Sunday, September 6, 2015

A Closer Look at Black Lives Matter's Program

So, Black Lives Matter has come out with a reasonable, mainstream program for addressing police brutality.  By "reasonable" and "mainstream," I mean things that have either been done, or are longstanding proposals by civil libertarians.  "Reasonable" and "mainstream" I do not mean non-controversial, or that no one will oppose them.  I simply mean that anyone bothering to know about these goals will not consider them crazy or completely out of bounds.  Let me go through them, not so much in the number they are ordered, but more by the color coded categories to see what is being asked and what I would expect the response to be.


End Broken Windows Policing.   In other words, stop arresting people for minor offenses like public drinking, marijuana, disorderly conduct, trespassing, loitering, disturbing the peace (including loud music), or spitting.  Either decriminalize these activities, or de-prioritize enforcement.  End stop-and-frisk.  You may get somewhere ending stop-and-frisk.  As for these other minor matters, I think there will be strong resistance.  There is no real evidence that ignoring minor infractions leads to major ones, but there is ample evidence that it leads to more minor infractions.  (There was an excellent link on the subject, but too lazy to find it).  These have a large enough quality-of-life impact that people are unlikely to accept an end to enforcement.  (I have some sympathy both ways).

End For-Profit Policing.  This includes both civil forfeiture and putting a stop to using fines for minor infractions as a revenue raising technique.  I favor ending both practices.  Both are sources of serious abuse in the interests of fund raising.  Civil forfeiture has gotten enough bad publicity and has enough property-rights opponents that it that this one is probably achievable.*  As for ending ticketing for revenue it is a great idea, but it will meet with more resistance because, well, it will deprive government of an important source of revenue and force people to face unpleasant tradeoffs between taxes and services.  That along will probably doom it.


Better Training, particularly in conflict resolution, de-escalation, implicit racial bias, dealing with people with limited English, and dealing with various minority groups.  These all seem like good ideas to me, and I doubt that there will be too much resistance to training in conflict resolution and de-escalation, except among a few hard core types who consider them un-macho.  But any suggestion that police my have an implicit bias, or that different techniques may be called for in dealing with different groups is going to meet with fierce opposition from conservatives who will consider this "race-pimping" or a call for special privileges.

Demilitarization.  This one is pretty straightforward.  Give the police a bunch of military gear and they will be tempted to use it.  I am all for this; a lot of other people are too.  Unfortunately, transfer of military equipment to the police has created a vested interest that will be hard to fight.

Limit Use of Force.  Limit use of force from a "reasonable belief" in danger to an "imminent" deadly threat, better training in de-escalation, force avoidance, and minimal use of force.  End high speed chases.  Report all uses of force, establish early intervention for police who show a tendency toward excessive force.  It has been remarked that this one will meet with particularly strong opposition from police who see it as endangering their lives.  No doubt they will also resist ending chases as making it easier for criminals to get away.  For that reason, it is probably better to focus on de-escalation, avoiding force, minimal use of force, and early intervention.  They may achieve equally good results without having to change the standard of use of force at all.

Community Representation.  In other words, hire more black people so the racial makeup of the police force more closely reflects the racial makeup of the community.  Conservative anti-affirmative action people will fight this one tooth and claw.


Body cameras and right of bystanders to film the police.  Careful thought is given to giving the people involved to see the incident and protecting their privacy from the general public.  This one is probably fairly uncontroversial and one of the most likely to be achieved.**

Community oversight.  Campaign Zero proposes a civilian commission tasked with oversight of the police force, to include proposing candidates for police chief to be appointed by the mayor, firing the police chief if necessary, setting policies, investigating citizen complaints, and administrative discipline.  I do not have any sense of how this would be received.  If I had to guess, it would be that the police department would be hostile, saying that their lives are not on the line, so the commission would not understand.  My objection would be the opposite.  I do not have that much faith in such commissions because they look like candidates for regulatory capture.  Regularly working with any group you are supposed to be holding accountable can do that.

Independent Investigation and Prosecution.  This is an attempt at avoiding regulatory capture, or at least collusion between the police and the local District Attorney who, after all, regularly work together.  Candidates include the US Department of Justice or a special prosecutor.  No particular comment here.

"Fair" Police Contracts.  This means eliminating a lot of the procedural protections included in police union contracts.  "Fair," of course, is an immensely subjective term that can mean all things to all people.  It seems safe to assume that this one will meet with fierce resistance from police unions, who will see it as stripping them of their procedural rights, even as people complain about having their procedural rights disregarded.  I do not pretend to know enough to weigh in on the merits of this one.

*My own state of New Mexico is at the forefront of opposing civil forfeiture and has ultimately brought an end to it.  Campaign Zero offers it as a model to follow.  What a shame most of my Facebook friends are a whole lot more interested in stamping out all opposition to same sex marriage.
**As a lawyer I can also attest to its effectiveness.  We had a client suing for wrongful arrest.  The police insisted that she was yelling, using profanity, and disturbing the peace of other people in the area.  She firmly denied the accusation.  Her word against three cops did not look good -- until we heard the belt recording of the arresting officer, which made clear that, although she was being argumentative and perhaps a bit arrogant, she was not in any way raising her voice, using profanity, or disturbing anyone's peace.  Moral: don't always trust a cop.

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