PATTERNS AND PRACTICES OF DISCRIMINATION THAT SHOULD BE UNACCEPTABLE IN A CONSTITUTIONAL DEMOCRACY
By John Weston Parry, J.D.
That police officers across the nation sometimes “choke first, ask questions later” has been known for a long time, but has been brought to light once again by a report by the New York City Policy Department’s inspector general. As a New York Times editorial explains, “this much-reviled, supposedly disavowed tactic has never gone away….” The actual prevalence of excessively violent rogue police practices such as these cannot be easily measured.
However, there is little doubt that these types of police abuses continue to occur at rates that are unacceptable in a constitutional democracy. That policing can be a dangerous profession, which most adults would choose to shy away from, should not be an acceptable excuse for ignoring or minimizing travesties of justice when they take place. Certainly better enforcement of department rules, along with improved training of officers, can help to stem criminal-like police practices, which have been implicitly—and occasionally explicitly—tolerated or sanctioned in police departments throughout the United States.
Nonetheless, improved enforcement and training alone will never be enough to prevent police violence against Americans, who either do not present an immediate danger or present a minimal danger that can be reasonably controlled using nonviolent means. Perceiving the possibility of harm to oneself should not be enough by itself to justify the use of excessive and potentially lethal force. For the example, the mere perception that a suspect might have a gun should only be a recognized excuse for lethal police force if under the given circumstances most trained officers also would believe they were about to be shot. Otherwise, anyone who is stopped by the police is in danger of being harmed or killed, which is what is happening now and makes the decision as to who should be stopped in the first place critical. In particular, allowing young men and male adolescents of color and people with mental impairments to be profiled by police as deserving enhanced police attention is an injustice that can produce devastating results.
There are several threshold questions that need to be answered—and policies implemented based on those answers—in order to protect the public from excessively violent police practices that diminish the constitutional rights of all Americans.
· What potentially lethal tactics, including chokeholds, should police officers be authorized to use in order to provide security and protection in our communities and for the officers themselves, and in what circumstances?
· What standards should police officers who violate police procedures and state and federal laws governing police misconduct be held to when their transgressions are discovered and what special enforcement apparatus should be in place to ensure compliance with those procedures and laws?
· Are there particular groups of people that are significantly more likely to experience abuse and excessive violence from the police and what special measures should be implemented to protect them from this intolerable form of discrimination?
Police Tactics That Should Be Allowed: Beliefs and Perceptions Versus Knowledge
Generally it is understood that the police should be authorized to use weapons, pursuit tactics, and defensive measures that are necessary to protect their communities, themselves, and their fellow police officers. While there can be reasonable differences of opinion about what is actually necessary to accomplish sound policing objectives, the slippery slope towards police overreaching and brutality has been accelerated by the uncritical acceptance of the perceptions and beliefs of police officers themselves as to what is necessary. Throughout American society the refusal to embrace knowledge and critical insights based on that knowledge leads to many different forms of abuse, neglect, and discrimination.
The beliefs and perceptions of all human beings are inherently skewed and weighted towards conclusions that support themselves, their own values, and those people and groups closest to them. For police officers their shared biases tend to be skewed towards self-protection, protection of their fellow officers, and a perception of dangerousness based on their coming in contact with a disproportionate percentage of potentially violent people. Knowledge and critical thinking are the primary tools that are required in order to overcome this perceptual imbalance. What police officers believe or perceive as being necessary to perform their jobs and to meet the policing objectives of their communities should only be given credence in policymaking once those notions have been properly vetted.
Police officers obviously have a great deal of practical expertise to contribute to policing, but they also have inherent biases that need to be purged when policing policies are being determined. As Charles Blow of the New York Times has correctly observed, the police “encounter a disproportionate percentage of people who break the law… [which] warps their perception of citizens in general,” and the potential for those citizens to be dangerous. As a result, police unions and police departments should not be making policies about deadly police tactics. These decisions should be made independently with substantial opportunities for the police to contribute to the fact-finding process. The police should be in charge of implementing these policies with vigorous independent oversight to ensure that the implementation is reasonably consistent with the stated policies.
Three of the most controversial police tactics in recent years have involved the aforementioned chokeholds, the unnecessary shooting of suspects, and pursuit measures that endanger innocent citizens. With regard to all of these tactical excesses, the perceptions and beliefs of the police—and those who represent the police—have distorted reality and on too many occasions created unreasonable outcomes that threaten and take the lives of innocent Americans. Policing should not resemble the “wild west” where suspects could be taken into custody “dead or alive” without any questions being asked.
There is no legitimate reason to use chokeholds in policing, except in the very limited situation in which an officer is engaging in hand-to-hand, physical combat with a suspect or is the victim of a surprise attack and cannot otherwise protect him or herself. As a method of self-defense, the chokehold should be viewed as a policing option of last resort, which can too easily cause unnecessary harm or death. Too often it is used as a way to punish and injure a suspect, rather than to obtain reasonable control.
The excessive use of deadly force with a firearm in policing has been perpetuated by two popular beliefs supported and cultivated by the police themselves. The first notion is that the life of a police officer is more important than almost anyone else, which is one of the main reasons why whenever an officer dies so many fellow officers, police officials, and politicians attend the funeral. Unfortunately, as long as society treats the death of a police officer as being more important than the death of almost anyone else, it will be difficult to protect devalued and less-valued Americans from police abuses and violence. A second belief is that whenever a police firearm is used it should be fired with the intent to kill, which has been generalized to mean that if there is more than one officer present as is frequently the case, all the officers should draw their weapons and fire in order to shoot to kill. The too familiar results of such excessive force are the tragic scenarios in which persons making threats, but who do not constitute an immediate danger, or making no threats at all are riddled with bullets, shot in the back, or shot even though they have no deadly weapon.
Finally, high speed car chases by police to catch fleeing criminals, especially those who have committed non-violent offenses, continue to wreak havoc on the civilian populations who happen to be in the way. This is reflective of an attitude that places the privilege of police to engage in dangerous practices they covet over the safety of the people and communities they are suppose to protect. To say this is self-defeating and counterproductive is to state the obvious. Yet, what should be obvious frequently does not penetrate the aura of the blue shield. Thus, reckless car chases by police become romanticized in the movies and television as evidence of manliness or macho feminism carried out by those who are celebrated as the best of the police profession.
Policing Standards and Enforcing Accountability
There is a strong tradition in the United States and elsewhere that aggressive actions of the police while on duty should be governed by standards that are reasonably different from those that govern the rest of society. This also is a tradition that has confused and conflated two very different principles, creating an intractable dilemma. There is little disagreement that providing police with the special authority needed to do their stated jobs more competently, which necessitates certain exceptions to the normal laws and rules that govern other Americans, is an appropriate delegation of police powers. As discussed above, care still needs to be paid in deciding what special allowances are to be made. In addition, certain specified limitations need to be placed on those powers. Nevertheless, as a general principle our laws need to provide for specific allowances and accommodations that are tied directly to the roles the police are supposed to fulfill in protecting their communities, themselves, and their fellow officers.
At the same time, what can be a laudable police tradition also has been responsible for overwhelming sensible government because too often those in charge have not enforced laws when police violate them, or have enforced them with less vigor. Police should be held to a higher standard of accountability than other Americans, if they violate the law. They certainly should not be held to a lower standard. The current double standard has created a situation in which rational measures to account for the special dangers and burdens of policing have been expanded to implicitly excuse police officers who engage in reckless and excessively violent behaviors, such as unnecessarily choking, shooting, or running over civilians.
This double standard not only infects police departments, but also the state and federal prosecutors who are tasked with upholding the law because they are beholden to the police in order to effectively prosecute other criminals. In other words, there is an obvious conflict of interest. The grand jury system in particular has been subject to prosecutorial manipulations favoring the police. Prosecutors, more than anyone else, guide and control those proceedings. At the very least, prosecutors tend to extend professional courtesy to police officers, and often extend much more than that.
Thus, a system of justice that should hold law enforcement to the highest legal standards has created conditions that result in the standards being lowered for police. In such an environment, the best police officers are compromised by the actions of the least qualified and the policing profession continues to attract and retain too many individuals of questionable character. An officer, who does not make a reasonable decision regarding the use of lethal force, should face an independent judicial inquiry, in lieu of a grand jury, to determine whether probable cause exists to conclude laws were broken. If probable cause exists, that officer should be tried as a criminal defendant. Special rules, which would implement this independent judicial inquiry, should be enacted into law as limitations on the special powers that are granted to the police.
Young Men of Color and Persons With Mental Impairments Are Much More Likely To Be Victims of Bad Policing
One of the most reprehensible aspects of allowing excessively violent policing is that it empowers existing biases, prejudices, and personality problems of police officers. While anyone who is subject to an interaction with the police could be a victim, overwhelming anecdotal evidence suggests that the likelihood increases geometrically when the individual is either a young man or male adolescent of color or a person who exhibits, or is known to have, symptoms of a mental impairment. This is primarily due to false and misleading generalizations that are embraced throughout American society.
While it appears to be true that members of criminal gangs and a relatively few actively psychotic individuals are more likely to be dangerous individuals, it does not follow that young men or male adolescents of color and people with mental impairments are substantially more dangerous than anyone else in society. Any increases in dangerousness that may exist are minimal and certainly do not justify profiling members of these groups as individuals who should receive special attention from the police. A vast majority of young men and male adolescents of color and people with mental impairments have done and will do nothing criminal to warrant such special attention.
In addition, both of these stigmatized groups of people have been victims of social biases and prejudices, which are reflected in bad policing. Furthermore, a small minority of police officers are simply disturbed individuals, who want to aggressively confront or cause harm—or enjoy harming—young men of color or people with mental impairments. When these officers act out on these base impulses, the aura of the blue shield, along with police covering for each other, tends to protect them from discovery, much less successful prosecutions.
In the current political environment in which community safety and homeland security have become preeminent values, the perfect storm of bad police practices is much more likely to strike those in society who are devalued, feared, or least able to resist. As a result, these discriminated against groups of individuals need special protections that go beyond improved police training and more rigorous enforcement when police misconduct occurs. It is the very people who are most likely to be profiled by police, who tend to be the victims of such misconduct and are the least likely to receive justice as a result.
Ultimately profiling to identify criminals based on racial, ethnic, socio-economic or psychological criteria is counterproductive because it is almost always inaccurate, unreliable, or distorted by biases and prejudices. There are way too many false positives and false negatives, which hinder rather than assist police investigations. Following the evidence is replaced by so-called “gut feelings.” Moreover, once individuals are mistakenly identified as suspicious, their risk of being falsely arrested, physically harmed, or killed by the police increases dramatically.
As empirical studies have shown in a related area, psychiatric risk assessments used to predict dangerousness are only reliable when they are used to exclude individuals as being dangerous (See John Weston Parry, Mental Disability, Violence, Future Dangerousness: Myths Behind the Presumption of Guilt (Rowman and Littlefield Oct. 2013 at 115-132, 141-145.) Similarly, police profiling based on racial, ethnic, socio-economic or psychological criteria (which constitutes an even more subjective form of risk assessment), now—and probably for many years—only has the potential to be reliable in determining who is not likely to be a criminal. Otherwise the use of such profiling is counterproductive, if being right more often than being wrong is to be valued.
In large measure this is because behaviors that are thought to apply to a specified group rarely apply to the specific individuals in that group with any statistical validity or reliability, even if no biases or prejudices are present. Moreover, being more likely to offend has no meaningful statistical impact unless that likelihood is very high, since very few people actually commit serious crimes. If less than 10 percent of the population commit a serious crime, which is probably a high estimate to begin with, having a characteristic that is thought to double the incidence of criminal behaviors means that the odds of a given individual in that group being a criminal is still only 20 percent. Conversely, more than 80 percent of those individuals have done nothing criminal. They happen to share certain characteristics that suggest to the police that they are more likely to be criminals.
Ultimately, the groups of Americans who are the subjects of police profiling need enhanced protections from police overreaching. In addition, when they allege police misconduct their allegations deserve heightened scrutiny. Among the groups that most need such special attention are young men and male adolescents of color and persons with mental impairments, who repeatedly have been the subjects of invidious discrimination at the hands of the police.