All across America, cop-watchers like Austin’s Peaceful Streets Project shine a spotlight on police malfeasance by organizing to record the police. Catching cops behaving badly on camera has proven a powerful way to draw public and official attention to systemic flaws in policing. While cop-watchers catch cops engaging in misconduct and harming citizens, the abhorrent police actions they capture on film are merely the tip of the iceberg. Law enforcement agencies sworn to uphold the constitution are, in far too many cases, violating the civil rights of law-abiding citizens as a matter of policy and practice. Police officers cannot be rightfully blamed for doing what “We the People” have asked them to do.
The problem is: For the most part, “We the People” aren’t involved in deciding, or really aware of, what peace officers are asked do daily in America’s 15,000 plus law enforcement agencies by policy, practice, and statute. Cop-watchers’ ad hoc efforts to flex their constitutional rights, bringing real-time transparency and accountability to the police on their streets, are demonstrative of the ultimate institutional fix for American policing: a healthy dose of Representative Democracy in action.
Often, harmful behaviors perpetrated by cops are “lawful but awful,” the result of ill-considered or non-existent policing policies and practices (Stamper). “Bad apple” cops, as Dallas Police Chief U. Renee Hall dubbed them in a recent Texas Tribune Festival interview, comprise about five percent of her force, by her own estimate. The problem, however, isn’t just the “bad apple” officers. The root of the problem can be traced to flawed policing policies and practices, like those that sometimes render it difficult or impossible for law enforcement leadership to remove what Chief Hall terms “bad apples” from their ranks. In To Protect and Serve: How to fix America’s Police, retired San Diego and Seattle Police Chief Norm Stamper calls current police culture a “rotten barrel” environment in which “a fresh, healthy apple will quickly turn…”
Like Chiefs Hall and Stamper, I strongly support peace officers while acknowledging systemic problems in policing, “bad apples” and “rotten barrels,” that leave too many good citizens feeling unsafe in the presence of those employed to protect and serve their communities. I served on the Board of Directors of Brazos County Crime Stoppers with Sheriff Chris Kirk in 2004. It makes me proud to see the logo I designed for the organization affixed still to Brazos County law enforcement vehicles and featured in their print and television ads. I really enjoyed my time serving on the board with Sheriff Kirk, an exemplary community leader and peace officer.
Not all law enforcement officers are as good as Chiefs Hall and Stamper or Sheriff Kirk, as we the people see far too often in “yet another” police misconduct story that makes it from the social media feeds to mass media reporters. As a reporter, I’ve personally been part of such a police misconduct story. I had obtained documents indicating that Colin Owen, Chief of the Milano, Texas Police Department, had been terminated from his previous law enforcement job as a Hays County Sheriff’s Deputy for policy violations, use of force, and lying. I telephoned asking Owen if he cared to comment. Chief Owen’s recorded response was a threat to swear out a bogus warrant and “personally go pick you up and place you in jail.”
“The DA may choose to drop it later,” Owen threatened, “but until that point comes, you will be at least in jail for the night.” While the threat of false arrest and trumped up charges was meant to thwart my efforts and intimidate, it instead served as impetus to commence a personal quest to understand the problems in American policing and become part of the solution. I do not purport to offer a fix for systemic problems in policing. I only to point to evidence that cop watching, and the transparency and public control it brings to the table are powerful tools. They offer our best hope to fix the “bad barrel” culture that is allowing too many “bad apple” cops to be placed in positions where they inflict what amounts to state-sponsored terror on those they are officially tasked to protect and serve.
“Bad Apple” Officers: The Tip of the Iceberg
“Too many cops are simply uncharged murderers” (Spence). Extreme words. USA Today readers might assume they came from the lips of a radical, anti-police activist. Actually, they comprise the central claim of a well-reasoned argument advanced by famed attorney and author Gerry Spence in his USA Today article headlined “How do we identify killer cops?” The “16 bullets fired in about 15 seconds” by Chicago Police, the bullets that felled innocent 17-year-old Laqaun McDonald, are the opening evidence Spence presents to his audience of people not predisposed to equate “cop” with “killer” (Spence). The talented trial lawyer then continues to fire off details of the in-custody deaths of Eric Garner, Walter Scott, and Freddie Gray as evidence attesting to a pattern of police violence. Spence’s words paint a picture of what life and death is like for the “poor, black and… powerless” victims of police violence. Taken in totality, the four police-caused deaths Spence chronicles provide strong reasons to believe that deadly systemic problems exist in policing.
While some “bad apple” cops are violently taking lives, others are engaging in policing practices that rob innocent citizens of the peaceful, happy lives to which they are entitled as law-abiding citizens, one tortured year at a time. According to The National Registry of Exonerations “19 percent of all exonerations in the United States—and in 34 percent of homicide exonerations—the innocent defendant confessed or was implicated by a false confession of a co-defendant, or both.” Since their inception in 1989, the society has recorded 2,130 exonerations, 18,590 lost years. Police State: How America’s Cops Get Away With Murder, Gerry Spence’s most recent book, points to these exonerations as evidence of “innocent men and women…charged with crimes, sentenced to prison, and later had their convictions overturned because of perjured testimony, misleading forensic evidence, false accusations, false confessions, and false witness identification.” In Unwarranted: Policing Without Permission NYU Law Professor Barry Friedman says police “shade the truth” in court so much that there is a colloquial term for it – “testilying” (Friedman, 46).
Bad apple cops can harm or destroy innocent lives and the very agencies they work for. They may spoil other cops as illegal and immoral practices like “testilying” permeate the law enforcement agencies that employ them. Their actions ultimately end in further erosion of public trust in the “rotten barrel” agencies perpetuating their employment and law enforcement in general.
The Rotten Barrel: Systemic Roots of “Lawful But Awful” Policing Practices
Spence, in USA Today article previously mentioned, states unequivocally, “I would be doing the police a gross disservice to argue that all officers are villainous crooks wearing a badge, and that the word “cop” and “killer” are synonymous” (Spence). Most cops are good cops. The majority of “bad cop” behavior is actually of the “lawful but awful” variety. Some officer behavior that inflicts undue harm on innocent citizens, and harms their ability to foster trusting relationships within their communities necessary to keep our every law-abiding American as safe as possible, is actually encouraged by governmental and law enforcement agency policies.
Washington Post Reporter Wesley Lowery covers “policing policy, tactics, training, best practices and reform” (Lowery) for the internationally respected daily newspaper. In his book They Can’t Kill Us All: Ferguson, Baltimore, and a New Era in America’s Racial Justice, he writes: “Black residents in St. Louis all fear the traffic stop. Departments in Greater St. Louis are known for using them to milk revenue for their city’s bottom line, often stacking multiple violations into a single citation. When tickets go unpaid, a warrant is issued. On the day Mike Brown was killed, Ferguson had almost as many active warrants as it did residents” (Lowery). A November 2017 collaborative project by the Florida Times-Union and ProPublica spotlights Jacksonville’s disproportionate issuance of pedestrian tickets non-whites. The writers utilize Ferguson as an exemplar of the negative effects of policing for profit: “U.S. Department of Justice investigators found that police in Ferguson, Missouri, had been enforcing traffic violations and civil codes…to generate revenue for the city. Many of those ticketed wound up unable to pay, and…were cast into a cycle of debt and incarceration” (Conarck).
The current state of “lawful but awful” policing practices, geared toward clearing cases as efficiently as possible under constraints of current statutes and regulations, actually allows police officers to lie to those they suspect of crimes to extract confessions. Sounds great in theory, catching criminals by any means necessary, but their tactics are so powerful they have been proven capable of extracting false confessions in countless criminal cases wherein totally innocent individuals lost their freedom. “Even if you are innocent,” warns Law Professor James Duane in his book You Have the Right to Remain Innocent, “the police will do whatever it takes to get you to talk if they think that you might be guilty. That includes saying just about anything, no matter how dishonest, to help persuade you that it might be in your best interest to give them a statement… If a used car salesman engaged in this sort of deception he would be thrown behind bars” (Duane)
Policing for profit and engaging in dishonest, and arguably cruel, interrogation practices are merely two of the “awful but lawful” policies permeating American policing. Many times, officer behavior like intentionally lying to witnesses and suspects during investigations appears malfeasant to the uninitiated observer. A lack of transparency surrounding police policies and practices leaves the average citizen unaware that such apparently bad acts actually comport with established, legal policing practices. Most citizens are uninformed about the ethical dilemma many police officers face on a daily basis as they balance their sworn duty to use all of the tools and tactics at their disposal to clear cases, including lying to witnesses, with their personal moral duty to universally recognized core values such as honesty.
Transparency: Understanding Results of Policing Policies and Practices
In They Can’t Kill Us All, Lowery calls policing “among the least accessible and least transparent corners of government.” To effectively manage their police departments, the people in the community need transparency regarding the results of standards and practices implemented. Current lack of transparency and public consent are evident in what little we know of policing’s current results, which is far too little. Even consistent standards and practices for disclosing standards and practices are non-existent across agencies, as I learned recently in my research on policing policies and procedures.
If you live in Austin, Texas and want to know your local police department’s policies and procedures, you can download the entire 752 page Policy and Procedure Manual. Live in College Station, Texas and seek the same information? First you’ll need to fill out an open records request. I did just that on November 27, 2017. The totality of the information about College Station Police Department (CSPD) policies and procedures I have garnered via my request so far is as follows: “Your Open Records request for the Police Department Policy Manual has been referred to the Legal Department for response. Various portions of the policy manual are not releasable per prior AG ruling…”
No portion of the CSPD Policy Manual has been sent in response to my public information request as of the time I write this, fourteen days after filing the request. The manual will arrive, eventually, minus anything the Attorney General deems non-public, usually a sliver of what a city asserts is non-public. Anything CSPD is hiding from public view, or attempting to obscure, is tangential. The key question is not what are they hiding from the public they are tasked with serving, but why anything in police policies should not be open to public review? The people cannot effectively manage their police if they cannot get answers to questions relating to police policies and the results generated by those policies.
Law Enforcement For The People Managed By The People
In 1967 President Johnson’s Crime Commission pointed out that “[few] legislatures and police administrations have defined in detail how and under what conditions certain police practices are to be used” (Friedman, 64). Fifty years later, this largely remains the status quo in modern American policing. According to Professor Friedman, “Police officials govern their forces with internal rule manuals, standard operating procedures, or what are called General Orders. Unfortunately, the whole process is pretty haphazard.” Far too often, agencies we pay to protect and serve us all, allow far too little transparency into or public say-so over how and why they do what they do. “Depending on what jurisdiction you’re in,” according to Friedman, “there may be protocols on use of force, on storage and disposition of confiscated property, even on strip searches of arrestees – but then little or nothing on informants, consent searches, SWAT teams, or drones” (Friedman, 65).
Let’s look at just one of many important policy decisions our local agencies make: When should SWAT Teams be deployed? Many search and arrest warrants executed by SWAT teams today were executed via less violent means prior to the proliferation of military equipment like wheeled armored vehicles, flash-bang grenades, and riot helmets in American police liveries (Reuters). According to the ACLU report entitled “The Excessive Militarization of American Policing,” in the 1980s SWAT raids occurred at a rate of 3,000 per year. “Today, there are an estimated 50,000 to 80,000 SWAT deployments per year, which amounts to at least 136 SWAT raids per day” (ACLU). The raids “leave a hurricane’s worth of destroyed property and surrendered lives in their wake” (Friedman, 70). Did the American people or its individual communities decide to increase dangerous SWAT activities over 1500% since 1980? Were “We the People” asked or told about the increased use of SWAT? The costs and benefits? The expected results?
Were “We the People” consulted prior to many of our communities’ police and civic leaders signing deals with police unions rendering it legally impossible for their appointed police chiefs to remove some of the worst “bad apples” from their departments’ ranks? Civic leaders across the country have entered into such contracts with police unions according to the Washington Post piece entitled “Police Chiefs Are Often Forced to Rehire Officers Fired For Misconduct” which reports “Since 2006, the nation’s largest police departments have fired at least 1,881 officers for misconduct that betrayed the public’s trust, from cheating on overtime to unjustified shootings. But… departments have been forced to reinstate more than 450 officers after appeals required by union contracts.”
“We don’t just need public participation in rule-making so that the rules police follow are consistent with the popular will: participation also helps ensure those rules make sense,” argues Friedman. “When other parts of the government adopt rules … affected individuals … can challenge them in court. Because police rules aren’t made publicly, or aren’t made at all-this sort of review by judges does not exist” (Friedman, 70).
Record and Share Alone Not a Long Term Fix, Cop Watching Must Evolve
When should it be ok for police to surreptitiously search your phone records or email account? Should a warrant be required? Who decides when should SWAT Teams be deployed? These are valid questions which state and federal statutes currently fail to adequately answer. Currently, these kinds of key questions are largely answered by un-elected police officials, contractually and statutorily limited in their accountability and transparency, on a case-by-case basis in America’s 15,000 plus law enforcement agencies.
When CSPD did not disclose any of their policies and practices, I published a story about it on the website of the Research Valley Press, a newspaper I operate in the community. Many citizens were surprised and concerned that, in a democratic society, their police department operates by policies that can’t be reviewed by the citizens subjected to them. Others, however, viewed merely asking our government for a copy of the policies our police officers are governed by as wrong. One Facebook comment on the story crystallizes this viewpoint well: “This is one of many things that is wrong with society – the need to be nosy & entitled, demanding that information that could put police officers and military in serious harm’s way should be public information and posted online. There are certain things that should not be public information because it gives the enemy the upper hand. Get over yourselves and think of those who risk their lives for your safety.”
Being an informed and involved citizen should not be stigmatized as “nosy & entitled.” The commenter’s equating police with the military and asserting that disclosing their policies could “give the enemy an upper-hand” is drenched in “back the blue” rhetoric put forth by law enforcement interest groups and police unions. In a democratic society, the police and the military are not the same force. The citizens which police are tasked with protecting and serving are not “the enemy.”
The “enemy” in a democratic society is ignorance and state-ism, a lack of citizen knowledge of and influence over how police operate in their communities. Cop watchers are a case-study in how transparency and public control can improve policing in our communities, making everyone safer and happier, including our peace officers. The fix for American policing lies in the evolution of cop-watching citizens into civic institutions tasked with governing local law enforcement agencies explicitly empowered to observe the activities of officers and to set the policies that govern those activities.
Conarck, Benjamin, Topher Sanders, and Kate Rabinowitz. “Walking While Black: Jacksonville’s enforcement of pedestrian violations raises concerns that it’s another example of racial profiling.” Florida Times-Union and ProPublica.org, Nov. 16, 2017. Web.
Duane, James. You Have The Right To Remain Innocent. Little A, 2016.
Friedman, Barry. Unwarranted: Policing Without Permission. Farrar, Straus and Giroux, 2017.
Kelly, Kimbriell, Wesley Lowery, and Steven Rich. “Police Chiefs Are Often Forced to Rehire Officers Fired For Misconduct.” Washington Post, 7 Aug. 2017. Web.
Lowery, Wesley. They Can’t Kill Us All: Ferguson, Baltimore, and a New Era in America’s Racial Justice Movement. Little, Brown and Company, 2016.
Reuters Staff. “Trump rescinds Obama limits on transfer of military gear to police.” Reuters, 28 Aug. 17. Web. https://goo.gl/8y4Hkz
Spence, Gerry. Police State: How America’s Cops Get Away With Murder. St. Martin’s Press, 2016.
Spence, Gerry. “How do we identify killer cops?” USA Today, 29 Nov. 2015. Web.
27 Sept. 2017. https://goo.gl/XRRFby.
Stamper, Norm. To Protect and Serve: How to fix America’s Police. Nation Books, 2016.