Unwarranted, p.6
Unwarranted, page 6
The obvious problem with “autonomy,” it turned out, was that it left the police free to make their own decisions, many of which were hardly “professional.” This was clear in a number of disasters brought to the nation’s attention courtesy of television. Viewers watched Southern police in Birmingham and Selma turn fire hoses, whips, and vicious dogs on peaceful protesters, adults and children alike. During the 1968 Democratic Convention, Chicago’s police—“professionalized” by O. W. Wilson—used Mace and “unrestrained and indiscriminate police violence” against people, especially reporters and photographers, who had “broken no law, disobeyed no order, made no threat,” in conduct an official report decided “only can be called a police riot.” 42
Above all, having set up crime statistics as the metric of success, police failed by their own measure: Crime rates rose at levels that alarmed the public. Fear of crime seemed to skyrocket even faster than crime rates themselves; the subject gripped the nation so firmly it became one of the two defining issues in the presidential election of 1968. (The other issue was the Vietnam War.)43
And so, the hunt was on for a new paradigm, some other way to understand and implement policing.
COMMUNITY POLICING
In the midst of all the chaos of the 1960s, “recognizing the urgency of the Nation’s crime problem and the depth of ignorance about it,” President Johnson appointed another blue-ribbon committee, his Crime Commission, to examine its causes and make recommendations. The report of the President’s Commission, The Challenge of Crime in a Free Society, was revealing of what professionalism and reform had wrought.44
The problem was a lack of trust brought about by police misconduct. “Police agencies cannot preserve the public peace and control crime unless the public participates more fully than it now does in law enforcement,” explained the Crime Commission. Yet “[t]here is much distrust of the police, especially among boys and young men, among the people the police often deal with.” As a result, “[i]t is common in those neighborhoods for citizens to fail to report crimes or refuse to cooperate with investigations.” The Crime Commission was as clear as the Kerner Commission in stating the reason for the distrust: “Commission observers in high-crime neighborhoods … have seen instances of unambiguous physical abuse,” “[t]hey have heard verbal abuse,” they “have seen a certain amount of harassment.” 45
The Commission was firm in insisting that the wounds had to be healed, that the police and the communities had to learn to work together. And while the Commission was clear that “[c]itizen hostility toward the police is every bit as disruptive of peace and order … as police indifference to or mistreatment of citizens,” still “the duty of taking the initiative clearly devolves on the police, both because they are organized and disciplined and because they are public servants sworn to protect every part of the community.” The Commission recommended creating community relations “machinery,” especially in minority communities. It also said there should be a “citizens’ advisory committee” that is “broadly representative of the community” to “work out solutions to problems of conflict between the police and the community.” “It is an urgent duty,” the commissioners insisted.46
Nothing in the policing world changes quickly, but by the late 1980s progressive forces were embracing the idea of “community policing.” Houston’s police commissioner Lee P. Brown—the first African American chief of a major city department—set this all out in a 1989 manifesto that was a complete rejection of what the earlier professionalism movement had stood for. Those squad cars buzzing through the metropolis responding to emergency calls, controlled by centralized management—they turned out to be the problem, not the solution. Officers spent their time racing from pillar to post when what they needed to do was get out of their cars, walk the beat, and engage with their communities. They should be “encouraged to initiate creative responses to community problems.” Police forces should “recognize the merits of community involvement,” and should decentralize authority so that officers can “interact with residents on a routine basis and keep them informed.” Brown also advocated “power-sharing,” meaning “the community is allowed to participate in the decision-making process.” 47
This vision of community policing got a boost when, in his 1994 State of the Union address, President Bill Clinton vowed to put 100,000 new police officers on the streets. Later that year the Community Oriented Policing Services (COPS) office opened in the Department of Justice. Over the next six years nearly $9 billion was disbursed to state and local government to support community policing efforts. By 1999, the Bureau of Justice Statistics was reporting that fully one quarter of the police were “community policing” officers or their equivalent.48
There was a new sheriff in town, and this one was talking a real good game of police-community partnership. Perhaps the wall between the people and the police was about to come down.
THE FAILURE OF COMMUNITY POLICING
Even before Clinton focused national attention and resources on community policing, detractors rushed to call the concept into question. Manhattan’s crusty longtime District Attorney Robert M. Morgenthau poured cold water on all the optimism about policing’s new direction. To the extent “[c]ommunity policing … harks back to the halcyon days when an officer was permanently assigned to the same areas so that he came to know its residents and their problems,” then—he wrote in an 1990 op-ed piece in The New York Times—“[n]o sensible law enforcement official” could disagree. Reforms like these were “long overdue.” 49
But community policing, Morgenthau argued, was asking too much of officers, more than their employers were prepared to train them to handle. “The new patrol cop is to be a municipal ombudsman—a conduit for the services of other city agencies and a catalyst for community self-help efforts.” “[F]or this awesome task,” Morgenthau proclaimed, “no one can seriously believe that five months at a police academy is adequate training.”50
Morgenthau was hardly alone in his skepticism. As numerous observers pointed out, community policing was, like beauty, in the eyes of the beholder. It was variously described as “a hodge-podge of unintegrated programs, absent central purpose or theme,” and “a buzzword,” for which “the variety of activities associated with it seem to have little in common.” Community policing programs came to be so amorphous, so all encompassing, that they even included hiring SWAT teams.51
To be sure, there was a buzz of activity, some of it admirable and effectual. With that much federal money being tossed around, one certainly hoped so. One strand of community policing, perhaps its most prominent, emphasized problem solving, in which the police would work with the community to address root problems. For example, after lawsuits stopped the Colorado Springs Police Department (CSPD) from simply arresting homeless camp residents, a unit of the CSPD managed to eliminate the camps by leading a network of social service providers to help relocate residents. A remarkable collaboration in Los Angeles reduced gang violence in 2010. Police began athletic leagues; programs like Neighborhood Watch became regular features throughout the country.52
But community policing also had a dark side, what came to be known as “order maintenance” policing. In a game-changing article in the March 1982 issue of The Atlantic titled “Broken Windows,” George Kelling and James Q. Wilson argued that disorder cannot be left alone because it breeds more disorder. “[I]f a window in a building is broken and is left unrepaired, all the rest of the windows will soon be broken.” Then, disorder breeds fear of crime, which in turn creates an environment in which crime can prosper—“many residents will think that crime, especially violent crime, is on the rise, and they will modify their behavior accordingly. They will use the streets less often, and when on the streets will stay apart from their fellows, moving with averted eyes, silent lips, and hurried steps.” The answer was to go after disorder the moment it showed its face.53
As applied, order maintenance policing’s aggressive approach served only to worsen police-community relations. In New York City, Mayor Rudy Giuliani brought it front and center, cracking down on turnstile jumpers and squeegee men, but also harassing local residents with the frequent use of stop-and-frisk. Measures like these, across the country, “undermine[d] the legitimacy of the criminal justice system” and bred yet further hostility in communities deeply in need of help from the police. As George Mason’s Center for Evidence-Based Crime Policy explained, not only was there a serious debate about whether order maintenance policing reduced crime, “there is the concern that any effectiveness of broken windows policing … may come at the expense of reduced citizen satisfaction and damage to citizen perceptions of the legitimacy of police.”54
Community policing, as people like Lee Brown promoted it, called for deep philosophical change, but most police forces simply did not buy in. In 2008, Wesley Skogan, a Chicagoan and longtime student of policing, wrote “Why Reforms Fail,” a lament about the demise of community policing aspirations. “Police,” he wrote—echoing conclusions reached by many others—“are skeptical about programs invented by civilians.” He attributed this to “police culture”: “American policing is dominated by a ‘we versus they,’ or ‘insider versus outsider’ orientation that assumes that the academics, politicians, and community activists who plan policing programs cannot possibly understand their job.” In short, “[t]hey do not like civilians influencing their operational priorities, or deciding if they are effective.”55
As a result, the same lack of trust between police and policed communities that caused so much trouble in the 1960s once again reared its head publicly beginning in the summer of 2014, with the shooting of Michael Brown in Ferguson, Missouri. In the face of one “officer-involved” shooting after another, of riots and protests throughout the country, the distrust was plain to see. The country could no longer ignore the fact that policing still retained its “we versus they” perspective, aloof from the community, autonomous if not always professional, and not particularly welcoming to meddling or criticism.
And so, in the wake of the latest national turmoil over policing yet another president appointed yet another committee—the Task Force on 21st Century Policing—to make yet more recommendations. “Given the urgency of the issues,” said Barack Obama (perhaps unintentionally echoing Lyndon Johnson), the group would report back in ninety days as to what should be done. Those recommendations were telling. Finding there was still a severe lack of trust between police and the communities they police, the Task Force called on law enforcement “to establish a culture of transparency and accountability to build trust and legitimacy.” “[L]aw enforcement,” it emphasized, cannot build community trust if it is seen as an occupying force coming from outside to impose control on the community.”56
SECRECY FOR SECRECY’S SAKE
The problem is there will never be trust and accountability without transparency. Anyone who thinks otherwise is dreaming. To the extent we believe things are being hidden from us, we will not trust. And unless we can know what law enforcement is doing, we cannot govern. Transparency is essential if the people are going to have a say in what the police do.
Yet, despite this basic truth, policing today remains shrouded in secrecy to a degree that is often difficult to comprehend.
In the early days of 2012, the Los Angeles County Sheriff’s Department flew a plane over the ten-square-mile city of Compton, California, using a high-resolution camera to record what went on below. For nine days the plane captured video so fine the deputies could see auto accidents, a necklace snatching—and much else. None of the residents knew; even the mayor was kept in the dark. When the surveillance was discovered, a sergeant with the LACSD told a journalist, “This system was kind of kept confidential from everybody in the public. A lot of people have a problem with the eye in the sky, the Big Brother, so in order to mitigate those kinds of complaints we basically kept it pretty hush-hush.”57
A statement like that—people would be upset, so we kept it secret—would be jaw-dropping if any other public official had said the same. Conor Friedersdorf, writing in The Atlantic, declared, “That attitude ought to get a public employee summarily terminated.” Imagine the head of the school board saying, “We decided to send the best teachers to a school where we thought kids would benefit the most, but we knew it would bother people so we kept it quiet.”58
It’s not just the secrecy; it’s the public prevarication, the outright lying. Cops shade the truth so much in court hearings that there is a colloquial name for it—“testilying.” A 1987 study in Chicago found 76 percent of officers said they frequently “bent the facts” to establish probable cause; a 1992 survey of judges and lawyers in the same city estimated that in evidence exclusion cases there is outright perjury by the police 20 percent of the time. It is justified on the grounds that if cops are honest in court about what they did, bad guys will walk. (One cop described such lying as “God’s work.”) New York’s 1994 Mollen Commission termed police perjury “probably the most common form of police corruption facing the criminal justice system.” But this very same sort of misrepresentation is also seen at the highest levels—like when the president lied to the country about tapping Americans’ overseas calls without a warrant, or when the head of national intelligence lied to Congress about bulk data collection.59
It’s not just bad cops; it’s a culture. When things go wrong in the policing world, the “Blue Wall of Silence” goes up to keep it in the family. In September 2010, a federal judge awarded the victim of a beating by a DEA agent $830,000. She made a point of calling out the police for their treatment of the Kansas City police detective Max Seifert, who labored to fight a cover-up of the incident. Seifert was subsequently drummed out of the force, losing part of his retirement benefits. The judge called the treatment of Seifert “shameful,” saying he was “shunned, subjected to gossip … and treated as a pariah.” A federal grand jury in Chicago fingered a similar “code of silence” in a case involving a drunken off-duty cop who beat a woman bartender for refusing to serve him more. A local reporter covering the case described the “underbelly of a police subculture”: “the blue curtain, an understanding between police officers that they should cover for each other unconditionally and that testimony against a fellow cop amounts to a betrayal of their fellow bond.” When the Department of Justice was investigating racial profiling along the New Jersey Turnpike, the New Jersey State Police worked hard to keep the data from federal investigators.60
But put aside the really ugly stuff and acknowledge that the most basic information about law enforcement, essential to sound oversight, is regularly kept from public view. The Task Force on 21st Century Policing decried the deplorable lack of data available even about the use of force. How can communities be expected to trust when they can’t get the facts on how often guns are drawn, shots fired? It has taken reporting by The Guardian and The Washington Post to shame government into doing a better job of gathering this information. When plaintiffs asked a New York court to turn over New York Police Department stop-and-frisk data, the Department objected this would “give away information about specific policing methods, such as location, frequency of stops, and patterns.” The ACLU conducted an analysis of the use of SWAT teams nationally; over half of the policing agencies contacted wouldn’t answer. A UCLA law professor reported that when conducting an important study on the extent to which officers are indemnified if they are held liable for misconduct—after all, how can you develop a system of accountability if no one ever pays?—she was startled by the refusal to provide data or describe local policies.61
What’s happened is an inversion of what should be the ordinary state of public affairs, in which government officials report to the people for whom they work. The noted legal philosopher Jeremy Waldron puts matters bluntly: “In a democracy, the accountable agents of the people owe the people an account of what they have been doing, and a refusal to provide this is simple insolence.” 62
In the 1960s, Kenneth Culp Davis—America’s foremost scholar of administrative governance—did an in-depth study of the Chicago Police Department. He concluded that the top officers of the CPD failed to understand that “they are not the proprietors of a private business. They work for the public. In a democratic system, the members of the public—the electorate—are their bosses. And the bosses have a right to know what is going on.” 63
What should be clear by now is that the more things change, the more they remain the same. Speaking of Stingrays, Freddy Martinez and Matt Topic would say that Kenneth Culp Davis’s observation is a continuing problem. And they’re right. In August 2015, The Wall Street Journal reported that law enforcement is using new devices—called “Wolfhounds” and “Jugulars”—that are cheaper than Stingrays but do basically the same thing. Given the difference in technology between Wolfhounds and Stingrays, law enforcement appears to be arguing that no judicial review is needed before deploying these devices. Not that they are saying much publicly. “We can’t disclose any legal requirements associated with the use of this equipment,” said a Baltimore Police Department spokesperson. “Doing so may disclose how we use it, which in turn interferes with its public-safety purpose.” Doesn’t this begin to sound awfully familiar?64
DRAWING LINES
The police are always going to say what they said about Stingrays—and now Wolfhounds. That they can’t answer questions, because explaining things in public will allow criminals to more skillfully evade police detection.65 Policing, they explain, is like a game of cat and mouse—as the cats get smarter, the mice adapt. The longer police are able to keep their investigative strategies secret, the longer they can maintain the upper hand.
Fair enough—sometimes, at least. But what’s important is to make sure we aren’t the mice, from whom unnecessary secrets are kept. That’s why it is important to draw workable lines.
In reality, the need for secrecy is not nearly as acute as it may seem. When it comes to many of the police tactics that currently escape regulation—from protocols for the deployment of SWAT teams, to what police must do to obtain consent to search, to whether and for what Stingrays are used, there simply is no plausible case for keeping the public in the dark.
