The Cleveland Caveat

The New York Times characterizes the settlement agreement reached between the Department of Justice, Office of Civil Rights, and the Cleveland police as “tough standards on force.”  By most accounts, it’s something Cleveland needed.

The agreement is part of a settlement with the Justice Department over what federal officials have called a pattern of unconstitutional policing and abuse in Cleveland. The department found in a review released late last year that police officers here used stun guns inappropriately, punched and kicked unarmed people, and shot at people who posed no threat. The episodes often went unreported and uninvestigated, investigators found.

And in the rare instance that the cop was prosecuted for his conduct, he walked. But I digress.

As Vanita Gupta, head of OCR said, “today’s agreement really should serve as a model for those seeking to address similar issues in their communities,” which makes no sense at all. It should be a model for all police departments, not just those where cops are out of control. If the rules are right, they’re right for all cops.

So will this settlement agreement do the trick, fix what ails Cleveland, rein in the police and save lives?  It’s got some clear, decent requirements in there, such as:

Officers will not use ECWs [electronic control weapons, also known as stun guns or Tasers]  in drive stun mode solely as a pain compliance technique.

As has often been noted, mouth off to a cop and get zapped for your insolence. That’s what they mean by “pain compliance technique,” which makes it sound more official.  And the agreement says they can’t do that. Kinda. See the word “solely” in there? And then comes the rest of the rule.

Officers may use ECWs in drive stun mode only to supplement the probe mode to
complete the incapacitation circuit, or as a countermeasure to gain separation between officers and the subject so that officers can consider another force option.

All of which sounds fine, but for the fact that it’s all subject to the usual caveat:

Officers will use Electronic Control Weapons (”ECWs”) only where: (I) grounds for
arrest or detention are present and the subject is actively or aggressively resisting, and lesser means would be ineffective; or (2) such force is necessary to protect the officer, the subject, or another party from immediate physical harm, and lesser means would be ineffective or have been tried and failed.

In other words, don’t tase people, unless they’re resisting or you’re scared, in which case do whatever you please.  These are the rules, but with the same gaping holes for rhetorical excuses to use force as have always been there.

“But he was resisting.”

“But I felt threatened.”

“But I believed alternate means would be ineffective.”

Well, okay then. Tase away, bro.  From the perspective of policing at street level, there are obstacles to surmount, such as how to craft rules that will limit the use of force without putting police in a position where they can’t defend themselves from harm.

Do these rules do the trick?  Well, they’re far better than fire anytime you want, officer, and generally seek to make clear that cops aren’t supposed to do bad things.  For example, the “don’t profile” section reads:

CDP will administer all activities without discrimination on the basis of race, ethnicity, national origin, religion, gender, disability, age, sexual orientation, or gender identity.

Does this mean cops in Cleveland will suddenly stop tossing black men?  Does saying so make it so?  Of course not, which is why the agreement adds this:

Within 18 months of the Effective Date, CDP will develop a bias-free policing policy.

Why should it take 18 months to “develop” a policy that says, “stop tossing black men”? And what difference will it make? Do cops really need a policy, thoughtfully developed over 18 months, to come to the realization that they aren’t supposed to discriminate against blacks?  And the day the policy is enacted, are they suddenly going to stop?

Vanita isn’t going to be there for ride-alongs, assuring that each one second tase gets its own use of force report.  All of this relies on cops on the street complying, changing what they do, what they’ve always done, and honestly reporting back that they are, or aren’t doing it.  How many reports should be anticipated that say, we broke your rules, over and over? Or will they just toss in language like “resisting” and “afraid” to cover the gaps?

The most serious use of force, a cop’s gun, is similarly subject to tough regulation:

Officers will not unholster and display a firearm unless the circumstances create a
reasonable belief that lethal force may become necessary. CDP’s policies will require
and training will teach proper techniques for unholstering, displaying, pointing, and
aiming a firearm, and for determining when it is appropriate. to do so. The Monitor will review CDP’s policies and training to ensure that they comply with this paragraph.

From this, two lessons can be derived for the Cleveland police. First, don’t pull a weapon unless you need to use lethal force.  Note the word “need,” rather than “can.” This doesn’t say that cops should unholster their gun just because the law allows it, but because it’s necessary.

But the second lesson is more cynical: If you pull your gun, say the magic words that it was necessary, that you feared for your life, then you beat the system.  Will cops learn the first lesson or the second? Hey, this is Cleveland.

Finally, the big question is what happens if the cops in Cleveland fail to play by these new rules?

DOJ acknowledges the good faith of the City of Cleveland in trying to address actions that are needed to promote police integrity and ensure constitutional policing. DOJ,
however, reserves its right to seek enforcement of the provisions of this Agreement if it determines that the City and CDP have failed to substantially comply with any provision of this Agreement.

If Cleveland cops continue to needlessly kill black men, then DoJ is going to take them back to court, where a federal judge is going to give the lawyers for the City a very stern talking-to, including the threat that further violations of the mandates of this agreement could result in yet another stern lecture.  Because what else can they do?

5 thoughts on “The Cleveland Caveat

  1. Bartleby the Scrivener

    How long do they have to implement these new policies? Even if one assumes the police will not violate any rights after these policies are implemented, do the people whose rights were violated before implementation have any recourse, or does the CDP get a free ride on them because they got a deal from the feds?

    At what point do we address the fact that the police are supposed to be protecting our rights from those who would violate them, instead of protecting those who have violated our rights (because they wear blue)?

  2. Bartleby the Scrivener

    When it comes to the government and the law, it would seem the law is a lot like the Pirate’s code in the Pirates of the Caribbean movies. I’ll leave the description to Captain Barbossa…

    “And thirdly, the code is more what you’d call ‘guidelines’ than actual rules.”
    -Captain Barbossa

  3. John Barleycorn

    Talk is cheap but the format is impressive even if the DOJ record is getting a bit scratched and grooved.

    I don’t know… too many carrots that can be used as sticks for my liking, but it’s a start.

    I am a little disappointed they didn’t throw in awarding gold stars for examples of the courageous use of patience and restraint in the pursuit of compliance but that’s just me.

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