how we got here

It’s Sunday, and this morning there are a LOT of quick, simplistic, really bad takes on the police murder of Tyre Nichols in Memphis. I’m actually pretty much okay with that. This is a situation that calls for immediate outrage, and that inevitably lead to quick, simplistic, bad takes. Right now, outrage first is a valid response.

The good thing about almost all of these quick, simplistic, bad takes is they do actually focus on the source of the problem: police culture. People are asking, “How did we get here?” Which is a good question. A complex question with a really complex answer. Because we’re talking about the intersection of multiple areas of concern.

I’m going to talk about four of them: 1) The wrong sorts of people are joining the police, and they’re joining for the wrong reasons. 2) Police officers are trained to assume guilt and danger. 3) Police officers aren’t bound by a duty of care. 3) The doctrine of qualified immunity protects bad police officers and undermines community trust in the police.

(photo by Erik McGregor)

The wrong sorts of people are joining the police, and they’re joining for the wrong reasons. Occupational studies suggest that until around the late 1960s and early 1970s, most of the people who joined the police did so for three pretty basic reasons. It was 1) an interesting job that offered a lot of diverse activities in a non-office/shop/factory setting, 2) it was a good union job that offered decent pay, excellent benefits, opportunities for advancement, and a reliable retirement plan, and 3) it was a way to help people and serve the community.

That last reason seems hard to believe now, but it was generally true. People joined the police because they liked the idea of helping people.

Why did that change? Lots of inter-related reasons, including the social upheaval of the late 1960s, which was the fallout from recreational drug use, the war in Vietnam, and growing alienation with consumer culture. One of the less obvious reasons was this: television.

Early cop shows (like Dragnet, Naked City, Highway Patrol, M Squad) showed police officers and detectives dutifully doing their job and–and this is key–doing it within the confines of the law. Television cops rarely lied (to suspects, to judges, to their superiors), rarely fabricated evidence, rarely threatened or intimidated people to get information, and they almost never shot anybody. They just followed the evidence and caught the bad guy.

In the 1970s, cop shows changed. The ‘rogue’ cop became fashionable. Shows like Baretta, Starsky and Hutch, Miami Vice, NYPD Blue, The Shield featured police officers–usually detectives–who bent the law to get ‘bad guys’ off the street. There were crazy-ass car chases, cops kicking in doors, cops making threats, cops harassing and intimidating bad guys (and sometimes ordinary citizens who got in the way), cops lying to get around the law, cops committing crimes to catch criminals, a LOTS of cops shooting and killing LOTS of bad guys.

The new shows were more exciting. An unintended consequence of those shows is that they attracted a different sort of police candidate. Fewer people joined because it was a good union job, more people joined because they wanted to kick in doors; fewer people joined because of the excellent benefits, more joined because they thought car chases were cool; fewer people joined because they wanted to help the community, more joined because they wanted excitement. These are NOT the qualities you want in a police force.

Police officers are trained to assume guilt and danger. The operative assumption of guilt is baked into police training. For their own protection, police officers are trained to assume the people they interact with are probably guilty of something. This keeps the officers alert, which is a good thing. It also keeps them suspicious and anxious, which isn’t. It leads officers to perceive danger where no danger actually exists. This also applies to situations as well as people. If you chase somebody into an alley or behind a house, you have to assume that every shadow could hide somebody who wants to hurt you. Being surrounded by presumably guilty people in presumably dangerous places shapes the way you see and interact with the world–and not just when you’re on duty.

Because of the proliferation of guns in the US, the operative assumption of guilt and danger is heightened. It’s more real. Police officers are more at risk now. They respond to that risk by being more aggressive and more suspicious, which leads to more resentment from the populace, which leads to more risk for the police officers, which leads to…well, you see where this is going.

Police officers aren’t bound by a duty of care. All those early cop shows? They emphasized what’s known as a duty of care. Basically, a duty of care simply means being responsible for the health, safety, and well-being of other people. There’s a legal definition of that phrase, and like all legal definitions, it’s deliberately narrow and primarily involves liability for injuries to others. You know, like if you leave a bunch of power tools lying around in a day care center where curious kids could hurt themselves or other kids. You have a legal duty of care not to do shit like that.

In many nations, policing agencies have a duty of care explicitly spelled out as part of the job. The police have a positive ethical obligation to avoid acts that could foreseeably harm others. That means putting the safety of the public before everything else, including the safety of the police officers. The public, by the way, includes people suspected or accused of crimes.

In the US, police have NO formal duty of care to protect members of the public (unless they’re in custody). Seriously, neither the Constitution, nor state law, impose a general duty upon police officers or other governmental officials to protect individuals from harm, even if they know the harm will occur. As a result, police officers often put their own safety above the safety of others. We saw that in Uvalde, Texas.

The absence of a duty of care also means police officers are more inclined to shoot early in situations, and to shoot a lot. That inclination is encouraged by the next issue.

The doctrine of qualified immunity protects bad police officers and undermines community trust in the police. Qualified immunity is a legal doctrine granting police officers (well, all government officials) immunity from civil suits UNLESS the officer violated “clearly established statutory or constitutional rights of which a reasonable person would have known.”

What in the popcorn fuck does that mean? It means police officers who do awful stuff are protected from civil and criminal prosecution IF 1) they can testify they believed in good faith that the awful stuff was lawful and objectively reasonable, and 2) they’re unaware of a “clearly established” law saying that specific awful stuff was illegal. Only one of those factors has to hold in order for qualified immunity to apply.

Here’s an example: back in 2014, in Coffee County, Georgia, a deputy sheriff named Michael Vickers was searching for a robbery suspect. He and other officers found the suspect, Christopher Barnett, talking to a woman in her yard. Half a dozen kids were also in the yard. The officers demanded they all get on the ground, including the kids. Everyone immediately complied. At that point, Bruce, the family dog, came into the yard to see what the fuss was. Although the dog wasn’t threatening anybody, Vickers fired at him…and missed. Bruce ran away. Moments later, Bruce returned, the way dogs do. Vickers fired at him again. And missed again. But this time the bullet struck a ten-year-old child in the leg. The kid’s family sued Vickers. The court ruled he was immune from the suit.

Why? Because 1) Vickers thought he was behaving within the limits of the law by shooting at the dog, and 2) even if shooting at an innocent dog WAS illegal, there was no “clearly established” law STATING shooting at a dog and missing, thereby accidentally shooting a kid was illegal. In fact, Vickers could theoretically shoot at another dog and miss and accidentally wound another kid and get by with it because there’s no law specifically stating that’s against the law. I’m not making this up; this is how this shit really works.

When the wrong people enter policing for the wrong reasons, and they’re taught to be suspicious and aggressive, and they’re not required to consider the safety of the people they’re sworn to protect, and they’re rarely held personally accountable for their bad behavior, you create a policing culture that encourages pre-emptive, sustained violence.

We need to change every deeply ingrained aspect of that culture. Sadly, even if the US has the commitment to do that (and I rather doubt we do), it will take time. But we can start by taking three small common sense steps. Radically modify qualified immunity (it would be better to eliminate it from policing, but you know…baby steps). Codify a duty of care into policing. Reduce police officers to a subordinate support role in mental health situations, and create more mental health response teams staffed by trained mental health professionals. It would also help to present sensible firearm legislation as being pro-police.

EDITORIAL NOTE: Obviously, race plays a huge role in police violence. Huge. Why didn’t I address that? Because lots of other folks are addressing it, and this is already a really really long blog post.

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