Perilous Policing

Criminal Justice in Marginalized Communities

Thomas Nolan

• Publisher: Routledge
• Year: 2019
• Print ISBN: 9780367026691
• eBook ISBN: 9780429676031
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Policing and police practices have changed dramatically since the 9/11 terrorist attacks and those changes have accelerated since the summer of 2014 and the death of Michael Brown at the hands of then-police officer Darren Wilson in Ferguson, Missouri. Since the November 2016 election of Donald Trump as president, many law enforcement practitioners, policy makers, and those concerned with issues of social justice have had concerns that there would be seismic shifts in policing priorities and practices at the federal, state, county, and local and tribal levels that will have significant implications for constitutional rights and civil liberties protections, particularly for people of color. Perilous Policing: Criminal Justice in Marginalized Communities provides a much-needed interrogatory to law enforcement practices and policies as they continue to evolve during this era of uncertainty and anxiety. Key topics include the police and marginalized populations, the use of technology to surveil individuals and groups, the emergence of the Black Lives Matter movement and the erosion of the police narrative, the use of force (particularly deadly force) against people of color, the role of the police in immigration enforcement, the "war on cops," and police militarization.

Thomas Nolan's critique of current practice and his preliminary conclusions as to how to navigate contemporary policing away from the pitfalls of discredited and counterproductive practices will be of interest to advanced undergraduates and graduate students in Policing, Criminology, Justice Studies, and Criminal Justice programs, as well as to researchers, law enforcement professionals, and police policy makers.

Chapter 1

The Police, the Constitution, and Civil Rights and Civil Liberties

In late April 2016, a journalist telephoned me from the Bay Area in California with a request for comment on yet another recording of the police engaging in what appeared to be an incident involving the use of excessive force (Lawton, 2016). This incident took place in Hayward, California, which has a police department whose chief at the time happened to be a former student of mine. In the aftermath of the police-shooting death of Michael Brown in Ferguson, Missouri in August of 2014, I had been (and continue to be) frequently sought out for commentary following situations where police practices and policies appeared, at least initially, to have violated an individual’s civil rights and civil liberties.

In Hayward, police had stopped James Greer, a 46-year-old African American grandfather who weighed close to 380 pounds, when he reportedly drove his pickup truck “erratically” in front of Hayward police lieutenant Jeffrey Lutzinger. Lutzinger and other Hayward police officers who arrived at the scene of the stop began to administer a field sobriety test to Mr. Greer, who they suspected of operating while impaired. The police body-camera video, recorded on a body-camera worn by a Bay Area Rapid Transit police officer who had also responded to the scene, showed that the brief field sobriety test inexplicably concluded when officers decided to take Greer into custody.

One of the officers is seen asking Mr. Greer if he suffered from any medical conditions and Greer can be seen pointing to the area of his stomach and telling the officers that he suffers from a hernia. Greer initially appears to offer minimal resistance to the multiple officers who are by now surrounding him, at least until they violently and decisively slam Greer to the pavement—on his stomach. Six or seven police officers pile on top of Mr. Greer and struggle violently to handcuff him. He is hit multiple times with a Taser weapon, in both drive-stun (direct application of the Taser to the body for “pain compliance”) and probe mode (shooting of electrified darts or “probes” into the body for temporary immobilization). Greer is slowly and excruciatingly pummeled into the ground for 19 agonizing minutes until the officers realize that Mr. Greer had become non-responsive, having gone into what doctors refer to as “traumatic asphyxia”—essentially Greer suffocated to death. Policing was indeed perilous for James Greer on that fateful evening.

What surprised and concerned me about the Hayward incident was that it had taken place on May 23, 2014—several months before Michael Brown’s death at the hands of then-police officer Darren Wilson in Ferguson, Missouri, an incident that garnered worldwide attention, not least for the highly militarized and arguably heavy-handed police response to the protests that followed Brown’s death. Mr. Greer’s death had never been publicly reported by law enforcement officials in Hayward or in Alameda County and had only come to the public’s attention when documents and records obtained under subpoena by attorneys representing the estate of James Greer were released to the media—in October 2015 (Lawton, 2015), 18 months after Greer’s death.

That the police in the United States, who swear an oath to uphold the Constitution and to protect and honor civil rights and civil liberties, could cause the death of an unarmed African American man following a stop for a traffic violation comes as no surprise to those familiar with the workings of the American criminal justice system. But that an in-custody death at the hands of police could be concealed, hidden, and not reported to the public in the second decade of the twenty-first century should be cause for consternation, if not alarm.

For law enforcement in the United States, the Constitution is often viewed as an obstacle to be overcome rather than a binding legal dictum prescribing the contours and limits to the authority of the police. Few police officers who I know or have met over the decades can enumerate the five freedoms contained in the First Amendment (and I was at times during my career as a police officer certainly guilty of this deficiency). That a police officer could, in a career that spanned decades, be patently unaware of the provisions of the Constitution and the Bill of Rights that relate specifically to the law enforcement function is really quite remarkable if not wholly inimical to the public trust.

Yet despite receiving training at the novice level in constitutional law in the police academy, that training is quickly forgotten and dispensed with once confronted with the vagaries of policing in the street. So, for example, when the bulk of 911 calls that I responded to as a young police officer in the late 1970s were “gathering causing annoyance” reports, there were no deliberations of the provision in the First Amendment regarding freedom of assembly. The “gang” needed to be dispersed and any resistance to this directive on the part of those freely assembled could and would be met with physical violence or arrest (or possibly both). Constitutional rights and civil rights and civil liberties protections had become nothing more than a classroom abstract, quickly dispensed with upon graduation from the police academy.

When Police Run Afoul of the Constitution: The Role of “Commissions”

In considering law enforcement’s historical and somewhat tenuous relationship to the Constitution, one that has often been inimical to civil rights and civil liberties protections, it may be instructive to begin in a consideration of the role of the police in the enforcement of the Eighteenth Amendment. Consider this the twentieth century’s first foray into an examination of a series of constitutionally questionable policies and practices that persisted with some degree of regularity through the decades that followed the passage of the Eighteenth Amendment in 1919 up until the present day—100 years of police misconduct.

The Eighteenth Amendment, otherwise known as Prohibition, banned the manufacture, sale, or transportation of intoxicating liquors in the United States. It remained the law of the land from 1919 until its repeal 13 years later in 1933. The Volstead Act, the constitutional amendment’s enabling statute, detailed the specifics as to how the Eighteenth Amendment was to be enforced.

This is in no way to suggest that corruption in policing began with enforcement activities relating to prohibition circa 1919, to the contrary; policing in the United States since its inception in the mid-nineteenth century had been notoriously corrupt and brutal. But corrupt police practices were so pervasively and thoroughly (and publicly) corrupt in the enforcement of Prohibition that by 1929 President Herbert Hoover found it necessary to establish the National Commission on Law Observance and Enforcement, otherwise known as the Wickersham Commission, to examine issues related to the enforcement of laws relating to Prohibition and to observe relevant police practices being conducted at the state and local levels.

The Wickersham Commission found widespread instances of warrantless searches and seizures being conducted by enforcement agents in violation of the Fourth Amendment. The Commission reported in 1931 that “high-handed methods, shootings and killings, even where justified, alienated thoughtful citizens, believers in law and order.” Further, it found:

Unfortunate public expressions by advocates of the law, approving killings and promiscuous shootings and lawless raids and seizures and deprecating the constitutional guarantees involved, aggravated this effect. Pressure for lawless enforcement, encouragement of bad methods and agencies of obtaining evidence, and crude methods of investigation and seizure on the part of incompetent or badly chosen agents started a current of adverse public opinion in many parts of the land.

(National Commission on Law Observance and Enforcement, 1931, p. 82)

The Wickersham Commission would be followed in the ensuing decades by many other commissions, panels, committees, and investigatory initiatives that were most often established by elected officials in the aftermath of scandals involving the police and corrupt practices that were violative of the Constitution and the civil liberties and civil rights of individuals and groups.

It was the period beginning in the 1960s through the 1970s that proved to be a watershed for policing in the United States, a time of widespread civil unrest, violence, and crisis. Although there had been rioting in earlier decades in cities in the United States, Chicago in 1919 (Armstrong, 2018), Harlem in 1935 (Robertson, 2016) and 1943 (Lewis, 1990; Leach, 2007), it wasn’t until the large-scale civil disorder that occurred in urban areas in the 1960s that actions and policies of the police, specifically as they related to their treatment of African Americans, directly precipitated and were flash points for rioting across the United States.

On August 11, 1965, near the Watts district of Los Angeles, a white California Highway Patrol motorcycle officer arrested a 21-year-old African American male on a drunk driving charge. The arrest drew a crowd that became hostile as more police officers were summoned to the scene; the crowd soon grew to approximately 1000 people according to police and more arrests were made. Chaos, violence, and rioting soon followed as up to 10,000 people, primarily African Americans, took to the streets. After six days, “thirty-four persons were dead, and the wounded and hurt numbered 1032 more. Property damage was about $40,000,000. Arrested for one crime or another were 3952 persons, women as well as men, including over 500 youths under eighteen” (Governor’s Commission, 1965).

In the aftermath of the Watts riot, Governor Pat Brown formed what became known as the McCone Commission to investigate the circumstances surrounding the riot. The Commission reported that there had been a long history of tension and animosity between the Los Angeles Police Department (LAPD) and communities of color. The disdain and resentment that African Americans felt toward the LAPD arose from repeated and long-standing incidents of police violence and brutality directed at residents of inner-city communities. “The bitter criticism that we have heard evidences a deep and long-standing schism between a substantial portion of the Negro community and the Police Department. Police ‘brutality’ has been the recurring charge,” detailed the report. LAPD Police Chief Parker (for whom the current LAPD Headquarters building is named), was particularly reviled and despised in the “Negro community” (Governor’s Commission, 1965).

Following the riot in Watts in 1965, cities across the United States erupted into what were referred to at the time as “race riots” or “racial disorders,” thus squarely affixing the incitement for the disturbances on those aggrieved by the historic and pervasive injustices inflicted upon African Americans by law enforcement.

On July 23, 1965, President Lyndon Johnson established the “President’s Commission on Law Enforcement and the Administration of Justice.” In February 1967 the Commission issued a report entitled “The Challenge of Crime in a Free Society.” Among its many findings, and consistent with McCone, the Commission observed

that too many policemen do misunderstand and are indifferent to minority-group aspirations, attitudes, and customs, and that incidents involving physical or verbal mistreatment of minority-group citizens do occur and do contribute to the resentment against police that some minority-group members feel.

(President’s Commission on Law Enforcement and Administration of Justice, 1967, p. 100)

On July 28, 1967, President Johnson established the National Advisory Commission on Civil Disorders, otherwise known as the Kerner Commission, to investigate the causes of the unrest. The Commission came to a basic conclusion that “Our nation is moving toward two societies, one black, one white–separate and unequal” (National Advisory Commission on Civil Disorders, 1968). The Commission studied 24 disorders in 23 cities that occurred in 1967, out of a total of 164 reported disorders nationwide. The Commission found that, although the underlying grievances that precipitated the disorders varied somewhat from city to city, the most intense and commonly expressed grievance, and one common in all of the 23 cities studied, were police practices. The report also identified a common underlying issue with policing in affected cities:

The police are not merely a “spark” factor. To some Negroes police have come to symbolize white power, white racism and white repression. And the fact is that many police do reflect and express these white attitudes. The atmosphere of hostility and cynicism is reinforced by a widespread belief among Negroes in the existence of police brutality and in a “double standard” of justice and protection–one for Negroes and one for whites.

(National Advisory Commission on Civil Disorders, 1968, ch. 4)

Conspicuous in their absence in the Kerner Commission Report are any references to civil liberties and civil rights; there are but two references to the Constitution in this lengthy report, referring to those individuals who “go beyond constitutionally protected rights.” There is no mention in the report of the role of the police as defenders of the Constitution, their responsibility to protect civil rights and to respect civil liberties. There were 83 deaths reported during the civil disorders that occurred in 1967, over 80 percent of them in Newark and Detroit. Ten percent of the dead were public safety personnel—police and firefighters. However, “(t)he overwhelming majority of the persons killed or injured in all the disorders were Negro civilians” (National Advisory Commission on Civil Disorders, 1968, ch. 4).

More commissions would be established in the aftermath of corruption and related scandals involving police departments in the decades following the 1960s. In 1970 then-New York Mayor John Lindsay established the “Commission to Investigate Alleged Police Corruption,” otherwise known as the Knapp Commission (Burnham, 1970), following allegations of widespread corruption in the New York City Police Department (NYPD) made by Detective Frank Serpico and others.

In 1992 then-Mayor David Dinkins established the “Commission to Investigate Allegations of Police Corruption and the Anti-Corruption Procedures of the Police Department” otherwise known as the Mollen Commission, to investigate further allegations of entrenched corruption at the NYPD (Commission to Investigate Allegations of Police Corruption and the Anti-Corruption Procedures of the Police Department, 1994).

The Police and the First Amendment: Freedoms Subordinated to “Public Safety”

The summer of 2004 was the beginning of the end of my career as a Boston police officer, and in that year the city of Boston hosted the Democratic National Convention (DNC) at what was then called the “Fleet Center” in the downtown area of the city. John Kerry, then a U.S. senator from Massachusetts, would be confirmed as the party’s nominee for president, and the world got its first glimpse of the DNC’s keynote speaker and the man who would become the 2007 nominee and later president, Barack Obama. I was a lieutenant in the police department at the time and actively involved in the planning for the DNC, a convention that would bring thousands of the Democratic party faithful, as well as (it was believed) thousands more protesters.

The training in the leadup to the DNC was months long and extensive. As police managers, our leadership role in the tactical and operational components of overseeing the protests and the police response was critical. We were repea...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Introduction
• 1 The Police, the Constitution, and Civil Rights and Civil Liberties
• 2 Technology and Privacy in the Era of Homeland Security
• 3 Deadly Force: Compliance, Confrontation, and Consequences for African Americans
• 4 Black Lives Matter: Interrogating and Challenging the Law Enforcement Narrative
• 5 The “War Against the Police”: The Fictive Response to the New Accountability
• 6 The “Immigration Police”: The Demonization of the “Other”
• 7 “Soldier Up”: The Consequences of Militarization for Communities of Color
• 8 “Taking Off the Cuffs”: Police Retrenchment and Resurgence
• 9 Fusion Centers: An Unholy Alliance of Federal, State, and Local Law Enforcement
• 10 Perilous Policing: “That’s the Signpost Up Ahead”
• Index