Help the Cops Chill Out

How law enforcement can be made more compatible with Americans' liberty.

An Associated Press poll conducted last month found that the police killings of Michael Brown and Eric Garner, which led to protests in Ferguson, New York City, and around the country, ranked as the "top news story of 2014." Nevertheless, the issue of police brutality is not new and, despite the new interest from mainstream media, wasn't much of an issue in the 2014 elections, even locally.

Some of that was a function of one-party politics and incumbency. The St. Louis county prosecutor, Bob McCulloch, a Democrat first elected in 1991, was re-elected with no opposition. His conduct in the grand jury surrounding the death of Michael Brown shouldn't have been a surprise. In one of his first cases as county prosecutor, McCulloch defended cops who shot at two unarmed men 21 times because the victims were alleged drug dealers. Optimistically, it's not just police brutality that isn't a new issue but police and criminal justice reforms too. If the sometimes confused but widespread focus on the former can translate to enough interest in the latter, it could make 2015 the year of reform. Here are a few ideas that would help cops chill out:

Decriminalization of inherently non-violent behavior

Eric Garner's death at the hands of police trying to arrest him for allegedly selling loose, untaxed cigarette helped give birth to the "Black Lives Matter" slogan used by many protesters and activists. In response, police apologists bring up Pantaleo's black supervisor.

Pantaleo and the other plainclothes cops on that Staten Island street that day, in fact, were specifically ordered to crack down on the sales of loose, untaxed cigarettes. The sale of loosies is basically tax resistance. Dedicating plainclothes officers to target the loosie market, even under the pretext of the broken windows theory, seems questionable at best. Not all instances of excessive force by police end in death, but a lot begin as interactions over inherently non-violent behavior, like selling loose cigarettes, grilling on the sidewalk in front of your home, or, most likely, drugs.

Before Eric Garner, the most widely protested police killing in New York City was that of Ramarley Graham, shot after being chased over a small amount of marijuana. A grand jury indicted Richard Haste, the officer who shot Graham but a judge threw the indictment out because the prosecutor hadn't informed the grand jury that Haste was told by other cops that Graham might have a gun. Graham didn't have a gun but a second grand jury declined to re-indict Haste.

When I spoke to Bronx Councilman Andy King, who represents the area where Graham was shot and who attached himself to protests over the teenager's death, he flat out admitted that he believed if New York City police officers targeted more young white males suspected of making illegal drug purchases that would lend police activities in his community more credibility. King, like much of the establishment, Democrat or Republican, even in a "liberal" bastion like New York City, supports the concept of a war on drugs.

Yet prohibition of drugs creates the environment not just for a lot of the excessive force used by police but also the street violence that provides the political motivation for more police presence in the first place. Prohibition today, as it did with alcohol in the 1920s, excludes drug entrepreneurs from many of the avenues available to resolve business disputes and protect business interests legally. Ending drug prohibition would remove a lot of the incentive for violence, which would allow police resources to shift to other, inherently violent crimes. When your average young male, black or white, who may be profiled as a user of drugs, is no longer a low-hanging target of law enforcement, a lot of the potential for deadly police encounters can be removed.

Transparency and accountability through surveillance and oversight

Body cameras have been the it-thing for many of the people who started to focus on issues of police reform in the wake of Ferguson. Body cameras, as well as cameras on lapels and helmets, have been used in police departments around the country for years. Reportedly, the Ferguson police department had purchased body cameras before the shooting of Michael Brown but they weren't yet in use. And the Ferguson police department didn't even have dash cams, a type of camera that's become almost ubiquitous in American policing and which, when operating, can add valuable information to what happened in a questionable police encounter. Police are still resistant to dash cameras: WTSP in Tampa Bay found most law enforcement agencies in West/Central Florida didn't have them and that cops didn't want them. Neither, for example, does the city of Philadelphia have dash cams.

Body cams can add even more valuable information. The case for body cameras is a strong one; it provides an additional record of police encounter with "civilians," leading to less complaints about excessive force. But neither dash cams or body cams, alone or together, are sufficient to get transparency out of a police department. Video evidence, not from a police camera, didn't help a grand jury indict anyone in the death of Eric Garner. More troublingly, neither has the video evidence appeared to have led to any serious disciplinary measures against any of the police officers involved.

Transparency, and the accountability that's supposed to come with it, can only be achieved with effective, independent oversight of police. That's a difficult task. When Michael Bell's son was shot and killed by police in Wisconsin while he was handcuffed, Bell filed a lawsuit. After six years the city agreed to a settlement—one tool governments use to avoid police accountability. Bell used the settlement to lobby for an independent commission to review police shootings, and a new law was finally passed this April. When the mentally ill Dontre Hamilton was shot 14 times by Officer Christopher Manney, who was the third cop to respond to the same call about a man sleeping on a park bench (the first two found no problem with Hamilton and moved on), it became the first case to fall under the new review mechanism. Manney was cleared of all charges. The Milwaukee Sentinel-Journal found that half of the state agents, including the lead, on the investigating team were former members of the Milwaukee Police Department.

The Department of Justice (DOJ) said it would conduct a civil rights review of the Hamilton case. Through its wider "pattern and practice" investigations, the DOJ is often the best placed to impose any kind of substantive accountability on police departments. In recent years the DOJ has conducted investigations in Albuquerque, which is plagued by decades of unconstitutional policing, Seattle, Cleveland, Newark, Miami, and law enforcement and corrections agencies around the country and in overseas territories.

But the DOJ's abilities are limited too. Philadelphia's police commissioner, Charles Ramsey, asked for a federal review in 2013. President Obama chose him to chair a task force on 21st century policing. Ramsey has tried to fire Officer Thomas Tolstoy, a man accused of three separate sexual assaults. Because local and federal prosecutors couldn't build a case against him, union rules prevent Ramsey from having the final word on Tolstoy's termination. "I'm stuck with a guy who shouldn't be a cop," he said in August.

Limiting the power of unions to use public safety as leverage

When two New York City police officers were murdered in cold blood by a Baltimore man who had earlier that day tried to kill his girlfriend, the city's police unions laid the blame on Mayor Bill de Blasio (D), who had been reaching out to protesters demanding police reform, some of whom used violent anti-cop rhetoric.

"There's blood on many hands tonight," Patrolmen's Benevolent Association President Patrick Lynch said just hours after the horrible crime. "Those that incited violence on the streets under the guise of protest that tried to tear down what NYPD officers did every day. We tried to warn it must not go on, it cannot be tolerated. That blood on the hands starts at City Hall in the office of the mayor."

Police officers told each other they were on a "wartime" footing now. One said it was "open fucking season" on cops. Police officers turned their backs on de Blasio when he arrived at the hospital where the shot cops were taken. Even a few rookies did it at graduation. One happy byproduct of this ugly reaction is that police officers in New York City have cut back tremendously on "minor offenses" citations and unnecessary arrests, implementing the first, and arguably most important step, in getting cops to chill out.

Too often, however, police unions work to produce rules that protect bad cops. And they use their importance to "public safety" to extract concessions that may have been impossible in a free negotiation. Tolstoy, the Philadelphia officer accused of sexual assault, and other misconduct, is protected in part by union rules first negotiated under Mayor Frank Rizzo, a Democrat-turned-Republican and former Philadelphia police chief.

In New York, the state legislature passed a police discipline bill this summer would that move more of the power to discipline cops to unions and their collective bargaining agreements—it would restore, for example the 48 hour window in which cops don't have to talk about what happened in a shooting that's become so well-known it appears in cop procedurals. The bill received just two no votes in the Senate and the Assembly, and all the members of the Black, Puerto Rican, Hispanic, and Asian Caucus who were present voted in favor of it. Before policing became a national news story, Cuomo was widely expected to sign it with little if any popular resistance. The Brooklyn NAACP is calling on Cuomo to veto the bill, which would set up a fight this year if the police unions and their supporters try to introduce the measure in the legislature again.

In California, Steven Greenhut has written about the dubious means which one police union in Costa Mesa went to in order to target politicians pushing for police reform, including false accusations of DUI. Police officers rely on the respect of the community to do their jobs. Their reputations allow them to do good, police work. When police unions leverage that respect to create rules that keep bad cops on the streets, they foster an environment of unconstitutional policing. In Baltimore one cop who reported police brutality says he found a dead rat on his windshield and was told by one union rep to find a job in another agency.

When it's possible to discipline and terminate cops not just when grand juries indict them for crimes but when there's the appearance of misconduct and evidence of a pattern of misconduct, it's possible to restore constitutional policing. Otherwise the bad cops become a problem throughout the law enforcement system.