Wednesday, December 10, 2014

How We Came to Accept Police Brutality as the Norm 2/2

by Nomad

In Part One of this two part series we discussed the origins of the present problem between the black community and law enforcement. Reagan's get-tough on crime was based on a theory that came with some direct warnings about the potential for discrimination. The president chose to ignore them.

Reagan's anti-crime crusade led to giving law enforcement more freedom to do their job. At least that was how it was portrayed in conservative circles at the time. That policy was called "pro-active policing." 

Problems with Pro-Active Policing
An  ultra-conservative American libertarian think tank, The Cato Institute, paints a very different picture of the policy today. A site run by that organization, which attempts to highlight police misconduct, describes pro-active policing as..
the use of nearly autonomous elite police units that are trained to be more aggressive than regular officers as a response to gang and drug related violence by targeting people they suspect of being criminals before they commit crimes. These units are encouraged to use whatever tactics they can get away with in order to get results, those results being a high arrest rate.
Like the later preemptive strike doctrine of the Bush era, it is easy to see in retrospect how easily pro-active policing could be abused. The danger of this practice was that notion that police should be responsible for preventing crime before it happens. How is that even possible? 
Well, one description might remind you of the sci-fi film "Minority Report"
In proactive policing, law enforcement uses data and analyzes patterns to understand the nature of a problem. Officers devise strategies and tactics to prevent or mitigate future harm. They evaluate results and revise practices to improve policing. Departments may combine an array of data with street intelligence and crime analysis to produce better assessments about what might happen next if they take various actions.
This high tech description however tends to gloss over the more controversial aspect, a highly visible street presence which is intended to intimidate criminals before they commit crimes.  The more intimidating, the better.
Ironically, what developed over time was a gang mentality of thugs within the police force.
These teams tend to be close-knit and insular, trained to use highly aggressive tactics with very little oversight, and taught to think and act like the gang members and drug dealers they investigate while under cover.
In other words, the balance between the lawless and the lawful was so blurred that it was difficult to see which element was the greater threat to the community. The police force- especially when made up of white officers- took all of the appearances (as well as the mentality) of an occupying military.  

There were other problems, namely the pressure to show results in the form of increased arrest rates. Arrests- whether they be legitimate or not- are often used as a sign of effective police work. 
Added to this already dangerous dynamic was civil assest forfeiture laws implemented after 2000. This new policy allowed police to "take assets from persons suspected of involvement with crime or illegal activity without necessarily charging the owners with wrongdoing." Basically a license to steal with the approval of the justice system.

All in all, law enforcement had over time become, at least in some communities, every bit as frightening, as threatening to the innocent citizen, as the criminals they were supposed to be policing. 

Stop and Frisk: Targeted Harrasment?
As we noted in Part one of this series, Professors James Wilson and George Kelling back in 1982 in their Atlantic "Broken Windows" article warned about the risks of tougher policies and a more proactive approach.
They noted that without substantial safeguards, such as training, retraining, and supervision, there could be serious drawbacks to any stepped up police presence on the street. 
That didn't not seem to phase any of the hardliners, like President Reagan, and his Attorney General Edwin Meese.

To give an example of the kind of justice that was advocated under Reagan, here is a quote from Meese. When asked whether suspects (who may well be innocent) should have Constitutional protections, he said:  
Suspects who are innocent of a crime should. But the thing is, you don't have many suspects who are innocent of a crime. That's contradictory. If a person is innocent of a crime, then he is not a suspect.
The fundamental premise that all citizens are innocent until proved guilty- due process- was carelessly tossed to the wayside. With this mentality- that police somehow magically only suspect the guilty parties- the stage was set for widespread abuse.
*   *   *
Less than ten years later, the Mayor of New York, Rudy Giuliani became one of the most vigorous promoters of pro-active policing which he credits for "cleaning New York City." 

In 1994, "Supercop" William Bratton was appointed as the Commissioner of the New York City Police Department (NYPD) by Mayor Giuliani. In that capacity, he cooperated with Giuliani in putting the controversial broken windows theory into practice. One of the tools of zero-tolerance was cleaning up the street of "undesirables." 
Ignoring the risks, the mayor embraced the toughest and most controversial version of this pro-active policy which included not only foot patrols, but also "stop-and frisk."
"Stop, question and frisk" is a New York Police Department policy in which the police stop pedestrians, question them and sometimes search them if there is "reasonable suspicion" that the pedestrian "committed, is committing, or is about to commit a felony or a Penal Law misdemeanor."
However when it comes to the "stop and frisk" policy, there were always problems. Critics charged that it amounted to a discriminatory kind of profiling when a pedestrian who is a minority could be stopped regularly in a day for no other reason than the color of his skin or due to the way he or she may dress or speak. 

In the name of cleaning the streets, the police detain hundreds of thousands of law abiding New Yorkers every year, and the vast majority are black and Latino.
that innocent New Yorkers have been subjected to police stops and street interrogations more than 4 million times since 2002, and that black and Latino communities continue to be the overwhelming target of these tactics. Nearly nine out of 10 stopped-and-frisked New Yorkers have been completely innocent, according to the NYPD’s own reports.
Instead of bonding with the community, which was the original idea of pro-active policing, the policy ended up in simple harassment and intimidation. Instead of building trust, as it was intended, the stop-and-frisk policy simply built resentment.  

Reasonable Suspicion
The other problem lies in the exact terms. Opponents of the policy saw the danger in the vagueness of these terms and the potential for civil rights violations.
  • Besides the cop on the beat, who decides what is a reasonable suspicion that a pedestrian is "about" to commit a crime? 
  • How could there ever be a universal standard for the policy something that could apply in all communities, white, black, Latino, rich and poor? 
  • What input does the average citizen in the community have in that defining the standards in such a policy? 
  • Would, for instance, how one dressed be a factor in establishing reasonable suspicion even when it is part of a specific culture or age group? 
Suddenly the public is expected to take the word of the police- even in grand jury review of possible police brutality- that a particular person was acting in a suspicious manner. 

The police testimony- even in cases in which there was evidence that excessive force was used and was unwarranted- would be considered the official version of events. In no other situation would the testimony of the accused (the law enforcement officer) be given a higher ranking than numerous witnesses. The outcome in grand jury indictments would be based solely trust in the authority, which with each outrage was steadily shrinking.

Still, the supporters like Giuliani and others who have based their political careers on tough talk have regaled the benefits but have also ignored the abuse that has resulted from pro-active policing. Even as more and more innocent (technically at the very least) died at the hands of law enforcement that was spinning more and more out of control. 

As we have seen in a previous post, Giuliani's record in dealing with police brutality while he was mayor is, in fact, an indictment of a tragically wrong law enforcement policy. Innocent lives, like Patrick Dorismond, were lost and, outside of negative publicity for the department,  the murders went unpunished.

A License to Discriminate
In a recent interview, Giuliani himself unintentionally revealed the most worrying weakness of proactive policing. 
It, said Giuliani, "doesn't have to be rigidly enforced"
"When they call it ‘zero tolerance,’ that’s sort of a media exaggeration. You don’t enforce every rule, you don’t enforce it, you don’t enforce a rule against fare beating in the same way you do the laws against homicide.”
When Mr. Giuliani was mayor, the phrase "zero-tolerance" was politically advantageous. Now? It's a media exaggeration.  
However, his attempt to back-peddle presents an obvious problem that Rudy doesn't seem to have considered. If an officer doesn't have to "rigidly" enforce the laws, then who decides (and on what basis) which laws are enforced?  

In this way of thinking, one community could have a slightly tougher (or more relaxed) standard than another. It would be up to the law enforcement officer to decide for example whether spitting on the sidewalk was an offense in a minority when another officer in a different part of town might well ignore it. How can that be justice?

That's just half of the problem. Not only are officers allowed to determine which laws to enforce and who to target, they are also allowed to determine how much force is to be used in a given situation. As we have seen, under those circumstances, it is dangerously easy for law enforcement agents to feel authorized to dispense immediate justice. Without any real supervision, and knowing that come what make they would have the support of the Justice system, lethal force became the first and only option.

In the heat of the moment, the officer's own inherent prejudices about race or class can easily warp his judgement. (We have witnessed what happens when adrenalin levels soar during high speed car chases. Good judgment can go out the window, putting everybody between police in pursuit and the fleeing suspects in danger.) 

Knowing from past experience that the entire justice system- starting with the mayor- will back them up, and defend them at all costs ( even at the loss of public trust) police- even the best and most fair-minded- can go overboard.
There are other pieces of the puzzle. The pressure on police forces created  by tough anti-crime legislation laws, mostly at a state level, have been influenced and in some cases, actually written by ALEC lobbyists. The primary goal, say critics, was to add inmates to a pro-profit prison system.  
Critics have charged that the laws are in fact merely "policies that lock black and brown bodies behind bars" whether they actually deserve to be there or not.

Land of the Incarcerated, Home of the Intimidated
The United States is the world's leader in incarceration with 2.2 million people currently in the nation's prisons or jails. 

According to one source: two key features of the Reagan era, tougher drug laws and mandatory minimum punishments have led to a stunning "700% spike in the prison population over the past few decades, leading many states to literally run out of jails." Today, nearly a quarter of the people in state and federal prisons are there for drug offenses.

According to figures from the National Association for the Advancement of Colored People (NAACP), African Americans now constitute nearly 1 million of the total 2.3 million incarcerated population and they are incarcerated at nearly six times the rate of whites.
Even though African Americans and Hispanics make up approximately one quarter of the US population, since 2008, African American and Hispanics comprised 58% of all prisoners.

As if that weren't enough to cause protests around the country. there was yet another factor. Since 2001, (but it began in the war on drugs) police departments around the country have become progressively more militarized.

Overly weaponized teams of law enforcement officers are today conducting what was once considered routine police work. Taking all those factors together and it is really no surprise that the public - both black and white- have simply had enough of quasi-fascist tactics of America's police force.

Law Enforcement Abuse and the Constitution
As Ms. Deborah England, a California lawyer who has dealt with such cases, reminds us, law enforcement officers are agents of the government.
They are acting on behalf of the government and how they behave reflects, in a very real sense,  the government's respect for the constitution.
Why? The US constitution  defines the limits of government powers, including the law enforcement. 

Our Founding Fathers had a well-founded suspicious nature of authority and understood how easily tools to bring protection of life and property can easily be transformed into tools of repression. For this reasons, search and seizure laws and laws against self-incrimination were drafted into  the Constitution from the beginning, instead of relying on trust alone.   (Later laws respecting due process and equal protection were later added to those safeguards.) 

On top of that, the writers of the Constitution realized that any breach of that trust must be treated as a very serious offense and dealt with promptly and effectively. That's why they gave the citizens plenty of right to protest peacefully, to petition the government about grievances along with protections to freedom of the press and to speech.

One doesn't nee to look too far to find evidence that the system of oversight, such as the grand jury review of alleged cases, is deeply flawed. In past cases, the constitutional protection are sometimes the only means of redress in such cases. 

This has led to a rather absurd effect. 
In many New York cases, NYPD officers have been found not culpable of police brutality by grand juries and yet the case came before civil court, it led to million dollar settlements.
Lawyer England  writes:
While a citizen who is subjected to police brutality may be able to sue the police officer or even the department for personal injury damages under state tort law, many cases of police brutality involve civil rights violations under the Constitution or federal laws construing constitutional rights.
Lawyers for victim of police brutality generally cite constitutional violations such as:
  • denial of the due process rights guaranteed by the Fourth and Fourteenth Amendments to the Constitution
  • unreasonable searches prohibited by the Fourth Amendment of the Constitution, and
  • violation of civil rights under the Civil Rights Act of 1871 (42 U.S.C. §1983).
  • Section 1983 of the Civil Rights Act of 1871 provides for a private civil action for damages by any person deprived of his or her civil rights by anyone acting under “color” of law (in other words, in an official, governmental capacity).
The Irony of the Fourteenth
In addition to this, when race may (may not be a factor) civil court cases may revolve around the claim of violations to the victim's right to equal protection under the law as spelled out in the Fourteenth Amendment
It reads:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
It is a sadly ironic fact that the Fourteenth Amendment was pushed through Congress by the Radical Republicans in 1868. This progressive fringe of the party believed blacks were entitled to the same political rights and opportunities as whites. And the motive for the Fourteenth amendment was to provide a constitutional basis for protecting freed slaves who remained in the South following the Civil War. 
A 1872 Congressional report during the Reconstruction listed countless examples in the former rebel states of black Americans being abused by the vigilante groups like the KKK. But it wasn't just outlawed gangs. The repression included the local authorities.  

Following the war, many of the former slave-holding states adopted "Black Codes" of 1865-1866 which were "criminal codes" that singled out only people of color for special punishment.
The Black Codes was, in its day, white South's version of "zero-tolerance."

The Fourteenth Amendment- which was nothing short of a triumph for civil rights- meant that no State could refuse to recognize the newly-freed slaves as U.S. citizens. It was no longer acceptable for them to be offered less protection under State laws of justice compared with a white citizen.
The idea that there were two forms of justice, one for whites and another for blacks, was supposed to have been forever banished from American soil.
Today, African Americans have every reason to shake their heads and sneer at how little those constitutional protections actually mean when practically applied on the streets of Ferguson and Staten Island.