edu/courses/excerpts/165acton.html.
[32] Craig Haney, Curtis Banks, and Philip Zimbardo, “A Study of Prisoners and Guards in a Simulated Prison,” Naval Research Review 30 (1973): 4-17. See also the associated web site, http://www.prisonexp.org/.
[33] The distinction is made by Martin O’Malley, a former governor of Maryland, whose approach to policing is sometimes thought responsible for Baltimore’s style of policing. See Jim Rutenberg, “Martin O’Malley: ‘We Never Encouraged Aggressive Policing’,” New York Times Magazine, 4/30/2015, available at: http://www.nytimes.com/2015/04/30/magazine/martin-omalley-we-never-encouraged-aggressive-policing.html?_r=0. Nevertheless, Maryland’s racial problems go back much earlier. See Editorial, “How Racism Doomed Baltimore,” New York Times, 5/10/2015, SR10, available at: http://www.nytimes.com/2015/05/10/opinion/sunday/how-racism-doomed-baltimore.html. See also note 26, above.
[34] See, e.g., Seth Stoughton, “Police Shouldn’t Ask if a Shooting Is Justified, But if It’s Avoidable,” New York Times, 4/9/2015, available at: http://www.nytimes.com/roomfordebate/2015/04/09/are-police-too-quick-to-use-force/police-shouldnt-ask-if-a-shooting-is-justified-but-if-its-avoidable; also, Dara Lind, “How Do Police Departments Train Cops How to Use Force?,” Vox.com, 5.6/2015, available at: http://www.vox.com/2014/9/5/6105373/police-allowed-to-force-shoot-taser-training-policy. In suggesting that police are sometimes too willing to use force, I am not denying that they are sometimes provoked by those they are policing. But part of professionalism in policing is being able to resist certain provocations.
[35] I have suggested elsewhere that Eric Garner’s case could have been resolved without the use of force. See “Chokeholds, Eric Garner, and Police Ethics.” The Critique, 8/22/2014, available at: http://www.thecritique.com/articles/chokeholds-eric-garner-and-police-ethics/. I believe the same could also have been said of other cases – say, e.g., of Tamir Rice, John Crawford III, and Sandra Bland. See later.
[36] See, for example, Christy E. Lopez, “Disorderly (mis)Conduct: The Problem with ‘Contempt of Cop’ Arrests,” Issue Brief, American Constitution Society (Washington, DC: 2010), available at: http://www.acslaw.org/sites/default/files/Lopez_Contempt_of_Cop.pdf.
[37] See also II (D) below. As I have argued at length elsewhere, policing is not unique in this. See “The Blue Wall of Silence: An Ethical Analysis,” International Journal of Applied Philosophy 15, no. 1 (Spring, 2001): 1-23.
[38] Report, Investigation of the Ferguson Police Department, US Department of Justice, Civil Rights Division, 3/4/2015, 6-7, available at: http://apps.washingtonpost.com/g/documents/national/department-of-justice-report-on-the-ferguson-mo-police-department/1435/.
[39] As Ferguson is continuing to find out. See John Eligon, “Caught Between Costly Alternatives, Residents Worry About Ferguson’s Fate,” New York Times, 2/14/2016, A13, available at: http://www.nytimes.com/2016/02/14/us/caught-between-costly-alternatives-ferguson-residents-worry-about-its-fate.html; and John Eligon, “Ferguson Approves a Federal Plan to Overhaul Police and Courts,” New York Times, 3/16/2016, at A11, available at: http://mobile.nytimes.com/2016/03/16/us/ferguson-approves-a-federal-plan-to-overhaul-police-and-courts.html.
[40] See Kenneth Bolton, Jr. and Joe R. Feagin, Black in Blue: African-American Police Officers and Racism (New York: Routledge, 2004). See also note 44 below, and text.
[41] For an easily accessible review, see Jeremy Ashkenas and Haeyoun Park, “The Race Gap in America’s Police Departments,” New York Times, 4/11/2015, available at: http://www.nytimes.com/interactive/2014/09/03/us/the-race-gap-in-americas-police-departments.html. I should again make it clear that I see no “magic” in having departmental representation reflecting the community. Nevertheless, I believe that there are cultural and symbolic reasons for a representation that is closer to that in the community. For example, it has been pointed out that in Baltimore (as elsewhere) a significantly larger number of African-American officers than Caucasian officers live in the problem communities they police. They are therefore more likely to be attuned and sensitive to the character and needs of their neighborhoods.
[43] Color discrimination is only one kind – there also tends to be gender and religious discrimination and, until fairly recently, discrimination on the basis of sexual orientation.
[44] Sheryl Gay Stolberg and Richard A. Oppel, Jr., “Suspects in Freddie Gray Case: A Portrait of Baltimore Police in Miniature,” New York Times, 5/10/2015, A25, available at: http://www.nytimes.com/2015/05/10/us/suspects-in-freddie-gray-case-a-portrait-of-baltimore-police-in-miniature.html. It may not be quite correct that all the black officers were charged only as a result of omissions. There remains a question whether Officer Goodson drove the van in a way that contributed to Gray’s injuries. More generally, see Ronald Weitzer and Steven A. Tuch, Race and Policing in America: Conflict and Reform, (NY: Cambridge University Press, 2006). See note 40 above.
[45] See, e.g., R.A. Miech, L.D. Johnston, P.M. O’Malley, J.G. Bachman, & J.E. Schulenberg, Monitoring the Future: National Survey Results on Drug Use, 1975–2014: Volume I, Secondary School Students (Ann Arbor: Institute for Social Research, The University of Michigan, 2015); L.D. Johnston, P.M. O’Malley, J.G. Bachman, J.E. Schulenberg, & R.A. Miech, Monitoring the Future: National Survey Results on Drug Use, 1975–2013: Volume 2, College Students and Adults Ages 19–55 (Ann Arbor: Institute for Social Research, The University of Michigan, 2014), available at http://monitoringthefuture.org/pubs.html#monographs. We should not forget the large number of people in prison because of drug-associated offences. The imprisonment binge that characterizes the US not only disproportionately affects black males but also decimates black communities. At long last, some – albeit too little – consideration is being given to alternative ways of addressing drug use. See Inimai Chettiar and Michael Waldman (eds), Solutions: American Leaders Speak Out on Criminal Justice, Brennan Center for Justice, NYU School of Law, 2015, available at: https://www.brennancenter.org/sites/default/files/analysis/Solutions_American_Leaders_Speak_Out_On_Criminal_Justice.pdf.
[46] See, e.g., Arthur Niederhoffer, Behind the Shield: The Police in Urban Society (New York: Doubleday, 1967); Robert M. Regoli, “An Empirical Assessment of Niederhoffer’s Police Cynicism Scale,” Journal of Criminal Justice 4 (1976): 231-241; Joel Caplan, “Police Cynicism: Police Survival Tool?,” Police Journal 76 (2003): 304-13. I have dealt at greater length with the moral costs of police cynicism in The Ethics of Policing (Cambridge, UK: Cambridge University Press, 1996), ch. 4. The issue of police cynicism resurfaced again in the context of the current policing unrest in FBI Director James Comey’s 2/12/2015 moving public address, available at: https://www.fbi.gov/news/speeches/hard-truths-law-enforcement-and-race, where he spoke of “the different flavors of cynicism.” Somewhat unfairly, some of Comey’s critics accused him of blame-shifting rather than blame-expanding.
[47] See, esp., Douglas Husak, Overcriminalization: The Limits of the Criminal Law (New York: Oxford University Press, 2007).
[48] I say this not to distinguish police – this holds for many who occupy social roles. Given, however, the powers to which police have access, the issue is important.
[49] For a more detailed discussion of the sources of police authority, see The Ethics of Policing, ch. 1.
[50] This is to be distinguished from another “us/them” division that affects policing and often reinforces the cynicism of operational officers – that between street cops and supervisory cops. See, esp., Elizabeth Reuss-Ianni, Two Cultures of Policing: Street Cops and Management Cops (New Brunswick, NJ: Transaction Publishers, 1983).
[51] Even violators do not lose their rights, though their rights may be overridden by the rights of others.
[52] See John Kleinig, “Punishment and the Ends of Policing,” in Liberal Criminal Theory: Essays for Andreas von Hirsch, ed. A.P. Simester and A. Du Bois-Pedain (Oxford: Hart, 2014), 283-303.
[53] I don’t wish to argue that the existing legal constraints adequately mirror ethical ones. However, they take us some of the way in that direction, and may sometimes reflect the best that we can do as a matter of social policy.
[54] See John Eligon, “Running From the Police Is the Norm, Some in Baltimore Say,” New York Times, 5/11/2015, A10, available at: http://www.nytimes.com/2015/05/11/us/running-from-police-is-the-norm-some-in-baltimore-say.html?_r=0. There is some Supreme Court support (5-4) for stopping and searching a person if he runs from police in a high-crime area, Illinois v. Wardlow, 528 U.S. 119 (2000). I find it less than clear whether the “eye contact” with Freddie Gray constituted reasonable suspicion that provoked him to run. The circumstances in Wardlaw gave much more plausible reasons for suspicion than in Gray’s case.
[55] See Geoffrey P. Alpert, Dennis Jay Kenney, and Roger Dunham, “Police Pursuits and the Use of Force: Recognizing and Managing ‘the Pucker Factor’,” Justice Quarterly 14, no. 2 (1997): 371-385. That of course was an element of the Rodney King beating and the Walter Scott shooting.
[56] “Disrespect” is an umbrella term for a number of behaviors (sometimes including videotaping) – though it almost always involves a perceived questioning of police authority. It is also a two-way street, giving rise to a difficult question about the sources of disrespect: are police disrespected because they themselves are disrespectful (of the personhood or dignity of others), or vice versa? See, e.g., Warren Friedman, Arthur J. Lurigio, Richard Greenleaf, and Stephanie Albertson, “Encounters Between Police Officers and Youths: The Social Costs of Disrespect,” Journal of Crime and Justice 27, no. 2 (2004): 1-25; Lopez, “Disorderly (mis)Conduct,” (note 36 above); Michael Wilson and Solomon Moore, “As Officers Face Heated Words, Their Tactics Vary,” New York Times, 6/25/2009, available at: http://www.nytimes.com/2009/07/25/us/25cop.html?hpw. Some part of the escalation of force in the stopping of Sandra Bland seems attributable to a deficiency of deference. See, for an overview of the case, Mitch Smith, “Faulting Trooper and County, Mother of Sandra Bland Files Wrongful-Death Lawsuit,” New York Times, 8/5/2015, A9, available at: http://www.nytimes.com/2015/08/05/us/sandra-bland-family-lawsuit.html. Also see note 125 and text below.
[57] Without wanting to diminish the potential for danger in police work, I think that an emphasis on its “dangerousness” sometimes becomes a cloak for some form of excess. Women police officers are as capable as male police officers, but generally use less force, and even many male officers complete their careers without having to use their service weapons. See Amie M. Schuck and Cara Rabe-Hemp, “Women Police: The Use of Force by and Against Female Officers,” Women & Criminal Justice 16, no. 4 (2005): 91-117; Joe Sexton, “Don’t Shoot; The Culture of Cops and Guns,” New York Times, 1/11/1998, available at: http://www.nytimes.com/1998/01/11/weekinreview/ideas-trends-don-t-shoot-the-culture-of-cops-and-guns.html. Later I consider attempts to make police work appear even more uncertain and dangerous than it is. See note 93 below, and text.
[58] I have dealt with these issues at much greater length in “The Blue Wall of Silence” (note 37 above), and have applied some of that material to the aftermath of the Ferguson shooting in “Police Loyalty: Understanding The Post-Shooting Support for Officer Darren Wilson,” The Critique, 3/17/2015, available at: http://www.thecritique.com/articles/police-loyalty-understanding-the-post-shooting-support-for-officer-darren-wilson/. Readers will also have noted that Officer Ray Tensing’s story about being “dragged” by Sam DuBose’s car was “backed up” by the two officers who were with him, despite later body-camera evidence to the contrary. See Oliver Laughland and Ryan Felton, “Two Other Officers at Samuel DuBose Shooting Scene Will Not Be Charged,” The Guardian, 7/31/2015, available at: http://www.theguardian.com/us-news/2015/jul/31/samuel-dubose-officers-corrorborated-false-claim.
[59] See, e.g., Adriana Nicole Cerami, The Mafia’s System of Silence in Communication, Film and Literature: Perversions of Society and Transgressions of Omerta, MA dissertation, University of North Carolina (Chapel Hill: UNC, 2009) available via: http://gradworks.umi.com/14/63/1463858.html.
[60] The classic case is that of Frank Serpico. See Peter Maas, Serpico: The Cop Who Defied the System (NY: Viking Press, 1973).
[61] See, e.g., Noel Weyrich, “Up Against the Blue Wall,” Philadelphia City Paper, 12/16–23/1999, available at: http://citypaper.net/articles/121699/news.cb.blue.shtml; Elsa Walsh, “Miami Blue: Testing of a Top Cop,” New Yorker 3/5/2007, available at: http://www.newyorker.com/magazine/2007/03/05/miami-blue.
[62] See Vincent Murano, with William Hoffer, Cop Hunter (New York: Simon & Schuster, 1990).
[63] Some large police unions retain lawyers (often with policing experience) who specialize in defending police and correctional personnel. As well, some have set themselves up as “experts” in police shooting and excessive force cases. See, especially, the work of William J. Lewinski, of the Force Science Institute, Ltd, http://www.forcescience.org/whoweare.html, discussed later (see note 93 below, and text).
[64] Grand Jury Transcripts, State of Missouri v. Darren Wilson, September 16, 2014, Vol V, 52, 58.
[65] Grand Jury Transcripts, State of Missouri v. Darren Wilson September 10, Vol. 4, 2014, 45 and September 16, Vol 5, 101. Many police unions have negotiated agreements with their administrations that “protect” their members against potentially incriminating interviews. For an accessible account of the NYPD’s agreement, see Edward D. Reuss, “48 Hour Rule” (2012), available at: http://www.nycop.com/Mar_01/48_Hour_Rule/body_48_hour_rule.html.
[66] Grand Jury Transcripts, State of Missouri v. Darren Wilson, September 10, 2014, Vol 4, 45, and September 16, Vol. 5, 101.
[67] Ibid., September 16, 2014, Vol 5, 101, and 99-100. If Michael Brown disrespected Wilson, there was almost no way that Wilson was going to let it go. See above, note 56.
[68] Ibid. Vol. 5, September 16, 2014, 104-107.
[69] Some of my information comes from private sources. But see also Rocco Parascandola and Oren Yaniv, “EXCLUSIVE: Rookie NYPD Officer Who Shot Akai Gurley in Brooklyn Stairwell Was Texting Union Rep as Victim Lay Dying,” New York Daily News, 5/12/2014, available at: http://www.nydailynews.com/new-york/brooklyn/exclusive-texted-union-rep-akai-gurley-lay-dying-article-1.2034219; J. David Goodman and Vivian Yee, “Officer Charged in Akai Gurley Case Debated Reporting Gunshot, Officials Say,” New York Times, 2/15/2015, A22, available at: http://www.nytimes.com/2015/02/12/nyregion/akai-gurley-shooting-death-arraignment.html. Although report of the phone call was challenged, he was subsequently found guilty of manslaughter. See note 112 and text below. Officer Peter Liang was sentenced to five year of probation and 800 hours of community service for the accidental killing of Akai Gurley. See Alan Feuer, “Ex-New York Officer Gets 5 Years of Probation in Fatal Brooklyn Shooting”, New York Times, 4/19/2016, available at: http://www.nytimes.com/2016/04/20/nyregion/peter-liang-ex-new-york-police-officer-sentenced-akai-gurley-shooting-death-brooklyn.html?_r=0.
[70] Although there is some gamesmanship about such issues, I do not wish to suggest that it occurs on only one side. Decisions about these matters may, however, be very important.
[71] See, e.g., Bennett L. Gershman, Prosecutorial Misconduct, 2nd ed. (St. Paul, MN: Clark Boardman Callaghan, 2014).
[72] This was also true of the Garner grand jury. I don’t want to argue that it is wrong for a grand jury to hear testimony from the person whose fate is being considered but enabling a carefully-crafted story to be told (as was the case in Ferguson), provides a prosecutor with another strategic factor that is open to manipulation.
[73] The decision may have been influenced by political considerations – in particular the desire to bring some calm and normality to a Baltimore that was under curfew and patrolled by National Guard troops. In yet another irony, should the police critics of her decision turn out to be correct, then the beneficiaries are likely to be the officers involved.
[74] See, e.g., John V. Jacobi, “Prosecuting Police Misconduct,” Wisconsin Law Review (2000): 789-853; Erwin Chemerinsky, “The Role of Prosecutors in Dealing with Police Abuse: The Lessons of Los Angeles,” Virginia Journal of Social Policy & the Law 8 (Winter 2001): 305-328.
[75] This, at least, is the dominant social contractualist position. The institutional police role is seen as a rational response to a social situation (a “state of nature”) in which our rights are insecure, and we cede to police more adequate protection of these rights than we could manage on our own. For a classic defense, see John Locke, Second Treatise Of Civil Government (1689), ch. 9. It is that same contractualist position that, in some communities, has been appealed to to justify self-policing where the regular police service has become almost as feared as local criminal activity. See Bill Lawson, “Crime, Minorities, and the Social Contract,” Criminal Justice Ethics 9, no. 2 (Summer/Fall, 1990): 16-24.
[76] Tennessee v. Garner, 471 U.S. 1 (1985). In 1989, the Supreme Court extended the “reasonableness” requirement of Garner to cover all police uses of force: Graham v. Connor, 490 U.S. 386 (1989).
[77] All too common in situations involving the mentally disturbed. See, recently, Jeremy Gorner and Annie Sweeney, “Quintonio LeGrier Called 911 Three Times Before a Chicago Cop Shot Him,” Chicago Tribune, 1/26/2016, available at: http://www.chicagotribune.com/news/local/breaking/ct-quintonio-legrier-bettie-jones-911-calls-met-20160125-story.html.
[79] A Washington Post article draws attention to the large number of situations in which what probably required no use of force was permitted or enabled to escalate into one in which serious – even deadly – force was used. See Sandhya Somashekhar, Wesley Lowery, Keith L. Alexander, Kimberly Kindy, and Julie Tate, “Black and Unarmed: A Year After Michael Brown’s Fatal Shooting, Unarmed Black Men are Seven Times More Likely Than Whites to Die by Police Gunfire,” Washington Post, 8/8/2015, available at: http://www.washingtonpost.com/sf/national/2015/08/08/black-and-unarmed/. Thanks to Guillaume Attia.
[80] I have provided more extensive treatments of the police use of force in “Legitimate and Illegitimate Uses of Police Force,” Criminal Justice Ethics 33, no. 2 (2014): 83–103, and earlier in The Ethics of Policing, ch. 6. On handcuffs as a use of force, see François Quintard-Morénas, ”The Widespread Handcuffing of Arrestees in the United States,” http://works.bepress.com/cgi/viewcontent.cgi?article=1003&context=francois_quintard_morenas.
[81] See, e.g., William Terrill and Eugene A Paoline III, “Examining Less Lethal Force Policy and the Force Continuum: Results from a National Use-of-Force Study,” Police Quarterly 16 (March 2013): 38-65.
[82] I have discussed the ethics of taser use in “Ethical Constraints on Taser Use by Police.” Policing: A Journal of Theory and Practice I, no. 3 (2007): 284-292. There was no good reason to threaten Sandra Bland with a taser. See note 125 and text, below.
[83] See, e.g., Dana Treen, “State Rules Taser Death Homicide,” Florida Times-Union, 2/13/2007, available at: http://jacksonville.com/tu-online/stories/021307/met_7960731.shtml; Dan Christensen, “Coconut Creek Police Taser Shooting a Homicide; Death by Electrocution, Lawyer Says,” Florida Bulldog, 5/14/2015, available at: http://www.floridabulldog.org/2015/05/coconut-creek-police-taser-shooting-a-homicide-death-by-electrocution-lawyer-says/; Kareem Fahim and Christine Hauser, “Taser Use in Man’s Death Broke Rules, Police Say,” New York Times, 9/26/2008, B1, available at: http://www.nytimes.com/2008/09/26/nyregion/26taser.html?_r=0.
[84] See my earlier discussion of this in “Chokeholds, Eric Garner, and Police Ethics.” The Critique, August 22, 2014: http://www.thecritique.com/articles/chokeholds-eric-garner-and-police-ethics/. The failure to secure an indictment in this case, despite the videotape evidence, may be due to a number of factors, including the fact that Garner’s repeated “I can’t breathe” may have begun after he was released from the neck hold but while an officer was on his back, compressing his chest. By the time they rolled him on his side, it may have been too late. Moreover, even though chokeholds are contrary to departmental regulations, they are not illegal. Nevertheless, Garner remains a problematic case. It has been plausibly suggested that Garner died from positional asphyxia rather than the chokehold. See, Candace McCoy, interview on PBS, 12/4/2014: http://www.pbs.org/newshour/bb/will-outrage-garner-ferguson-grand-jury-verdicts-trigger-systemic-changes/. On positional asphyxia, see USDOJ, “Positional Asphyxia – Sudden Death,” National Law Enforcement Technology Center, June 1995, available at: https://www.ncjrs.gov/pdffiles/posasph.pdf. In 2004. The NYPD has issued its own document (2004) on positional asphyxia, though it focuses mainly on the risks associated with hogtying (which is prohibited). Thanks to Candace McCoy.
[85] What are sometimes referred to as Lateral Vascular Neck Restraints® (though frequently included in the scope of chokeholds). See Charles ‘Chip’ Huth, “Why the LVNR Isn’t a ‘Choke Hold’,” PoliceOne.com, 3/19/2013, available at: http://www.policeone.com/police-trainers/articles/6157483-Why-the-LVNR-isnt-a-choke-hold/; Dan Marcou, “4 Reasons Every Cop Should Be Trained in Lateral Vascular Neck Restraint,” PoliceOne.com, available at: http://www.policeone.com/defensive-tactics/articles/8127932-4-reasons-every-cop-should-be-trained-in-Lateral-Vascular-Neck-Restraint/.
[86] See Gary Cordner, “The Problem of People with Mental Illness,” Center for Problem Oriented Policing, Guide no. 40 (2006), available at: http://www.popcenter.org/problems/mental_illness/; Wesley Lowery, Kimberly Kindy, Keith L. Alexander, and Steven Rich, “Distraught People, Deadly Results,” Washington Post, 6/30/2015, available at: http://www.washingtonpost.com/sf/investigative/2015/06/30/distraught-people-deadly-results/. Many overseas police departments have a much better record in handling mentally disturbed individuals. See, e.g., Ben Cohen, “This is How UK Police Stop Someone with a Knife,” The Daily Banter, 8/21/2014, available at: http://thedailybanter.com/2014/08/uk-police-stop-someone-knife/; Kathianne Boniello, “Swedish Cops on Vacation Break up Subway Fight,” New York Post, 4/22/2015, available at: http://nypost.com/2015/04/22/swedish-cops-on-vacation-break-up-subway-fight/.
[87] See Jon Swaine, “Walter Scott Shooting: Officer Laughs about Adrenaline Rush in Recording,” The Guardian, 4/13/2015, available at: http://www.theguardian.com/us-news/2015/apr/12/walter-scott-shooting-officer-michael-slager-audio-recording.
[88] See Wikipedia Editors, “Shooting of Amadou Diallo,” available at: http://en.wikipedia.org/wiki/Shooting_of_Amadou_Diallo.
[89] Ida Lieszkovszky, “Cleveland Police Officer Michael Brelo Not Guilty,” Cleveland.com (May 23/24, 2015), available at: http://www.cleveland.com/court-justice/index.ssf/2015/05/brelo_verdict.html.
[90] “Walmart Shooting: Surveillance Video Captures Crawford Shooting,” available at: http://www.whio.com/videos/news/walmart-shooting-surveillance-video-captures/vCtB6Z/.
[92] Professionalism, in policing as elsewhere, involves a commitment to the standards inherent in a particular role and a determination to fulfill them to the best of one’s abilities. By itself, however, professionalism does not sanction the role or the standards that it may have come to encompass. See Arthur Izak Applbaum, “Professional Detachment: The Executioner of Paris,” Harvard Law Review 109, no. 2 (December 1995): 458-486.
[93] See earlier, note 63. For a review of Lewinski’s, influence, see Matt Apuzzo, “Shoot First, and He’ll Answer Questions,” New York Times, 8/2/2015, A1, available at: http://www.nytimes.com/2015/08/02/us/training-officers-to-shoot-first-and-he-will-answer-questions-later.html?_r=0. Other reports on Lewinski include Brett Sanders, “’Angel of Death’ Psychologist Getting Rich Justifying Killer Cops,” PINAC, 8/6/2015, available at: http://photographyisnotacrime.com/2015/08/angel-of-death-psychologist-getting-rich-justifying-killer-cops/#!; Nico Savidge, “Expert in Deadly Force Training Criticized for Record on Police Shootings,” Wisconsin State Journal, 7/31/2014, available at: http://host.madison.com/news/local/crime_and_courts/expert-in-deadly-force-training-criticized-for-record-on-police/article_20a0f770-c507-5312-90b4-dc5d291a377b.html#ixzz3iGhtb8ZZ; and Curt Petrovich, “B.C. Police Watchdog Bars Use of Psychologist,” CBC News/British Columbia, 8/12/2012, available at: http://www.cbc.ca/news/canada/british-columbia/b-c-police-watchdog-bars-use-of-psychologist-1.1151733. Lewinski’s research is not greatly discussed in the professional social science literature because, despite its pretensions, it does not appear in that literature (for a listing, see: http://www.forcescience.org/articles.html). For a professional review, see the court document, 133-11, written by Lisa Fournier, for Case 3:08-cv-00950-MO, 6/28/2012, available at: https://s3.amazonaws.com/pacer-documents/D.%20Or.%2008-cv-00950%20dckt%20000133_011%20filed%202012-06-28.pdf.
[94] See, e.g., Becky L. Tatum, “Deconstructing the Association of Race and Crime: The Salience of Skin Color,” in The System in Black and White: Exploring the Connections Between Race, Crime, and Justice, ed. Michael W. Markowitz and Delores D. Jones-Brown (Westport, CT: Praeger/Greenwood Press, 2001), ch. 3; Joel H. Garner, Christopher D. Maxwell, and Cedrick G. Heraux, “Characteristics Associated with the Prevalence and Severity of Force Used by the Police,” Justice Quarterly 19, no. 4 (2002): 705-746; Jennifer L. Eberhardt, Phillip A. Goff, Valerie J. Purdie, and Paul G. Davies, “Seeing Black: Race, Crime, and Visual Processing,” Journal of Personality and Social Psychology 87, no. 6 (2004): 876-893; Center for Constitutional Rights. Racial Disparity in NYPD Stops-and-Frisks (NY: Center for Constitutional Rights, 2009), available at: www.CCRJustice.org; C.R. Jones and R. H. Fazio, “Person Categorization and Automatic Racial Stereotyping Effects on Weapon Identification,” Personality and Social Psychology Bulletin 36, no. 8 (2010): 1073-1085; doi:10.1177/0146167210375817; Vicki M. Mays, Denise Johnson, Courtney N. Coles, Denise Gellene, and Susan D. Cochran, “Using the Science of Psychology to Target Perpetrators of Racism and Race-Based Discrimination For Intervention Efforts: Preventing Another Trayvon Martin Tragedy,” Journal of Social Action in Counseling and Psychology 5, no. 1 (March 2013): 11-36, available at: http://www.psysr.org/jsacp/Mays-et-al-v5n1-13_11-36.pdf.
[95] See Andrew Knapp, “Attorney: North Charleston Police Officer Felt Threatened Before Fatal Shooting,” Post and Courier, 4/6/2015, available at: http://www.postandcourier.com/article/20150406/PC16/150409558/1177/north-charleston-police-say-officer-who-fatally-shot-man-pulled-him-over-because-of-brake-light.
[96] Taking on a role requires not only skills but also an appropriate temperament. In a number of recent cases, it turns out that officers who have allegedly used their weapons inappropriately have been released by previous departments for lack of professionalism.
[97] Even if we accept that people having a certain age and skin color are more likely to commit a violent crime than others, this statistical claim cannot be applied to specific cases.
[98] Unfortunately, the point of Lewinski’s work is to exploit that scenario with carefully staged videos, in order to convince a jury.
[99] Most officers who die in the line of duty die in vehicle accidents. See Officer Down Memorial Page, available at: https://www.odmp.org/search/year. See also the web site, Honoring the Fallen, at: http://www.officer.com/features/honoring-the-fallen.
[100] In those states that promote/permit open or concealed carry, reactions differ considerably where there is racial difference. People of color are much less likely to carry weapons openly, and more likely to be arrested.
[101] George Fachner and Steven Carter, Collaborative Reform Initiative: An Assessment of Deadly Force in the Philadelphia Police Department, available at: http://ric-zai-inc.com/Publications/cops-w0753-pub.pdf. See the comments on this report in Charles M. Blow, “Officers’ Race Matters Less Than You Think,” New York Times, 3/26/2015, available at: http://www.nytimes.com/2015/03/26/opinion/charles-blow-officer-race-matters-less-than-you-think.html.
[102] David Burnham, “Graft Paid to Police Here Said to Run into Millions,” New York Times, 4/25/1970, 1, available at: http://query.nytimes.com/mem/archive/pdf?res=9E02E5DE1E31E236A05756C2A9629C946190D6CF. Also, David Burnham, The Role of the Media in Controlling Corruption (New York: John Jay Press, 1976).
[103] See “Watergate: The Scandal That Brought Down Richard Nixon,” at: http://watergate.info/.
[104] See my earlier discussion, “Chokeholds, Eric Garner, and Police Ethics.” The Critique, August 22, 2014: http://www.thecritique.com/articles/chokeholds-eric-garner-and-police-ethics/. For a somewhat different interpretation, see Al Baker, J. David Goodman, and Benjamin Mueller, “Beyond the Chokehold: The Path to Eric Garner’s Death,” New York Times, 6/14/2015, A1, available at: http://www.nytimes.com/2015/06/14/nyregion/eric-garner-police-chokehold-staten-island.html?_r=0.
[105] In any case, his videotaped gesture after the Garner became unconscious reflected an attitude of impunity. See: http://www.dailymail.co.uk/news/article-2700197/Cause-death-not-immediately-clear-350lb-father-died-chokehold-cops-grieving-son-demands-officer-responsible-arrested.html. Although other legal processes remain in the works, New York City has reached a $5.9 million settlement with the Garner family.
[106] The closest we have to an official account – apart from the grand jury proceedings – is the Department Of Justice Report Regarding The Criminal Investigation Into The Shooting Death Of Michael Brown By Ferguson, Missouri Police Officer Darren Wilson, 3/4/2015, available at: http://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/doj_report_on_shooting_of_michael_brown_1.pdf.
[107] See note 66 above.
[108] Police cars in Ferguson are now fitted with dashboard cameras, and officers wear body cameras.
[109] See both the Department of Justice Investigation of the Ferguson Police Department, 3/4/2025, available at: http://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf, and the more recent Missouri Governor’s Commission, Forward Through Ferguson: A Path Toward Racial Equity, available at http://forwardthroughferguson.org/wp-content/uploads/2015/09/092115_FergusonCommissionReport.pdf. A good deal of supporting documentation can be found on the main web site: http://forwardthroughferguson.org/. Ferguson Police Department has since then appointed an African-American police chief set on improving the culture, see Francis Robles, “New Police Chief Seeks to Overturn Ferguson’s Legacy of Turmoil”, New York Times, (5/08/16), available at: http://www.nytimes.com/2016/05/09/us/new-police-chief-seeks-to-overturn-fergusons-legacy-of-turmoil.html?_r=0
[110] There is a possibility that evidence not given to the grand jury could surface.
[111] Available at: http://www.fergusoncity.com/DocumentCenter/View/1920.
[112] See note 69 above, and text.
[113] Claims by the Asian community that, because of his ethnicity, Liang was scapegoated, need to be set beside the fact that the presiding judge was Asian – though, given it was a jury trial, it might otherwise have made some sense to wonder whether, because of his ethnicity, Liang was seen as more dispensable.
[114] See, Cuyahoga County, Office of the Prosecutor, “Investigation into the Death of Tamir Rice,” available via: http://prosecutor.cuyahogacounty.us/en-us/Investigation-Into-Death-of-Tamir-Rice.aspx.
[115] No doubt the assumptions that the officers brought with them to the scene – they were not told that Rice was a juvenile or that the 911-caller thought that the weapon may have been a toy – could have heightened their apprehensions. That said, the shooter – Tim Loehmann – had left a previous job as a result of judgments about his capacity for exercising professional discretion, a fact that the Cleveland Department had failed to check. The officers also failed to provide medical assistance adding to the perception that they lacked professionalism. Over a year later, Loehmann and his partner remain on administrative leave. Since then, though not as a result of the Rice shooting, the Cleveland Police Department has signed a consent decree with the US Department of Justice that tightens its use of force policies and oversight. See “CLE Consent Decree,” available at: http://cleconsentdecree.com/. Cleveland PD had a previously recognized problem with the use of force – particularly in the case of Timothy Russell and Malissa Williams, allegedly shot by Officer Michael Brelo. See Mitch Smith and Ashley Southall, “Cleveland Police Officer Acquitted of Manslaughter in 2012 Deaths,” New York Times, 5/23/2015, available at: http://www.nytimes.com/2015/05/24/us/michael-brelo-cleveland-police-officer-acquitted-of-manslaughter-in-2012-deaths.html. Nevertheless, the Cleveland PD subsequently fired Brelo and five other officers over the incident. See Mitch Smith, “Six Cleveland Officers Fired for Their Role in Killing of Couple,” New York Times, 1/27/2016, A12, available at: http://www.nytimes.com/2016/01/27/us/six-cleveland-officers-fired-for-role-in-2012-fatal-shooting-of-couple.html.
[116] Access to the reports is available via Mitch Smith, “Two Reviews of Tamir Rice Shooting in Cleveland Are Seen as Shielding Police,” New York Times, 10/12/2015, A14, available at: http://www.nytimes.com/2015/10/12/us/tamir-rice-outside-reviews-cleveland-police-charges.html; and Jacah Lee, “Outrage Is Growing Over the Tamir Rice Investigation,” Mother Jones, 10/28/2015, available at: http://www.motherjones.com/politics/2015/10/tamir-rice-leaked-reports-grand-jury.
[117] See the video at: https://www.youtube.com/watch?v=0XYNOTUWfHE.
[118] Thomas Gnau, “Officer: ‘I Fired Two Shots Center-Mass at (John Crawford III)’,” Dayton Daily News, 6/1/2015, available at: http://www.daytondailynews.com/news/news/local/officers-describe-moments-before-john-crawford-sho/nhhft/.
[119] See John Swaine, “Ohio Walmart Video Reveals Moments Before Officer Killed John Crawford,” The Guardian, 9/25/2015, available at: www.theguardian.com/world/2014/sep/24/surveillance-video-walmart-shooting-john-crawford-police. For the retraction, see the YouTube interview at: https://www.youtube.com/watch?v=Id8-U0gxr5w&ebc=ANyPxKoZA6hbkF6pT9cWkTvE-261bphwhPmq2YHSHiWChRhcV7-BqBB-1PX1ZH0WOyvxtH0QFcMIrn8eFVGvL4UZrYRSM8LPmQ.
[120] For some of the first trial testimony, see Sheryl Gay Stolberg and Jess Bidgood, “Starkly Different Accounts of Freddie Gray’s Death as Trial of Officer Begin,” New York Times, 12/3/2015, A20, available at: http://www.nytimes.com/2015/12/03/us/freddie-gray-trial-baltimore.html; and Sheryl Gay Stolberg and Jess Bidgood, “Suffocation Described as Likely Cause of Death in Baltimore Case,” New York Times, 12/5/2015, A12, available at: http://www.nytimes.com/2015/12/05/us/baltimore-police-trial-freddie-gray.html?_r=0.
[121] Subsequently, a retaliatory absence of police was followed by a sharp increase in the murder rate. What West Baltimore needed was not less policing but better policing. See Richard A. Oppel, Jr., “West Baltimore’s Police Presence Drops, and Murders Soar,” New York Times, 6/12/2015, available at: http://www.nytimes.com/2015/06/13/us/after-freddie-gray-death-west-baltimores-police-presence-drops-and-murders-soar.html. The alternative may be forms of self-help that exacerbate rather than improve the crime problem. This is well illustrated in Alice Goffman’s ethnographic study of a section of Philadelphia, in which poorly deployed policing leads certain community members to engage in forms of self-help policing that aggravate the problems of their community. See Alice Goffman, On the Run: Fugitive Life in an American City (Chicago: University of Chicago Press, 2014).
[122] At this point, Officer William Porter is scheduled to be retried after the trials of the other officers.
[123] To those who righteously point out that she violated a traffic law, I simply say: You never did and do?
[124] Most of the details can be accessed via David Montgomery, “New Details Released in Sandra Bland’s Death in Texas Jail,” The New York Times, 7/20/2015, A14, available at: http://www.nytimes.com/2015/07/21/us/new-details-released-in-sandra-blands-death-in-texas-jail.html; Tom Dart, “The Texas County Where Sandra Bland Died: There’s ‘Racism from Cradle to Grave’,” The Guardian, 7/16/2015, available at: http://www.theguardian.com/us-news/2015/jul/17/sandra-bland-alleged-suicide-waller-county-texas-racism; Associated Press, Dallas, “Officer in Sandra Bland Arrest Warned of ‘Unprofessional Conduct’ in 2014,” The Guardian, 8/1/2015, available at: http://www.theguardian.com/us-news/2015/aug/01/texas-state-trooper-sandra-bland-arrest-warning-2014. Sandra Bland’s family have commenced wrongful death proceedings.
[125] See, further, Dana Ford, “University Cop Indicted for Murder in Shooting of Motorist Samuel DuBose,” CNN, 7/30/2015, available at: http://www.cnn.com/2015/07/29/us/ohio-sam-dubose-tensing-indictment/index.html.
[126] There were in fact numerous videos, including one at a nearby Burger King, but there was evidence that they had been tampered with. For a summary of the video situation and references, see, Wikipedia Editors, “Shooting of Laquan McDonald,” Wikipedia, available at: https://en.wikipedia.org/wiki/Shooting_of_Laquan_McDonald. Several other police cruisers were present at the shooting, but the 400 pages of documents associated with the initial police report led to the conclusion that it was a “justifiable homicide.” The blue wall of silence is strongly in evidence. See Sophia Tareen, “Chicago Cops Versions of Laquan McDonald Killing at Odds with Video,” Herald News, 12/5/2015, available at: http://www.theherald-news.com/2015/12/05/chicago-cops-versions-of-laquan-mcdonald-killing-at-odds-with-video/aneg9zn/?page=1; A Chicago Task Force report initiated by the embattled mayor of the city, and released in mid-April 2016 revealed that systematic racism plagued The Chicago Police Department ; See Monica Davey & Mitch Smith, “Chicago Police Dept. Plagued by Systematic Racism, Task Force, New York Times, 04/13/16, available at: http://www.nytimes.com/2016/04/14/us/chicago-police-dept-plagued-by-systemic-racism-task-force-finds.html?emc=eta1
[127] For some discussion, see The Ethics of Policing, ch. 13.
[128] Without wanting to cast aspersions on “merit” – indeed, I support its professional importance – there is no doubt that the contested criteria and tests for merit have reflected social biases.
[129] See B. Keith Payne, Yujiro Shimizu, and Larry L. Jacoby, “Mental Control and Visual Illusions: Toward Explaining Race-biased Weapon Misidentifications,” Journal of Experimental Social Psychology 41 (2005): 36-47.
[130] The FBI Report on the Ferguson Police Department is illustrative of a number of these rhetorical questions.
[131] IACP, 1991. See John Kleinig, Yurong Zhang (eds), Professional Law Enforcement Codes: A Documentary Collection (Westport, CT Greenwood Press, 1993), 91-92. The Code has since been replaced by an Oath of Honor.
[132] For more detailed discussion of this, see The Ethics of Policing, ch. 11.
[133] Barak Ariel, William A. Farrar, and Alex Sutherland, “The Effect of Police Body-Worn Cameras on Use of Force and Citizens’ Complaints Against the Police: A Randomized Controlled Trial,” Journal of Quantitative Criminology, on-line, 11/19/2014, DOI: 10.10007/s10940-014-9236-3; Rory Carroll, “California Police Use of Body Cameras Cuts Violence and Complaints,” The Guardian, 11/4/2013, available at: http://www.theguardian.com/world/2013/nov/04/california-police-body-cameras-cuts-violence-complaints-rialto; Tierney Sneed, “Who Uses Police Body Cameras and What Happens When They Do?,” US News and World Report, 12/2/2014, available at: http://www.usnews.com/news/blogs/data-mine/2014/12/02/who-uses-police-body-cameras-and-what-happens-when-they-do. The cameras are also being introduced in the UK and elsewhere. A next step will probably involve sound recording, for had the initial encounter between Darren Wilson and Michael Brown been merely video-recorded, it would not have differentiated the two different accounts of that exchange that were subsequently provided. As part of their accountability, officers should be held personally responsible for failing to have their cameras on, and departments should be required to release the videos. The politics of releasing/not releasing police videos has been well illustrated by recent events in Chicago. Contrary to what is sometimes implied, making the tapes available for public scrutiny and discussion is not going to alter them. Nevertheless, this does not eliminate the need for interpretation. See the excellent discussion in Timothy Williams, James Thomas, Samuel Jacoby, and Damien Cave, “Police Body Cameras: What Do You See?” New York Times, 4/1/2016, available at: http://www.nytimes.com/interactive/2016/04/01/us/police-bodycam-video.html?emc=edit_th_20160402&nl=todaysheadlines&nlid=42792212.http://www.nytimes.com/interactive/2016/04/01/us/police-bodycam-video.html?emc=edit_th_20160402&nl=todaysheadlines&nlid=42792212.
[134] See, e.g., James C. McKinley Jr and Al Baker, “Grand Jury System, With Exceptions, Favors the Police in Fatalities,” New York Times, 12/8/2014, A1, available at: http://www.nytimes.com/2014/12/08/nyregion/grand-juries-seldom-charge-police-officers-in-fatal-actions.html;
[135] Editorial, “Voters Tell Prosecutors, Black Lives Matter,” New York Times, 3/18/2016, available at: http://www.nytimes.com/2016/03/18/opinion/voters-tell-prosecutors-black-lives-matter.html?emc=edit_th_20160318&nl=todaysheadlines&nlid=42792212.
[136] See Chase Madar, “Why It’s Impossible to Indict a Cop,” The Nation, 11/24/2014, available at: http://www.thenation.com/article/190937/why-its-impossible-indict-cop.
[137] http://www.americanrhetoric.com/speeches/mlkihaveadream.htm.
[138] I am particularly grateful for the assistance of Guillaume Attia, Kylie Bourne, Shlomo Einstein, Robert Fox, James Delaney Hallmark, Delores Jones-Brown, and Candace McCoy, in composing and revising this essay.
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