Jesus suffering fuck. This is Commissioner Mark Jennings and Sheriff Kevin Clardy of McCurtain County, Oklahoma having a chat about how just completely awful it’s been for them to be deprived of the right to hang black guys down at Mud Creek.
You may be wondering how not being able to just randomly hang black folks down at Mud Creek–or any other creek, for that matter–gives black folks MORE rights. Apparently it’s because you can’t do that anymore.
I should point out that the lowest geological spot in the entire state of Oklahoma is located in McCurtain County. So is the lowest moral and ethical spot. Also? The only documented area of Oklahoma that falls within the natural range of the American alligator is in McCurtain County. Some of them may hold elective office.
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.
This question/comment was made by a senior economist employed by a major economic policy center:
Seems if we had an attorney general who respected the law, he would send the FBI to ALL of Trump’s residences and tear them apart to look for every damn missing document, just like would happen with a drug lord. What happened to no one being above the law?
Yeah, that’s not gonna happen. And it shouldn’t–not to Trump, not to a drug lord. It’s not gonna happen because we DO have an Attorney General who respects the law. It’s not gonna happen because it’s fucking illegal.
I’ve heard similar questions/comments by other folks. Some of those folks are boneheads, some are smart folks, educated folks, folks who follow the news. I blame television. On television, all a detective has to do is say to some flunky, “I know in my gut that this guy did the crime. I just need to find the evidence. Get me a warrant to search his house!” and hey bingo, the detective gets a warrant.
That just ain’t how it works. Law enforcement–and I’m talking about everybody from the FBI down to officers from your local Mayberry police department–can’t just act on a hunch or a gut feeling. This is pretty basic stuff, and it’s right out of the 4th Amendment of the US Constitution.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
No warrants shall issue. What the hell is a warrant, anyway? The term comes from the Old French ‘garant‘ out of the Frankish ‘warand‘ meaning ‘pledge.’ It’s also the root term for ‘guarantee’ and ‘guard’ and ‘warden’. It means a pledge or guarantee that the information written down has been attested or given under oath.
If the State wants to search a place, they first have to swear an oath that they’ve got a legit reason to do that. There’s a process to this search warrant business, and that process always, without fail, begins with the question, Hey, did somebody break the law here? Is it illegal for Comrade Ex-President Donald J. Trump to stuff classified documents down his pants and take them to Trump Tower or one of his many golf resorts? The answer, of course, is yep. Totally illegal. But you have to be specific; you have to be able to point to an actual criminal statute and be able to say to a judge, “That law right here, that’s the law we believe Trump broke IF he walked away with those documents.“
Step two is another question: Did Trump do that? Did he stuff documents down his pants and walk away? This is where shit gets complicated. Obviously, you can’t prove Trump did that without evidence and you can’t get the evidence to show he did that without searching for it. But you can’t search for it until you can convince a judge that (okay, here’s some legal-sounding language) you have sufficient credible information to establish that Trump probably did that.
The judge will expect you to lay out what that information is, how you got that information, why you believe the information is credible, and your qualifications to justify your belief in the credibility of that information. So you tell the judge, “The Archives reports that Trump was supposed to give them all his shit after he left office, but there’s shit they KNOW exists and they don’t have it, so probably Trump does. The Archives haven’t ever lied to us before and we’re seriously experienced and skeptical FBI agents, and we trust them, so there.”
So yeah, you’ve shown that a crime was probably committed and Trump probably committed it. Now comes Step three: finding the damned evidence. Now you have to convince a judge that you’ve got good reason to believe the evidence of that specific crime exists and can be found in these specific locations. In the Mar-a-Lago search, the FBI told the judge, “We got us some witnesses who saw Comrade Donald J. Trump stuff like TWO truckloads of boxes labeled Classified Shit down his pants at the White House, and witnesses who saw those same boxes unloaded from his pants at Mar-a-Lago, and we’ve even got witnesses who saw those boxes in Trump’s basement and in his goddamned office, if you can believe it, where all sorts of loopy people go wandering through.”
The FBI had all that for Mar-a-Lago. So they were able to convince a judge to issue a search warrant and do the search. They apparently don’t have everything they need to get a warrant for Trump Tower or any of Trump’s other golf resorts. Not yet. But we know they’re talking to folks with information about those locations. So they’re working on it.
Why is this search and seizure business so complicated? To protect innocent people. To keep the agents of the State from wandering through anybody’s home or place of business on the off chance that maybe they’ll find something illegal. It’s to stop them from just walking into YOUR home or your office, opening YOUR drawers, snooping through YOUR closets, rummaging around in YOUR kitchen, or trolling through YOUR private stuff on YOUR computer.
The irony, of course, is that if Comrade Trump were ever to have power again, that sleazy motherfucker absolutely WOULD want to be able to do that.
I give no weight to the claim by the Uvalde, TX police that they couldn’t breach that classroom door because it hadn’t been authorized. No weight at all.
Don’t get me wrong. I’m fully willing to believe that whoever was in charge of the situation (and it was such an astonishing jurisdictional fuck-up that it’s hard to say who was actually giving orders to whom) refused to authorize the breach. But I don’t believe that’s what actually prevented the police from entering the classroom. And in fact, it appears the final decision to breach was made despite orders not to do it.
I strongly suspect the reason for the delay was that nobody wanted to be the first person through the door. They knew there was somebody on the other side of the door with a semi-auto rifle. They knew that person had already shot and killed a bunch of kids; they knew he wouldn’t shy away from shooting at police officers. They knew the first officer through that classroom door would be targeted. They knew there was a very good chance that first officer through the door would be wounded or killed.
I’ve never been in that situation, though I’ve been in something similar. Years ago, when I was working as the counselor for the Psychiatric/Security Unit of a prison for women, I occasionally found myself standing outside a cell in which an inmate had either obtained or fashioned a knife. Obviously, you can’t allow prison inmates to have knives, which means somebody has to take it from them.
Because we had a duty of care for the inmates–and we actually believed in it–that meant finding a way to take the knife from the inmate with the least amount of damage to the inmate. Not the least amount of damage to the unfortunate volunteer who had to enter the cell, but to the inmate. That’s what a duty of care means; you have an obligation to try NOT to hurt the people under your care or allow them to be hurt.
The very best resolution, of course, is for that unfortunate volunteer to try to talk the inmate into surrendering the knife. As the unit’s counselor, my job was to be the unfortunate volunteer. Open the door, go in the cell by myself, try to convince an inmate to drop her weapon. You go in by yourself because that’s less threatening.
I’m not an idiot, though. I always had a team waiting outside, out of view, ready to rush in and help me if/when things went sideways. It made going into that cell a little bit less terrifying.
Talking worked maybe half the time. Half the time the inmate either refused to drop the knife (in which case I had to act to take her knife away) or she attacked me. I trained for this, of course, and practiced techniques for defending myself against a knife attack. But it was still pretty awful waiting outside that door, knowing I’d have to go in and maybe have to defend myself. The longer I had to wait (for example, if the backup team hadn’t arrived), the harder it was to open that door and step inside.
It has to be a LOT scarier to stand outside a door knowing the person inside has a semi-auto weapon and has already killed people.
But here’s the thing: that’s the job. You train for it. You practice it. It doesn’t necessarily make it easier, but it’s your job to put aside your personal safety. If you can’t do that–or if you’re unwilling to do that–then you should leave the job.
Over the last several years, the attitude of police officers has shifted away from that. It began with that mantra “It’s better to be tried by twelve than carried by six.” More and more we’re seeing police officers put their own safety ahead of the public’s. We see police officers shooting suicidal, knife-wielding, psychiatric patients–because it’s safer for them. We see police officers shooting people suspected of possibly having a weapon–because it’s safer for them. We see police officers shooting people out of fear for their own safety.
That’s perfectly understandable. Nobody wants to get hurt, nobody wants to get stabbed or shot, nobody wants to take unreasonable risks. But that’s part of the fucking job. You train and practice ways to reduce the risks, to minimize the risks, to limit the damage you will very likely have to take. But those risks are hard-wired into the job.
As I understand it (and lawdy, there is SO MUCH confusion and misinformation about what actually happened in Uvalde that we still can’t be sure what took place), the first person through the door was grazed by a bullet. He could have been killed. But had he (or some other law enforcement person) had been willing to take that risk 45 minutes earlier, there’d be fewer funerals of children held this week.
The police culture needs to change. They need to be reminded about the entire point of being police officers. Protect and serve. Protect the public, serve the public. Do that even at the risk of your own safety. If you can’t or won’t put the public ahead of yourself, go work security at some shopping mall.
gregfallis.com 