The Make-Believe World Of Police Policy

It’s somewhat painful to see sincere people put in a great deal of effort to fix a very real problem and not blindly root for their success.  It’s not that I don’t want them to be successful. I do. Really. It’s just that they lack the experience to appreciate that theoretical solutions that fail to take reality into account are doomed to fail, and that all their effort and good intentions won’t change reality.

Campaign Zero, the solutions wing of the Black Lives Matter movement (the real one, not the faux college microaggression movement seeking to usurp the serious problem of cops killing black guys with their hurt feelings over sandwich meats and mistaken word usage), is trying very hard to provide ways to fix the problem.

The effort is worthy of applause and appreciation.  The problem needs to be fixed. No, it’s not the only problem in need of a solution, and no, it’s not the only harm to black lives, or white lives. And it’s not even the problem that harms the most people. But it is still a terrible and inexcusable problem. And it needs to be fixed.

But will this fix it?

POLICE OFTEN KEEP USE OF FORCE INFORMATION HIDDEN FROM PUBLIC VIEW

  1. Baltimore, Houston, St. Louis, and New York police departments do not make their use of force policies available online
  2.  Many police departments redact significant portions of their use of force policies before making them public
  3.  Only three of the seventeen police departments in our analysis require police to report every time they used force, including incidents where police point a firearm at civilians.
  4.  Minneapolis, San Francisco, St. Louis, and Seattle police departments do not post police shootings data online. Other police departments, including Philadelphia and Houston, routinely refuse to release the names of people their officers kill.

Police use of force policies are the sort of stuff that seems very important, very real, to people who have never been in the trenches alongside someone who’s enjoyed a good tuneup by a cop for having a big mouth.  But they’re crap. Nonsense. A bunch of words on paper that no one gives a flying shit about on the street.  They’re the sort of thing that people who love officialdom agonize over, while the people, the cops, who actually make decisions couldn’t care less.

It’s hard to fault Campaign Zero for taking use of force policies seriously. What else would they do?  The unwritten rules of force can’t be addressed because they’re unwritten. The First Rule of Policing never appears in any official document.  Like the marketing material pasted on the side of cop cars, the “protect and serve” puffery, or NYPD’s CPR, “courtesy, professionalism, respect,” it provides a basis for outsiders to point at and say, “see? see?!?”

But cops just laugh at these well-intended but clueless efforts, because nobody takes them seriously. On the street, it’s one cop at a time, making one decision at a time, whether to be nice and respectful, or put a bullet in their head, or something in between.

Policies are words, aspirational words, constructed with the intention that street cops follow them to the extent that the vagaries of words have actual meaning.  But there is no policy that can inform a cop when he should be sufficiently afraid that he shoots before taking a bullet or blade.  There is no policy, nor will there ever be a policy, that will make a skittish cop die rather than take a life.

So is this going to change everything?

Police should have the skills and cultural competence to protect and serve our communities without killing people – just as police do in England, Germany, Japan and other developed countries. In 2014, police killed at least 253 unarmed people and 91 people who were stopped for mere traffic violations. The following policy solutions can restrict the police from using excessive force in everyday interactions with civilians.

They “could” restrict police from using excessive force, but they won’t.  It’s not that your policy initiatives are bad or wrong, although many are already in place and don’t do squat.  Why? Because they’re the official version of what cops are supposed to do, replete with the usual wiggle words that allow a cop to utter “but my life was threatened” and have his bosses reply, “well, then, that changes everything.”

But more to the point, these are policies.  You’re not lawyers, so you can be forgiven for not understanding that policies are nothing more than internal employment rules by which employees are supposed to handle their job.  The remedy for a violation of policy is employment discipline, maybe even getting fired.

But when the option is risk getting fired or risk getting killed, no cop on the street will ever let policy get in the way of his making it home for dinner.  And, truth be told, as long as the other cops watching don’t say anything, they won’t stop a cop from smacking around some kid for “interfering with his command presence.”  Cops, you see, have a lot of experience coming up with jargon and excuses for doing whatever they please, whatever they’ve always done, whatever they want to do.

Hell, even when it’s on video for all to see, they can usually squirm their way out of it with some fancy footwork and a few trite phrases.

Now if your efforts and good intentions were put to changing the law about how police conduct was excused after the fact, so that the dreaded “Monday-morning quarterbacking,” oft-ridiculed but used for every other person in our society to determine whether their conduct violated the law, it might have some impact.

But even a seismic shift in the law comes after the fact, after there is a dead body lying in the street, a kid walking to school who gets tossed against a brownstone wall so the cops can check his book bag for weed or a gun.

This is a product of cop culture, the unwritten “policies” that really control how police behave on the mean streets, to real living people, and why harm happens despite the sweet words that police policies would seem to require.  The greater the well-intended focus on matters like written policies, the less appreciation there is that you’re obsessing over nonsense while the real reasons harm happens are ignored.  It’s got to stop, but changes in policy won’t accomplish changes in how cops behave on the street.

The harm happens in the street, not in official meetings, and fighting over the language of policies won’t save anyone’s life.  If saving lives is the point, then focus on the place where it’s happening, and forget about tweaking the official public relations crap.

 

32 comments on “The Make-Believe World Of Police Policy

  1. William Doriss

    Powerful stuff for a Tuesday morning. Now let the comments roll!
    The coffee was strong this morning.

  2. EH

    In the long term, the most relevant one may be
    “Only three of the seventeen police departments in our analysis require police to report every time they used force, including incidents where police point a firearm at civilians.”
    If you have body cams and mandatory reporting (and some teeth for violations), you get data. Eventually–though it may be years or even decades–that data can be used to try to change things.

    1. SHG Post author

      Yet again, the least knowledgeable person is the first to feel compelled to express an opinion. Well done. At least you show the germ of recognizing the pointlessness of your comment, even if it didn’t stop you from writing it.

      1. EH

        Least knowledgeable? About data sets and the long term benefits of data collection? I doubt that.

        In any case, accurate information is a good seed for (slow) change. You may be too obstinate, or untrained, to see why. It’s still true, though.

        1. Patrick Maupin

          > accurate information is a good seed for (slow) change

          Absolutely true! For example, the stunning mortality reduction since we learned about germs and hand washing 170 years ago means that today, only about 100,000 Americans a year die because their doctors couldn’t be bothered.

          Imagine how bad it would be if doctors didn’t know the right thing to do!

          1. SHG Post author

            EH is correct, but his focus on accurate information completely missed the point. He focused on the piece that he’s most comfortable with, while ignoring the piece that matters. People who like stats think stats are a goal in themselves. People who want to stop dead bodies in the streets aren’t really concerned with collecting numbers for a longitudinal study, because we can already count the dead bodies in the street.

            It’s not a “good seed for (slow) change.” It’s masturbation by people who want to twist this situation to become all about the stats they love because they’re impotent to address the dead body problem.

  3. Peter Orlowicz

    I can’t speak for Campaign Zero, but from my perspective revising or reforming written use-of-force policies is an element of the fix, not the whole thing; necessary but not sufficient. As far as I’m concerned, if we can fire police officers who use deadly force excessively, that’s a good result. I don’t care if they’re not prosecuted, if they’re just no longer cops (and don’t get re-hired by the next jurisdiction over). Making written use of force policies public at least gives some tools to police chiefs or discipline boards who want to do the right thing* in getting rid of bad cops, and enables the public to (try to) hold those chiefs and boards accountable. Yes, they’re still vulnerable to hand-waving after the fact and squishy “I felt threatened” assertions, but it’s MUCH easier for the investigator to determine a shoot didn’t violate any department policy if no one outside the police department even knows what the policy is. We may not be able to easily change the Constitutional standard for whether a shooting was excessive or justified, but individual departments can impose a higher standard through departmental policies if they choose to. Then, you can still fire an officer for violating the policy.

    All this is to say that clear and enforced written policies are important steps toward changing the unwritten rules and culture that we’re concerned about. It’s easier for that kind of environment to flourish when the unwritten rules aren’t in direct conflict with what’s in the personnel manual. Sure, cops who really believe their lives are endangered will abide by the First Rule of Policing, but at least the ones who exercise that judgment poorly can be fired and not get to make the same mistake twice (or five times, or what have you.) That applies with equal or greater force (no pun intended) to a whole range of cases where the force used by the cop is excessive, but not deadly (Sureshbhai Patel comes to mind.)

    *Yes, this is the huge caveat to the entire comment. Nothing here is going to help Chicago or New York fix their departments when the administration or investigative departments are actively trying to cover up misconduct, never mind the average street officer.

      1. Peter Orlowicz

        Well, bad policies or nonexistent policies make it a lot harder to fire bad cops, even when there is desire to do so. Again, necessary but not sufficient.

        1. SHG Post author

          It has nothing to do with policies. Try collective bargaining.

          None of this is to suggest that police departments shouldn’t have better, or dare I say it, good, policies, but they’re to suggest they’re merely “not sufficient” is naïve. They’re damn near worthless, except as PR.

          1. Patrick Maupin

            Collective bargaining is indeed the elephant. So big that some can’t even notice it and others don’t dare talk about it. Here’s to Friedrichs v. California Teachers Association — a necessary first step to start shrinking that bad boy down to size.

  4. JAV

    So we need good PD policies. A new police culture that is willing change itself and change its current relationship with the public is also laudable. If I’m reading you right, none of it has any teeth without some kind of criminal liability* to make the bad guys know that their actions are truly unacceptable. For example would a good start be confronting the court’s current, and very forgiving definition, of the “Reasonable Officer”?

    *Civil liability is certainly there, but considering that Chicago has paid around a half a billion dollars in police settlements the past decades, it’s failed as an incentive to reform.

  5. Francois

    There is something I do not understand. If these policies are useless except as PR, why are so many of them kept secret or redacted? If they could create some illusion of transparency and improve their public image by publishing these worthless policies why don’t they do it? Unless I’m missing something, I think these policies do help to make the police a little bit more accountable. If nothing else it forces them to better explain their actions when they do something disturbing to the public. The more they have to explain their actions, the less they will want to do things that can raise questions.

    1. SHG Post author

      Yes, that’s why cops in Chicago, where many of the preferred policies are already in place, aren’t busy killing kids, concealing videos, not prosecuting cops, engage in secret interrogations/beating and covering up murders. That must be the part you missed, where these policies make the Chicago police “explain their actions.”

      They don’t redact the policies. They withhold info. And they withhold it regardless of policy, because the policies are nonsense intended to fool the gullible who believe in such nonsense as policies and think they will make police “explain their actions.”

      The point is there is nothing wrong with good policies (certainly better than bad policies), but only someone who is totally clueless thinks they will fix anything. That they will change use of force by cops is absurd.

      1. Francois

        My question was not so much about the impact of the good or bad policies themselves, but why they are kept so secret in many places, along with use of force information. I mean the policies actually exist; asking for them to be made public is reasonnable (you say here they don’t redact the policies, but point 2 quoted in your original post says they do in many places). If the policies are intended to fool the gullibles, why are they shrouded in so much secret? As others have said, I think increasing transparency is necessary but not sufficient.

        1. SHG Post author

          Rarely are they “shrouded in secrecy,” and the examples of redacted used are from FOIA requests, where they redact them not because there’s any big secret, but because they hate FOIA requests and are allowed by law to do so. But your focus on the policy completely ignores the point, that the policies don’t dictate what happens on the street, making them irrelevant. Having great, fully transparent policies won’t stop a cop from killing anyone.

          You’re making an illogical connection by thinking, “they must matter if they won’t be transparent.” No, they hate getting nailed by their own words, as that means they have to come up with different excuses. But they will. And they do. And no policy will stop a cop from pulling the trigger if he decides to do so. Yes, they should be readily transparent, but this is neither the problem nor the solution. It’s the sort of collateral nonsense that people who don’t know any better find interesting. Nothing more.

          Sorry that this is way outside your sphere, but this is a blog for criminal defense lawyers, and it’s just not a lot of fun explaining this basic stuff to people who know nothing about it.

          1. Francois

            OK, thank you for taking the time to elaborate. As a layperson, I find your blog informative but I will leave the comments section to the criminal lawyers.

            1. SHG Post author

              I sincerely apologize for being condescending about this. Your questions were fair and well-intended, and I shouldn’t have blown you off so tersely. There were a lot of really stupid comments yesterday, and I grew tired of them. That wasn’t your fault, and I should have taken it out on you.

  6. Sgt. Schultz

    I hate to be the one to break this to you, but the comments today are awful. They’ve been pretty bad for a while now, between the non-lawyers (including the seriously insane) and the civil lawyers who can’t control their need to make sure everyone know they haven’t got a clue, this is getting bad. I suspect the reason CDLs aren’t commenting is because they want nothing to do with your nutjobs and morons.

    Think about it. Time to pull the plug ?

    1. SHG Post author

      Yeah, it’s been less than interesting for me as well. I think you’re right. It’s time to do another major housecleaning.

    2. Peter Orlowicz

      I’ll have you know I’m an administrative law lawyer, not just a civil lawyer. Harrumph. I did work with police officers for five years before law school, though. No, I wasn’t a sworn officer.

  7. William Doriss

    Criminal Defense Blog, yes, but nowhere in the essay are the words criminal defense, lawyer, prosecutor, judge, defendant, appellant or court mentioned. It’s all about the disconnect between written, theoretical policing policies nationwide and boots on the ground. The host has repeatedly gone astray on some of these cop topics and incidences over the past year or so based, we assume, on an epidemic
    of unwarranted murders-by-cop and excessive use-of-force incidents. It’s not as if these things never occurred before, but nowadays these abuses of power and authority are being caught en camera, often by amateurs, and broadcast for the whole world to see. The public-at-large is becoming increasingly sensitized and outraged. As is entirely proper that it should.

    Is that a fair summary? Add to the above, the fact that the forum here is ostensibly open to the public, and this is what you get. It’s not an exclusive club, although sometimes we wonder? Mr. SHG has created an online entity of enormous popularity. It’s akin to a company or an enterprise. Whether it is profitable or not is irrelevant to the enterprise. It is his job to moderate the tedious avalanche of stewpid and irrelevant comments for moderation. If he gets tired of repeating himself and educating the ignorant amongst us, well that is his problem. The question arises: What would happen if Mr. were to disappear from the scene, or quit? Who would keep the enterprise going? Could some other qualified person or some committee of SJ devotees maintain a record of high achievement?

    Steven Jobs was removed from Apple and the company slogged along, (until he was invited back). Bill Gross, founder and president of PIMCO, was fired by the Board. He managed to find other employment, and PIMCO has survived quite well, thank you. Here, we have a one-man band. You do not tell the conductor how to conduct the orchestra, and you do not tell the captain how to sail the ship.

    We take on Sgt. Schultz today with fear and trepidation. We find his comments leaning toward the ad hominem, which is normally frowned upon, and offensive. The irony here is that he is the one who deserves be culled from pack. We cannot recall one comment where he has contributed to the dialogue. He is always criticizing some other commenter as dunderhead cum meatball. Contrary to Schultz’s take here, we find the thread par for the course. It stuck to us for the day. If the CDLs boycotted the entry here–stayed away in droves–well perhaps there was nothing for them to comment on. Perhaps the host said all there was to say, without argument, and it’s a done-deal. You, Sergeant, are the thorn in the side. You rock the boat, make waves and cry like a baby. (Hopefully, you’re not a real sergeant; perhaps a sergeant in your own mind,… or a former one.)

    1. SHG Post author

      People are interested? That’s a good thing. But the disconnect is you think this makes it my responsibility to teach Crim Law 101 to anyone who shows up. It’s not. At the top of the page, it says that this is a criminal defense blog. It has since day 1. That’s all the warning I need to give.

      As for Sgt. Schultz, I know him and choose to allow his comments, just as I choose to allow some of yours, even though they tend to be batshit crazy. The only criteria is my decision. SJ isn’t a democracy or a public benefit blog. It’s mine. Totally, completely, entirely mine. Anyone who finds my choices unacceptable is free to start their own. My job here is whatever I say my job here is. And when the burdens of dealing with the demands of others become more than I care to deal with, poof.

      1. William Doriss

        Do not give up the ship, puhleeeze. You are doing a heck of a job, in spite of your occasional hissy fits. (Which we find amusing, FYI.) Finally, you did not read my comment; you merely skimmed it. Ha.

        1. SHG Post author

          I don’t care if you think I’m doing a heck of a job or having occasional hissy fits. I especially don’t care if you find them amusing. This isn’t about what Bill thinks. Is that not getting through?

          And I skim most comments. People write long, prolix, incomprehensible comments all the time. I don’t find it a good use of my time to read them all the way through. Neither do most other people. You may feel the need to write a long comment. That doesn’t mean anyone else feels the need to read it.

          1. William Doriss

            So now we know! You DON’T read all the comments. Some of us, on the other hand, read your essays carefully, if we choose to read them at all. I don’t skim them; I read them. There’s a difference. I might read some of the comments first to see if I’m really interested,… putting the cart before the horse. But that’s me.

            This is funny because it’s tantamount to a cop arriving at a call and “skimming” the situation instead of “reading” it, metaphorically speaking; since we know a lot of cops cannot read or write. Not too well, anyhow. By skimming an unfolding situation, they might mis-perceive the danger, or lack thereof, and make a mistake which costs somebody his life. It’s exactly the same-a-thing.

            It’s a mystery why we give some of the least intelligent amongst us a badge and a firearm, but that’s a topic for another day. So we’ve devolved, thru the use of technology, fast cars and heavy firepower, to the point where the world is full of skimmers and scammers. Wall St. and D.C. are no exception. We find them there as well. Over and out,

            1. SHG Post author

              Your comparison is flawed, Bill. You choose to read SJ. I read your comments only because they appear here. I don’t go to your house to see what you have to say. As you know, since I’ve asked you to remove me from your mass emails, I don’t read them. That I allow your comments to post if they’re even remotely comprehensible is a courtesy. Don’t be unappreciative. If this bothers you, don’t comment.

              But we are not comparable. Nor is it anything like cops “skimming the situation,” which is an excellent example of some of the lunacy contained in your comments. Over and out.

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