CommentsGELFAND’S WORLD--We’ve experienced two weeks of protests and marches demanding that American cities and police forces reform the way they treat people.
In particular, the way Black Americans have been surveilled, stopped, talked down to, frisked, beaten, and killed has been the core issue. In recent articles, I’ve wondered about the scope and extent of the potential for police reform, which is the subject of this discussion.
I’d like to acquaint you with a press release and video from an Atlanta law firm that shows quite graphically what it means to suffer police violence. In particular, I ask you to look at the video which is linked in the story you will find here. The press release describes an encounter in which a young, African American man has been driving his car and discovers that he is being followed by another car – and this may be important – the car is not marked as a police car. The press release is a bit vague about what the driver has been doing, or why the police in the unmarked car decide to pull him over. Perhaps they had reason, perhaps they didn’t, but the violence that then ensues is scary.
As you can see in the video, the police order the driver to pull over and repeatedly shout at him, using profane language: “Get out of the fucking car! Get out of the fucking car!” When he does get out of the car, one of the police seems to be touching him, and he briefly shrugs off the touch. And then it happens.
A different police officer later identified as Donald Vickers comes charging out of the dark night, hits the driver with a hard tackle, and brings him to the ground. That tackle, it turned out, broke the driver’s ankle. As the video shows, there didn’t seem to be any reason for such a violent physical assault. The driver was not throwing a punch, or trying to escape, or reaching for a weapon. Basically, he shrugged off the other person’s hand, the normal human reaction to being grabbed, if you can believe the evidence of the video.
But it gets much, much worse. We have additional footage showing the officers demanding that the driver walk (where they are all going, we are not sure), and he falls down in obvious pain at least twice. During this interval, the officers are mocking him and laughing at him.
The video shows x-ray evidence that the ankle was, indeed, fractured, and further indicates that the injury required emergency surgery (which involved cutting open the man’s foot, inserting a metal plate, and attaching it to the bone remnants with metal pins).
At the time just following officer Vickers’ flying tackle, we hear a policeman’s voice telling the injured driver (now on the ground): “You do not swipe my hands from me, do you understand?”
Aside: The annals of recent police interactions are full of unspoken rules about physical touching. The suspect is not allowed to resist in any way, even if the officer is twisting his arm painfully, but at least in this instance, the act of touching an officer is deemed to be subject to some pretty severe corporal punishment.
It was a pretty ugly scene, and it says quite plainly, in deed if not in word, that we Americans live in a country where the police power is quite substantial. After all, if the only acceptable response to a police stop is to accept whatever they hand out to you, and that includes the prohibition of reacting in a normal reflexive manner to being grabbed, then we aren’t as free as we perhaps thought we were. The only substantive difference between nowadays and an early nineteenth century naval vessel is the absence of flogging.
Added to the issue is the widespread understanding that violent encounters such as these are much more likely to happen to African Americans than to whites. That does not mean that they don’t also happen to whites and that reforms to the way police act towards all Americans may be in order. But the killing of George Floyd and the attack on the man called Tyler Griffin in the above linked video are, or at least ought to be, eye openers to all Americans.
The limits to the so-called defunding of the police
When the first protests over Floyd’s death began in Los Angeles, many of us saw on live television the organized looting of numerous stores. As of this writing, it is being revealed that thousands of doses of opioids were among the items taken in those attacks. We are aware from eye witness testimony that there were overtly threatening moves made towards bystanders who attempted to get license plate information or the like.
In short, there are bad people in the world, and no matter how well meaning the rest of us are – as surely the main contingent of the protest marchers were – we as individuals and our society as a whole require protection against the bad guys. For this, a police force is necessary.
The scope of reform and the concept of a reform movement
But what shall that force be? It’s not an easy question, unless you adopt the default position that everything should stay pretty much the same as long as we toss in a few symbolic gestures that will be called “reform.” I would like to think that this is not an acceptable end to the current protests. Something better is required. Still, there is a wide range to the sorts of reforms that are being proposed.
The most dramatic – you might say radical -- demand is for wholesale dismantling of specific police departments. Alex Pareene, writing for the New Republic, mentions Minneapolis, Chicago, and Baltimore specifically. This suggestion may be a little surprising to fans of television cop dramas, but if you are going to go this route, that might be the way to start.
The problem with police abolition fantasies is that you have to replace the department with something. In the case of the Minneapolis force, there may already be a theoretical framework for that replacement, but getting rid of the Chicago PD seems about as likely as getting rid of patronage in the Windy City. Those of us who think of politics as the art of the possible won’t be taking a lot of time indulging such fantasies.
Possible levels of reform, taken in order
Much of this discussion stems from a long debate that was held at one of our local neighborhood councils just a few nights ago. The subject of contention involves what we referred to as “the duty to intervene.” The concept is simple in theory, but as you will see, there are complexities in practice.
The idea is this: Any police officer who observes excessive use of force by another officer or officers (even his or her own partner) should be required to intervene to make it stop. The three other officers present at the killing of George Floyd should have stopped it. The duty to intervene makes it a legal requirement that a peace officer actively resist such action, so if that policy had been in place in Minneapolis a month ago, Floyd’s life might have been spared.
We’ve had lots of other examples of massive use of force that didn’t go as far as killing the suspect. In Los Angeles recently, one cop beat a suspect repeatedly with his fists, to such an extent that the tv news stations saw fit to run it repeatedly. The case in Atlanta linked to above is another example that went beyond a senselessly violent act and continued in gratuitous sadism, as the police officers mocked and laughed at their prisoner. In every one of these cases, there was a breakdown in civilized behavior, and some rule or principle or tradition should have screamed out for the officers to stop, and it should have been up to the others to force the issue.
Under current practice, it can be a career ending move for one police officer to attempt to intervene in the actions of another. One such case goes back to 2006, where one officer intervened when her partner was using a chokehold. “But Horne was fired for intervening and did not qualify for her pension, the city said. ‘The message was sent that you don't cross that blue line and so some officers -- many officers don't,’ said Horne in an interview Tuesday with CNN's Brianna Keilar.”
What happens when a rookie is faced with his senior (or training) officer doing what Chauvin did? At what point must you decide that you, just out of training, know more than somebody with 19 years on the job?
The standard response to these sorts of atrocities is that there should be better vetting and training of the officers who will go out on patrol and train the rookies. We hear a lot of comments about psychological testing. There is even a point to the idea that the discipline required of military personnel becomes a virtue in everyday policing.
But what of now, and what of those occasions when things go wrong, and an officer is faced with a massive overreaction by his partner?
The duty to intervene as a potential policy
A few days ago, the Los Angeles County Board of Supervisors were contemplating creating a rule that would require officers to intervene when they see excessive force being used. It is not clear where the Supes will go with this discussion, but there will be a lot of citizens (of all races) rooting for just such a resolution. The underlying principle is sound: If you are a sworn officer of the law, then it is your duty to uphold the law, even when that involves preventing your fellow officers from doing violence.
In practice, the interpretation of this rule would come down to questions of exactly when the reasonable use of force becomes excessive use of force. We can at least imagine that a policy like this would have provided a different result when Rodney King was beaten or when George Floyd was strangled.
Let’s see if the Supervisors can get up the grit to pass a rule making intervention a duty rather than a danger to your career. But the new rule would have to be backed up by additional rules and procedures which would protect an intervenor from retaliation. That part is going to be a lot harder, because it requires the leadership to actually lead.
The corollary: the right of the bystander to intervene
Suppose one or more bystanders had intervened when George Floyd was being kneed to death. What would the result have been? Floyd might have been saved, but for sure, any such bystanders would have been arrested and charged with some pretty heavy stuff including obstructing officers in their duties.
“You’re killing him.”
“Get back on the curb and shut up or you’ll be under arrest.”
The right (or even the duty) for bystanders to intervene in a police action is not something we are likely to read about in the coming weeks. It’s simply too radical, a step too far. But what of the numerous instances (such as the violent tackle described above) that represent clear and direct corruption on the part of the police? At what point is it such a moral imperative that normal people would and should attempt to intervene in a police action? There could potentially be an affirmative defense based on clear and outrageous conduct by the police.
If nothing else, bystanders should be encouraged to make videos on their cell phones, and it should be entirely proper for them to yell out to the police to calm down and stop what they are doing. Not only that, but the existence of such comments should be admissible as evidence in lawsuits against the city.
An even more radical reform: An affirmative defense to resisting arrest
This goes even a step further. What of the arrests that are purely gratuitous, that are unfounded or so marginal as to be indefensible? Right now, the only remedy for the unfairly arrested person is to take it through the legal system. We’ve seen lawsuits over false arrests when the “arrest” is by a store guard, but what of those few arrests that are entirely unwarranted? Can there ever be a legal defense to resisting the attempt by a badged police officer to make an arrest? It would certainly require a substantial reevaluation of the relationship between the police and the rest of us.
The right to talk back
If we really take the First Amendment seriously, then bystanders and even those being questioned by the police ought to have the right to talk back, to comment, and to peaceably protest. The police seem to worry more about losing control of the situation than about protecting the Constitution, but there ought to be a principle that gives people the same right to criticize the police – in public, in the heat of the situation – in the same way we have the right to criticize politicians in the act of lawmaking.
The right to talk back does not apply to those who are actually under arrest, but it ought to apply to everyday encounters among those being questioned and those who observe.
The right to be left alone, and an additional radical proposal
The basic principle enshrined in a lot of the Constitution is the right to be left alone. The police can’t just break into your home without cause, and they shouldn’t be allowed to stop you and put their hands on you when you are out walking and minding your own business. The police should not be allowed to touch you without either your consent or in the presence of substantial cause.
Kevin Drum has suggested another remedy of a different sort: Traffic enforcement should be left to a different group of people who are not, strictly speaking, the police, but rather just traffic enforcers. The police could, of course, stop cars when there is substantial reason – in other words, in the context of law enforcement. This idea has its plusses and minuses, but is worthy of a pilot project.
(Bob Gelfand writes on science, culture, and politics for CityWatch. He can be reached at [email protected])
-cw