Some Thoughts on Baltimore

NB: Given the sensitive nature of the subject, I reiterate that this is my opinion and should not reflect the views of my employer. -JPB

The unrest that is afflicting Baltimore in the wake of the arrest and death of Freddie Gray is an unfortunate but predictable outcome of years of abuse and neglect. Last year’s Sun investigation of Baltimore’s police brutality cases shined a light on engrained practice of tolerating and covering up police brutality. Such tactics temporarily shielded the police from outside scrutiny by media and kept Baltimore police out of the national spotlight. But those neighborhoods of Baltimoreans who knew and experienced that abuse have endured it for years with no reckoning of criminal justice.

The city has taken the positive step of making civil suit records public and searchable on a government website, but civil suits may take years to litigate and require resources the most vulnerable of Baltimoreans do not have. Without swift change in the day-to-day functions of city policing, piecemeal efforts on the back-end of reform will fail to quell the anger felt by the people of Baltimore.

Part of this problem is Maryland state law. Police personnel records—namely, their disciplinary files—are generally exempt from public information searches. Thus, officers who have a history of violence have no independent check on their behavior. If the Baltimore PD tolerates violent and repeated officer misconduct, as the Sun’s investigation showed it has, then officers are operating without any meaningful oversight vis a vis their interactions with the public.

Maryland is not alone in this secrecy. All but a handful of states provide considerable protections to police disciplinary records. Most Americans live under legal regimes that force them to trust police to oversee themselves. This imposed faith may work in some jurisdictions, but it is clearly failing in many others.

This widespread lack of accountability degrades the police’s relationship with the people they serve, undermining their legitimacy. As author Maurice Punch wrote, “[T]he crucial test for policing in a democratic system is accountability….For without genuine accountability, there can be no legitimacy; and without legitimacy the police cannot function effectively in democratic society.”

What we’re seeing in the streets of Baltimore is a criminal justice system without accountability and a police force that is suffering a foreseeable crisis of legitimacy.

Those who riot and loot should not be excused for their actions. Violence, mayhem, and theft are wrong, full stop. That does not mean, however, that the policing situation that led us to this point is excusable or without blame. When police abuse citizens with impunity and a community suffers years of abuse, the social fabric that holds communities together will unravel.

The solution is simple to say, but a challenge to implement: transparent and accountable policing. If Freddie Gray were the first man abused by Baltimore Police, we wouldn’t be watching kids throwing bricks at officers on our televisions or in our Internet feeds. The unleashed anger in Baltimore is a result of unchecked police power continuously roaming through neighborhoods and terrorizing their inhabitants.

The institutions that have protected violent officers will continue to do so and resist meaningful police reform, at their peril. The tolerance and protection of violent officers is a threat to both public and officer safety alike. Police cannot arrest their way into a restored community faith and ignoring the demands of peaceful protests will further erode police legitimacy. 

The onus is on state and local governments to make police transparency a priority. Police departments must make themselves more accountable to the people they serve and take proactive steps to reassure their citizens that they will discipline or fire their officers for misconduct.

There is simply no other way to prevent the fire next time. 

bellum medicamenti delenda est

On the NYPD Tragedy and Its Aftermath

As most people, I am horrified and saddened by the murder of the two police officers in Brooklyn yesterday. My heart goes out to the family, friends, and colleagues of  officers Wenjian Lui and Raphael Ramos.

But the reaction by some self-styled allies of the NYPD are nothing short of inexcusable. This sentiment may be best illustrated by former New York governor George Pataki:

Like Eric Holder, I have immediate family that served honorably and proudly in law enforcement. To assert that people like Holder (and me) who criticize police practices and want police to be better than they are should be held responsible for the acts of a murderous lunatic is reckless and unforgivably insulting.

Need the preening, self-important politicians be reminded: the United States is a country where free speech is an essential tool by which the government for, by, and of the people is held accountable. To say that those who criticize the police are responsible for the random violence inflicted upon some officers by an evidently suicidal man is to express a sentiment that is not only baseless and malicious, but fundamentally un-American in implication.

Beyond the preening politicians, there have been those who would like to characterize criticism as a 'war on cops.' Admittedly, there are those people who have become so fed up with how they and their loved ones have been treated by police officers that criticism comes from a place of anger and frustration. But the police are ultimately responsible for how they treat the public and thus have considerable control over how they are perceived by that public. It is pure fantasy to believe that the outrage that has fueled the dozens of nationwide protests against police brutality has been manufactured against an otherwise beloved police force that in every case has great relationships with the communities they serve.

Furthermore, the war on cops rhetoric coming from some police sources only reinforce the point made by many critics of the police that too many officers hold an "us versus them" mentality when dealing with the public. If the police believe they are working among an enemy population, their treatment of the public will undoubtedly reflect that mindset.

There is no greater threat to police-public relations than a police force that holds open hostility towards the people it is charged with serving. This jeopardizes public safety not only from police-public violence, but endangers communities by undermining the legitimacy of law enforcement itself.

The NYPD and its members have every right to mourn and be outraged by the actions of a lone gunman yesterday. My most sincere sympathies go out to them for their losses. However, that does not give them or anyone else carte blanche to abuse the citizens with whom they come into contact, nor does it require those of us concerned with improving police practices that enable that abuse to remain silent because they have dangerous jobs.

The police are not our enemies, nor are the people the enemy of the police. At a time when the vast majority of reformers are expressing sympathy for the police and the sacrifices they make, self-appointed friends of the police like Gov. Pataki would serve everyone much better by not stoking police fear and resentment. To do otherwise makes everyone--police, protesters, and the general public--less safe.

bellum medicamenti delenda est

Police Policy and Police Violence

My first installment in a series on police policy and its relationship to police violence is live over at Rare.us. Frankly, so much of the critiques in the wake of Ferguson, Staten Island, and Cleveland focuses on niche issues, like the drug war, instead of how we allow our police agencies to be run in our name.

When used as a method to question someone in relation to a separate crime, whether in a car or on the street, this behavior is known as a pretextual stop. Simplifying a bit, one law (e.g., running a stop sign) is used as pretext to investigate further (e.g., looking for evidence of drug crimes) because the officer otherwise lacks reasonable suspicion or probable cause to stop a person or vehicle. Thus, if a police officer makes up his mind to stop you, even the slightest violation of a law or out of the ordinary conduct (like looking nervous when a police officer is watching you) can give him an excuse to stop you. 

Put another way, he’s certainly going to stop you.
[...]
One disturbing aspect in so many of these recent, high-profile homicide cases is the quickness with which violence became the method of control against Michael Brown, Eric Garner, and others. That the recent cases have all involved black males is no surprise to many observers and protesters. Even skeptical black conservative Jason L. Riley tells a story about how he was grabbed from his vehicle by police at gunpoint because he "fit the description" of a suspect.. “Fitting the description” is, in practice, often just a police euphemism for being a black male.​

It's a tad long, but it lays the fundamental groundwork for understanding what is actually going on during police encounters all over the United States. I also explain how some departments knowingly tolerate police violence:

Fifteen years ago, criminology professor and police researcher Jerome H. Skolnick wrote an article on police brutality in the American Prospect. He noted that, “Police executives sometimes review the ‘resisting arrest’ cases of police officers to determine whether a cop inclines toward administering vigilante justice.”  

The thinking goes, if a suspect is in custody with visible bruises or other injuries, those injuries—if caused by the arresting officer(s)—are typically justified by claims of resistance.  

WNYC News recently reviewed over 50,000 NYPD cases in which resisting arrest was among the charges. WNYC found that five percent of NYPD officers accounted for 40 percent of all resisting arrest charges since 2009, and 15 percent of officers accounted for half of all resistance charges.    

The next installment will discuss systemic susceptibility for police perjury. Read the whole thing here.

Ferguson Grand Jury Announcement Today

It has been a long time since I've been this nervous about a community's well-being, let alone one I'm hundreds of miles away from. All news reports indicate that the grand jury decision in the case of Darren Wilson's shooting of Michael Brown will be announced today.

It seems the entire media is bracing for a riot. I'm hoping that whatever violent elements exist will be largely contained by the righteously angry but largely peaceful demonstration in the case of no indictment--as has generally been the case since the demonstrations began.

Most people, on all sides, assume that there will be no indictment.

Even if everything (including the discredited broken eye-socket story) that Wilson's supporters said about the altercation with Michael Brown was true, the result has revealed the deep and unforgivable fissures between the local police and the community.

Much ado is made about the racial makeup of the Ferguson police force, and that certainly adds to the problems,  but this is really about a police force that enjoys no respect or benefit of the doubt from its community. As I've written recently, that blame falls entirely on the police departments, not the communities they are charged with protecting.

The release of the shoplifting tape, uninvestigated grand jury leaks, police-union backed "anonymous" fundraising campaigns, outright lies, and other Wilson friendly information fed to the media compound this distrust--and that's before you even get to the aggressive, unprofessional, and explicitly hostile way the police agencies have handled the demonstrations since the shooting.

Personally, I'm looking forward to going over the testimony and evidence the prosecutor presented to the jury. I'm very curious as to the actual police account of what happened--something we still have not had to date--and why, presumably, Wilson had his gun out to fight over in the first place, if indeed there was a struggle over said gun as supporters suggest. (That Brown reached inside an SUV and went for a holstered weapon could not pass the smell test.)

My layman's guess is that whatever transpired between Brown and Wilson, Wilson too quickly reached for his weapon. This is something that cost an innocent's life in New York last week, and I'm sure it happens more often than is widely reported.

Police who draw their guns as anything but a last resort demonstrate a fear and scorn of the people they are charged with protecting. Such animosity likely spills over into other, less violent encounters with police. A community that faces that animosity regularly will feel it and naturally resent it.

Regardless of the grand jury's decision, police across America should take this as a teaching moment. It is imperative that any police force has the respect and trust of the people its policing. Otherwise, when things go wrong--and they will--a bad situation may become exponentially worse. 

My thoughts are with the people of Ferguson today. Let us all hope for some measure of justice and, above all, peace.

bellum medicamenti delenda est

Cops on Camera Event Video

Just posting the video to the Cato panel I was on yesterday. It was covered by C-SPAN so you can find it on their website, or you can watch it here, with footage taken from (and available on) the Cato website.



A most sincere thank you to all of my friends, family, and colleagues that have been supportive of me and this event.

bellum medicamenti delenda est

Come See Me at Cato on Thursday

As I've written recently, the advent of small, high quality cameras that can be put on dashboards, worn by police officers, or carried in your pocket as part of your phone is changing the very nature of police encounters and police accountability.

I know it's late notice--it was for me too!--but I'll be on a panel discussing cameras, technology, and policing this Thursday at Cato.

If you can't attend the event in person, you can watch it livestream here or catch it when it's later posted on the Cato Events archives page.

bellum medicamenti delenda est

The Importance of Cameras to Policing

Yesterday was a good day for new law enforcement videos. In addition to the superb John Oliver video on civil asset forfeiture that that went viral on Monday, Vox.com put out a great video on the importance of video recordings to civil rights and policing.

In the interests of full disclosure, I am engaged to the narrator of this video, Ms. Dara Lind, but I would share it even if she had nothing to do with it. (Or, for that matter, that my employer was not cited briefly in the video as it is now.)

WARNING: Video contains footage of people being shot.


Police misconduct, as anyone familiar with my work probably knows, is a subject I've been interested in for several years now. I can talk about incentives and systemic structures and a bunch of other wonkish terms that explain what is happening and why, but videos like this really explain the human-impact of police abuse and how video evidence is often the only way for victims to prove their innocence.

After the fact video evidence won't bring back John Crawford, but wider use of dashcams and personal cameras my prevent more John Crawfords from dying in the future.

There are other issues that need to be addressed to save future John Crawfords...and Mike Browns...and Eric Garners....

But in the meantime, the more video evidence of police interactions, the better.

bellum medicamenti delenda est

Lessons from Ferguson

The quote that has been the subhed of this blog for years is Robert Nozick's "Only the refusal to listen guarantees one against being ensnared by the truth." In a world in which people of color feel mistreated because of their race, supported by mounting evidence supporting those claims, ignoring or simply waving away those problems is just that sort of deliberate ignorance. Someone who comes to public policy from this perspective needlessly undermines their own message because their worldview doesn't comport with the realities faced by many people.

That is why I was so excited about a recent event at Cato, and was even more pleased with how the event went.  The event was called "Lessons from Ferguson," and it featured a number of voices across the spectrum dealing with race and American policing.

Moderated by my colleague Tim Lynch, the panelists included Professor Alice Goffman, author of On the Run, a sociological narrative about her observations in a black Philadelphia neighborhood; Ethan Brown, author of Snitch, a history of the infamous and widely misunderstood "Stop Snitchin'" movement; Neill Franklin, retired Baltimore police officer and executive director of Law Enforcement Against Prohibition, and Lauren Victoria Burke, journalist and creator of the blog Crewof42.

I highly recommend you watch the event in full. I enjoy many Cato events, but it is rare when we have a collection like this. I'm not sure anyone on the dais (besides Tim, of course) would self-ID as libertarian, but these are problems everyone should recognize regardless of party or ideology.


Of particular note, I found Neill's comment about his run-ins with the police as a black child in Baltimore, as well as his admission that, even as a black police officer, you just become accustomed to treating black kids differently. That is what institutional racism is all about. 

It's all worth watching as I thoroughly enjoyed each presentation. I cannot say enough about how glad I am that Cato hosted it.

bellum medicamenti delenda est

DISCLOSURE: As most people who read this know, I work at Cato, but this is my personal blog. I wasn't asked to promote this event, it's just a topic that is near and dear to me and I'm so happy we're bringing in people--scholars, practitioners, and writers, including people of color--who can talk about what is going on in America. Also, I make a brief cameo near the end.

Libertarians' Racial Blindspot

My friends and former colleagues over at reason rightly note that a cop appears to have been way too aggressive when stopping a college professor for jaywalking:

A police encounter in Tempe, Arizona, over the weekend turned ugly after a campus police officer wrestled Arizona State University professor Ersula Ore to the ground. Video footage shows the officer attempting to pull Ore's hands behind her back and pin her against the dashboard before slamming her onto the ground in the middle of the street.

Ore's crime, evidently, was jaywalking in the middle of the night.

Now, I'd seen people share this story on social media without clicking through, but it was something I wanted to check out. Without seeing her name--or even her gender--but hearing about the incident, I assumed that the professor was likely black and the officer was likely white.

Why? Because black people's history with law enforcement has long been fraught with conflict and the years of police officers treating black people more harshly than they treat your average white person is no secret. Police abuse is by no means exclusive to black people, but it is and has been prevalent since law enforcement and black people have coexisted in this country. And jaywalking is one of those laws that is, for the most part, used as a pretextual stop (as opposed to, say, a priority of law enforcement) because the officer thinks the person is otherwise up to no good.

Police have a special place of disdain in the hearts and minds of many libertarians.* Libertarians often see police as the embodiment of everything that is wrong with the state and their use and abuse of force is wanton and without rhyme or reason. Yet, most black people understand that this sort of abuse happens to them more often, whether it's inherent racism or suspicion on the part of the officer, the policing style in a given neighborhood or area, or the disparate political power of a group of people less able and likely to successfully challenge the behavior of an officer.

I don't think it's a failure of the reason author to point this out, but I would have liked to see it.

Too often, libertarians have asked me in private conversation about what's best described as "respectability politics." That is, because of the dress or language or behavior of young black men particularly that the ire of police is directed their way and therefore results in the myriad criminal justice disparities. But here you have a black female college professor refusing to show ID--as any good libertarian would--and getting thrown to the ground and arrested. How many times does this sort of thing happen to black people before libertarians recognize that maybe her race may have played a role? It's journalism--you're supposed to stick to the facts and keep speculation down, I know. But the fact is black people have a long history in this country of being singled out and abused by people in power and, to my knowledge, there's been no magical moment when that has stopped being true.

I've written about this libertarian blindspot at length in my latest essay at Libertarianism.org.

bellum medicamenti delenda est

*NB: My father was a police officer.  Many years after he retired, he went back to work part time at the police department because it was home to him. I got to know many police officers and I continue to respect police officers today. But that doesn't make the history any less true or troubling.

AAG West: 'Just So You Understand Where I'm Coming From'

There's an event in New York City going on right now called the "Strengthening the Relationship Between Law Enforcement and Communities of Color Forum." I don't know much about it, other than the NYPD could stand to learn a lot about how to deal with minorities fairly, so it sounds like a good idea, at least.

Today, Associate Attorney General Tony West gave a speech there in support of a new federal program to study ways to improve how law enforcement deals with persons of color. And while I know better than to endorse any government program solely based on its conceptual framework--let alone a loose framework laid out in a speech--I did want to highlight parts of the speech I think is important.

I come to this discussion as one who has been privileged to work with law enforcement for most of my career -- for several years as a federal prosecutor in a U.S. Attorney's Office; as a lawyer in the California Attorney General's Office; and now as part of the United States Justice Department's leadership. That experience has left me both profoundly grateful for and humbled by the dedication and commitment of so many in law enforcement who serve to keep our communities safer places to live, to work and to play; and who do so with integrity and in compliance with the law.

Theirs is not an easy task, and their duties are often performed under difficult and dangerous circumstances. And the reality for most officers, I believe, is that policing is not a job; it's an honor and profession. It's about service. It's about promoting safety and security and fostering strong neighborhoods for the residents who live there.

I also come to this discussion as my father's son. He was a man born and raised deep in the Jim Crow south. And when the time came for his eldest child and only son to take up driving lessons, dad was my teacher, imparting all the familiar lessons of keeping my eyes on the road and signaling before I turned.

And then there were the lessons not found in any driver's manual; lessons informed by family history and community experience: When -- not if -- you are pulled over by the police for no ostensible reason, keep your hands visibly planted at 10 and 2 until instructed otherwise. Always ask permission before reaching for your license and registration, and even then verbally explain what you're doing. No quick movements. End every sentence with "sir." Speak only when spoken to and never, ever talk back. 

Dad called these "survival skills," and I put them into practice on more than a few occasions, well into adulthood. I suspect that I'm not alone in bringing such divergent, perhaps even conflicting, perspectives to today's discussion.