When Police Kill • Policing Without Permission

When Police Kill

Michael Brown’s burial, August 25, 2014 (Richard Perry/The New York Times)

Two Books Argue the Case for Police Reform From Within

It is, to hear the new president’s posse tell it, an exceptionally dangerous and thankless time to be a police officer in the United States. In the streets, we are told, there is a “war on cops,” fired up by the activists of Black Lives Matter. In the corridors of Washington, liberals want to deny law enforcement the powers they need to keep us safe. The media runs endless video loops of a few police shootings of civilians, and the Justice Department nannies swoop in to take charge of this most local of public functions. Facing harsh scrutiny, demoralized cops hesitate to do their jobs — a phenomenon called “de-policing.” No wonder some police forces are having a hard time recruiting.

Two legal scholars challenge that bleak portrayal with timely, book-length arguments that, in fact, police have been given more power than they need, have too frequently abused it, and are the least accountable of our public servants.

Now two legal scholars challenge that bleak portrayal with timely, book-length arguments that, in fact, police have been given more power than they need, have too frequently abused it, and are the least accountable of our public servants.

In Donald J. Trump’s law-and-order world, these assertions may be dismissed as the products of progressive academic hothouses (Franklin E. Zimring teaches law at the University of California, Berkeley; Barry Friedman at New York University), but they come from reputable scholars, armed with facts and respectful of good policing.

Zimring’s book, “When Police Kill,” is essentially a 300-page riff on a single statistic: Roughly 1,000 Americans die each year at the hands of the police.

There are several remarkable things about that number. First, it is about double the official counts by agencies of the Justice Department, an extraordinary margin of error for something so important. (The higher, and now generally accepted, estimate of deadly encounters comes from investigative reporting by The Washington Post and The Guardian.

The paucity of good official data as a policy-making handicap is a major theme in both books.) Second, the civilian body count does not seem to be declining, even though violent crime generally and the on-duty deaths of police officers are down sharply. Third, as in so many aspects of criminal justice, violence by police and against police are orders of magnitude greater than in other developed countries. (Credit our promiscuous affair with handguns.) Fourth, police kill African-Americans at more than double their share of the population, a phenomenon Zimring painstakingly demonstrates is not explained by higher crime rates in black neighborhoods. Zimring calls this “a civil rights crisis that nobody had seen on the horizon” — until the anger that boiled up after the 2014 shooting of Michael Brown in Ferguson, Mo., and the subsequent cases recorded on bystander video. Fifth, about 400 of these targets of deadly force carried no firearm, and more than 100 had no weapon of any kind. Sixth, the average number of those 1,000 deaths per year that result in felony convictions of a police officer: one.

Zimring’s most explosive assertion — which leaps out of a work that is mostly policy-wonk nuance — is that police leaders don’t care.

“The circumstantial evidence suggests that police departments do not regard whether the victims of police shootings live or die as a matter of great moment,” he writes. Zimring argues that unnecessary deaths are excused by rules of engagement that encourage cops to keep firing after a suspect no longer represents a real threat, and by fake science, like the “21-foot rule,” which holds, on the basis of no credible evidence, that a subject with a knife represents a lethal menace if he gets within 21 feet. The default assumption is that a perceived threat is real and a police killing is righteous. To Zimring’s point, the F.B.I. compiles its unaudited reports of these deaths under the rubric “Justifiable Homicide, by Weapon, Law Enforcement.”

Barry Friedman’s broader and more accessible book looks beyond the lethal use of force at the many other ways the Fourth Amendment protection against “unreasonable searches and seizures” has been ignored or stretched in the name of public safety. The long-established litany of invasive policing practices — SWAT teams, stop and frisk, sobriety roadblocks, airport security, CCTV cameras, use of informants — is steadily being expanded by technology to include license-plate readers, “Stingray” cellphone interceptors, facial recognition software, warrantless collection of metadata and archives of DNA samples. Friedman’s case — illuminated with stories of hapless civilians encountering excesses of force or surveillance — is not that police should be denied the best tools, but that there should be clear rules. More often than not, the rules are ambiguous, the prosecutors are reluctant to pursue excesses because they have a symbiotic relationship with police, and judges have hesitated to apply the Constitution to perplexing questions raised by new policing capabilities. Does using an infrared heat detector to discover a pot farmer’s basement grow lights constitute a search? What about attaching a GPS device to a suspect’s car?

“The authority to use force on citizens and to conduct surveillance of them — the powers that define policing and set it apart — may be necessary to maintain order, but those are the most awesome powers we grant any public servants,” Friedman writes. “We have categorically failed to offer clear guidance to policing agencies as to what they are to do (or refrain from doing).”

Friedman and Zimring say the solution to abusive policing is not ensuring prosecutors and grand juries are more independent (though they favor both). Nor should we expect an easy fix from body cams or “community policing” strategies that attempt to turn police into neighborhood ombudsmen, a job for which they have neither the will nor the training. Ultimately both writers look to police leadership, noting that the blue culture will not be moved by reforms imposed from outside.

“The main arena for the radical changes necessary to save many hundreds of civilian lives . . . is the local police department, not the federal courts or Congress, not state government, not local mayors or city councils, not even the hearts and minds of the police officers on the streets,” Zimring writes. Courts and legislatures can bring pressure to bear, but “until police departments become willing to spend time, money and management effort on resolving conflicts without killings, nothing significant can happen.

“Yes, the police,” Friedman agrees. “They are, after all, the experts.”

Friedman, who is a constitutional lawyer, puts much of the blame on courts for failing to demand that police show probable cause and obtain warrants, and more generally for letting police invade our privacy in new ways without a prerequisite of open, democratic debate. But the ultimate culprit is us.

“What’s notable is that when there is transparency, when public dialogue occurs, policy unequivocally does change,” Friedman says. He illustrates with examples of communities where media-fueled public engagement led to regulation of Stingray cellphone intercepts, body cavity searches, the militarization of police arsenals, and stop and frisk.

The get-tough bluster of the new administration notwithstanding, there are plenty of police leaders who will concur with much of what Zimring and Friedman say. In the more enlightened police training academies, the mantra is that cops should see themselves as “guardians,” not “warriors,” and there is an increasing emphasis on de-escalation over confrontation. But these will remain exceptional unless the public demands better.

To paraphrase the French philosopher Joseph de Maistre, every country gets the police it deserves.

Bill Keller
The New York Times

Bill Keller is editor in chief of The Marshall Project, a nonprofit news organization focused on the American criminal justice system. He is a former executive editor of The Times.