The More We Learn…

It’s a conundrum.

Any civilized society operates by creating and enforcing rules. Social tranquility depends upon choosing wise people to make the rules and fair-minded people to enforce them.Right now, America isn’t doing too well with either of those populations.

This blog spends an inordinate amount of time on the clown show that is the U.S. House of Representatives, but problems with enforcement–with policing–are equally thorny.

From the beating of Rodney King to the murder of George Floyd and the multitude of other unwarranted violent episodes, Americans have been inundated with video evidence of questionable police behavior.

And “questionable” is frequently the correct word. As public safety professionals will tell us, protecting the public often requires split-second decision-making in situations that are a lot more ambiguous than they appear after the fact. Given the difficulties they face, giving police the benefit of reasonable doubt is only fair.

But all doubt isn’t reasonable.

Reporters keep uncovering deeply disturbing evidence of a racist, anti-Semitic and thuggish culture that persists in a troubling number of police departments. A year or so ago, one such culture was exposed in Torrance ,California . Text messages that had circulated among current and former officers of the city’s Police Department “reveal a culture rife with racism, antisemitism, and homophobia going back at least a decade.”

The texts are extremely violent in nature and grotesquely racist, homophobic, and antisemitic.

According to reporting from the LA Times, one text shows a picture of a candy cane, a Christmas tree ornament, a star for the top of the tree, and an “enslaved person.”

“Which one doesn’t belong?” the caption asks.

“You don’t hang the star,” someone replies.

Another message reads “hanging with the homies,” attached was a photo of several Black men who had been lynched.

Another photo asks what someone would do if their girlfriend was having an affair with a Black man. The captioned response was to break “a tail light on his car so the police will stop him and shoot him.”

Prosecutors say the messages go back years and could jeopardize hundreds of criminal cases in which the officers either testified or made arrests.

The LA Times identified 13 current and former police officers and one Long Beach cop who are now under investigation. At least nine of the officers texted images or commentary advocating violence against Black people and LGBTQ community members and ridiculing racial profiling.

There was much more, and all horrific. Discovery of the texts was triggered by an investigation of two former Torrance police officers who had spray-painted a swastika inside a resident’s car.

If Torrance was an isolated instance, it would be troubling enough, but in the last few years, we’ve seen repeated evidence that these White Supremacy attitudes are widespread among both the police and the military.

As the linked article by an FBI agent now with the Brennan Center warns:

For decades, the Federal Bureau of Investigation has routinely warned its agents that the white supremacist and far-right militant groups it investigates often have links to law enforcement. Yet the justice department has no national strategy designed to protect the communities policed by these dangerously compromised law enforcers. As our nation grapples with how to reimagine public safety in the wake of the protests following the police killing of George Floyd, it is time to confront and resolve the persistent problem of explicit racism in law enforcement.

I know about these routine warnings because I received them as a young FBI agent preparing to accept an undercover assignment against neo-Nazi groups in Los Angeles, California, in 1992. But you don’t have to take my word for it. A redacted version of a 2006 FBI intelligence assessment, White Supremacist Infiltration of Law Enforcement, alerted agents to “both strategic infiltration by organized groups and self-initiated infiltration by law enforcement personnel sympathetic to white supremacist causes.”

As the officer who wrote the above article pointed out, If the U.S. government found out that al-Qaida or a similar foreign terrorist organization had infiltrated American law enforcement, it would immediately launch a nationwide effort to identify those individuals and neutralize the threat.

Yet white supremacists and far-right militants have committed far more attacks and killed more people in the U.S. over the last 10 years than any foreign terrorist movement. The FBI regards them as the most lethal domestic terror threat. The need for national action is even more critical.

We the People need the police. But we need the right kind of police. That requires hiring practices capable of weeding out thuggish, bigoted applicants, and training that emphasizes service to all parts of the communities they will be hired to protect.

We have a problem, and public safety requires that we fix it.

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The Policing Conundrum

In the late 1970’s, I served three years as Indianapolis’ Corporation Counsel–the city’s chief lawyer. Defending police against charges of wrongdoing was one of the tasks of the legal department, and one of the lasting lessons I took away was the need to hire officers carefully.

As a police chief I worked with at the time was fond of saying, “We give these guys guns to carry and authority to use them–we have an obligation to select and train them so they won’t abuse that authority.” During my tenure, the City instituted psychological tests in an effort to weed out applicants who were attracted to policing for authoritarian or other dubious reasons, and made several efforts to improve training.

During last year’s Black Lives Matter protests, I often thought back to those City experiences. I knew many truly admirable officers–but City Legal also had to defend some indefensible ones. And the police union didn’t help–for them, it was all “us versus them,” and “our guys right or wrong.”

Because I knew there was truth to both “the policeman is your friend” and accusations of brutality and worse, I may have been less shocked by a headline in the Guardian after January 6th: “US Capitol riot: police have long history of aiding neo-Nazis and extremists.”

For years, domestic terrorism researchers have warned that there are police departments in every region of America counting white supremacist extremists and neo-Nazi sympathizers among their ranks.

To these experts, and the activists who have been targeted by law enforcement officers in past years, it came as no surprise that police officers were part of the mob that stormed the US Capitol on 6 January. In fact, the acceptance of far-right beliefs among law enforcement, they say, helped lay the groundwork for the extraordinary attacks in the American capital.

Criminal justice news sites have identified at least 30 sworn members of police agencies from some 12 different states who participated in the insurrection, and several on-duty Capitol police officers have been suspended for allegedly supporting, rather than resisting, the rioters. Scholars who study extremist movements and survivors of far-right violence have warned for years that there are close ties between some police and white supremacist groups. 

As news of the participation of police in the insurrection has emerged, some officers have abandoned the traditional “wall of silence..”According to the president of the Major Cities Chiefs Association, the behavior of those participants was so egregious, it prompted fellow officers to alert police chiefs and others to their colleagues’ participation in the mob attack on the Capitol.

Actively helping an effort to overthrow the government might have been a step too far, but the linked article recounts several exceedingly troubling events in which police actively protected Neo-Nazis rather than those they were attacking. One example:

In June 2016 in Sacramento at least ten people were stabbed and injured at a rally of the Traditionalist Workers Party (TWP), a group that extremism experts have classified as neo-Nazis.

The subsequent investigation, led by the California Highway Patrol (CHP), focused on the anti-fascist counter-protesters injured in the stabbings, with records showing that police worked with white supremacists to identify leftist activists and pursue criminal charges against the stabbing victims.

The lead CHP investigator, Donovan Ayres, repeatedly stated in police records that he viewed the neo-Nazis as victims and the anti-fascists as suspects.

Research continues to confirm that protestors on the Left  are far more likely to be arrested than those on the Right.

York University sociologist Lesley Wood analyzed 64 U.S. protests from 2017 and 2018 where counter-protesters were present and arrests were made. She found that right-leaning protesters accounted for 8% of total arrests, while left-leaning protesters accounted for 81%. (The ideology of the remaining arrestees — 38 of them at 14 events — couldn’t be identified from news reports.) Although Wood cautioned against drawing conclusions solely from the raw numbers–more people have attended protests by the Left than the Right–there is nevertheless consistent evidence that police will move far more aggressively against those on the Left.

And it will surprise absolutely no one that–as authors of a 2012 analysis found, “events initiated by African Americans remain a positive and robust predictor of the use of force…”

Part of the problem is that we currently  call on the police to address problems that should be shifted to other forms of public safety, such as social services, youth services, housing, education, healthcare and other community resources. “Defund the police” was one of the stupidest and most counter-productive slogans produced by Democrats (and that is saying something!), but the actual shifts of responsibility being proposed under that banner were mostly sensible.

It is long past time to improve the way we recruit, train and discipline officers, and modify what we ask them to do. 

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Speaking Of Accountability…

Here  are a couple of sobering statistics from The Brookings Institution:  A Black person is killed about every 40 hours by police, and Black people are 3.5 times more likely than white people to be killed by police when they are not attacking or do not have a weapon.

The research also  shows  that, typically, police officers aren’t charged in these killings of unarmed Black people, and even when they are, they are almost never convicted.

As the linked report notes,

In policing, people often talk about bad apples. Well, bad apples come from rotten trees, and the rotten trees are law enforcement agencies imbued with structural racism. Standard processes for holding police officers accountable, issuing civil payouts to victims of brutality, and rehiring fired officers are a few of the factors that contribute to the entrenchment of racism and police brutality.

The  report outlines some  of  the reasons for the  lack of accountability, and  makes two recommendations for improvement.  The first  recommendation is–or should be–obvious:  don’t rehire–or shuffle around– officers who have been fired for misconduct.  Those  officers should not be able to work in law enforcement again.

This recommendation is receiving bipartisan support at the federal level. It is part of Trump’s recent Executive Order and the George Floyd Justice in Policing Act that passed in the House of Representatives.

The second recommendation is one I  hadn’t previously encountered, and  as  a former Corporation Counsel who  supervised these payments, I  can tell you  that  it makes a lot of sense.  It  involves the restructuring of  compensatory payments. Currently, when a lawsuit  is brought alleging misconduct  by police, and that  lawsuit is either won by the plaintiff or settled,  payment of damages comes from the general funds of the city.  Brookings  advocates moving the source of  payment from taxpayer money to police department insurance policies.

We aren’t talking  about insignificant  funds. As  Brookings reports,

Eventually, there will be a large civil payout for the death of George Floyd. The Floyd family’s taxpayer money will be used to pay them for his dehumanization and killing. Due to qualified immunity—the legislation that often prevents officers from facing civil culpability—officers are typically immune from the financial impacts of these civil payouts. Since 2010, St. Louis has paid over $33 million and Baltimore was found liable for about $50 million for police misconduct. Over the past 20 years, Chicago spent over $650 million on police misconduct cases. In one year from period from July 2017 through June 2018, New York City paid out $230 million in about 6,500 misconduct cases. What if this money was used for education and work infrastructure? Research suggests that crime would decrease.

The report cites parallels:  In health care, for example, physicians and hospitals carry malpractice insurance. Even if the city  uses  taxpayer funds to cover the police department’s malpractice insurance premium, there are  real benefits to this approach; for one thing,  if the city’s malpractice premium goes up, the city will get valuable information  about which police officers, like which physicians and which hospitals, are responsible.

These proposals merit consideration. Another big  step forward would be the amendment  or elimination of the doctrine of qualified immunity, which I wrote  about  last  month.

Thanks to the  ubiquity  of cellphone cameras, well-meaning Americans can  no longer tell themselves that all police officers are “good guys” and anyone reporting brutality or other lawless behavior must  have deserved it. We’ve seen too much. On  the other  hand, it  is really important that we restore respect  for law enforcement, and for the officers who are following the rules and doing a  dangerous job in order  to  keep communities safe. We won’t restore that respect and encourage co-operation with law enforcement until there are structural changes that remove the “safe harbors” exploited by the bad  apples who   undeniably exist.

These approaches are worth considering–as are the suggestions for relieving police of duties more  logically discharged by social workers and/or medical personnel. (Whoever decided to label that proposed shift of responsibilities “defunding police” should be banned from engaging in any policy debate ever again…)

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This Is Chilling

As if the Trump Administration and its enablers in McConnell’s Court haven’t done enough to erode public confidence in America’s governing institutions, recent disclosures about the number of police officers involved in White Supremicist organizations should make the hair on the back of our collective necks stand up.

First, I ran into an article from the Philadelphia Inquirer reporting that the City of Philadelphia had pulled 72 officers off the street:

At the very beginning of June, a group called The Plain View Project—established in 2017 as a research group looking for racist, Islamophobic, and other hateful rhetoric posted and shared by law enforcement on social media—released some very harrowing results. The database they had compiled, according to the Philadelphia Inquirer, included around 3,100 posts by some 330 active Philadelphia police officers. Of the 330, at least 16 were ranked officers. One of the issues with police officers’ private social media posts is that virtually all law enforcement agencies have some form of a social media policy that includes a restriction from posting things that could undermine public confidence in the law enforcement agent. The Plain View Project that collected this batch of law enforcement revelations, was led by Harvard Law graduate Emily Baker-White who told the Inquirer that she began this work because she had realized no one was aggregating police officer social media posts.

The results, published in Buzzfeed News, with the help of nonprofit newsroom Injustice Watch, was undeniable. While The Plain View Project was Philadelphia based, the disturbing posts from law enforcement were found from Dallas to Chicago to Florida, while the investigation was continuing,

The department took 72 officers off street duty during the investigation. At the time of the media report, none of the officers being investigated had yet been “disciplined,” but the Chief was quoted as predicting that such discipline would be forthcoming, and that “several” officers would likely be fired.

MeanwhileDispatches from the Culture Wars reports

Hundreds of active-duty and retired law enforcement officers from across the United States are members of Confederate, anti-Islam, misogynistic or anti-government militia groups on Facebook, a Reveal investigation has found.

These cops have worked at every level of American law enforcement, from tiny, rural sheriff’s departments to the largest agencies in the country, such as the Los Angeles and New York police departments. They work in jails and schools and airports, on boats and trains and in patrol cars. And, Reveal from The Center for Investigative Reporting discovered, they also read and contribute to groups such as “White Lives Matter” and “DEATH TO ISLAM UNDERCOVER.”

These organizations are deeply racist; they trade in anti-Semitic and anti-immigrant slogans, and a number are openly Islamophobic.  Worse still, the investigation found at least 150 officers involved with violent anti-government groups.

Thanks to the ubiquity of cell phone cameras, we’ve seen unsettling documentation of police behaviors consistent with the findings of this investigation. A lot of nice white middle-class Americans have been shocked by evidence that some police behavior changes rather dramatically in neighborhoods that are racially or ethnically different from their own.

We have a lot of housecleaning to do if we are going to mount an effort to live up to our ideals and the Constitution.

I just hope the rot hasn’t spread too far, and that it isn’t too late.

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Good Cop, Bad Cop

Yesterday’s post about the Department of Justice’s investigation of the Baltimore police department contained several suggestions about implementing change. A recent series of articles in the Washington Post pointed to a reform I omitted.

The Justice Department’s investigation of Baltimore police this month rebuked the agency for an entrenched culture of discriminatory policing. Deep within their findings, Justice investigators singled out a core failure: Baltimore’s system for identifying troubled officers was broken and existed in name only.

In Baltimore, Justice found that critical disciplinary records were excluded from its early intervention system, that police supervisors often intervened only after an officer’s behavior became egregious and that when they did, the steps they took were inadequate.

According to the Post, many police departments have inadequate “early warning” systems, and many have none at all. As a result, “bad apples” are protected, rather than identified, until they do something so egregious that it cannot be covered up.

An early-warning system, of course, is only as good as the data it includes. Some systems, according to the Post, exclude the sort of information one would expect–complaints filed, incidents of excessive force–instead recording things like grooming violations (growing a beard in violation of the rules) or absences. And as one officer noted, recording even relevant data doesn’t do any good if no one is reviewing it and acting on it.

The real problem is a very human one: the deeply-embedded tribalism that causes us to see the world as “us versus them.” The culture of a police department is very similar to that of a military group. Such “bonding” can be an important asset when danger approaches, but it can lead to a counterproductive protectiveness when one of “ours” is accused of improper behavior. When the accusation comes from someone who doesn’t look like “us”–someone who is culturally or socio-economically or racially different–that tribal instinct can overcome good judgment.

As strong as that impulse is, it behooves us to recognize that there are a lot of good guys in blue who play by the rules and require others to do the same.

Back in my City Hall days, I remember a conversation with the then-Chief of Police, about a lawsuit that had just been filed against a member of his force. Far from being defensive, he immediately agreed to investigate the allegations, saying “When we give someone a lethal weapon and the authority to use it, we have an obligation to make sure he is well-trained, emotionally healthy, and wearing a badge for the right reasons.”

Says it all.

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