Policing’s Big Picture

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S1: The following program may offend those with delicate constitutional.

S2: It’s Wednesday, July 8th, twenty twenty from Slate’s The Gist. I’m Mike Pesca. Amy Cooper, the Central Park. Karen and Kristen Cooper, the Central Park birder, will forever be entwined. Christian Cooper doesn’t want to, but he will not be participating in the effort to bring charges against Amy Cooper. Quote, Bringing her more misery just seems like piling on. He says, The word I would apply to Christian Cooper is Grace. He is handling this all and has handled it with such grace. Doing the right thing at the time. Doing the smart thing by taping Amy Cooper, modeling poise when the onslaught of attention came going far out of his way. Not to demonize this figure who did something truly awful to him. Now, of course, Christian Cooper, who never asked to be threatened by what all accounts seems to be a fairly disturbed or at least very petty woman is feeling it from some critics. Twitter user Wonder King, 82, writes Christian Cooper refuses to cooperate in the case against Amy Cooper. This ain’t about you anymore, Christian. You have to do this for the next black person because the next one won’t be as lucky. If they run into another Amy Cooper, who will succeed, stop this nonsense of forgiveness. Twitter user at Bay of Arizona writes, This is to protect future victims. I don’t care about his opinion. The fact that he’s refusing to cooperate means he is willing to be held in contempt to ensure she doesn’t have to do community service. It’s strange that he cares about her more than other black people in NYC. And finally, at Fred T Joseph, the writer, Frederick Joseph, author of Black Friend, writes, The Christian Cooper story is disappointing but not surprising. Our community upholds white supremacy very often. Wow, harsh. I do feel the urgency to prosecute Amy Cooper. Personally, I’d want to have seen her prosecuted immediately. It’s a misdemeanor charge and it seems fairly easy to prove with or without Christian Cooper’s cooperation. Now, Jose Duffie Rice, the president of the appeal, disagrees. She wrote, Ask yourself what criminal charges can do to Amy Cooper. That hasn’t already been done. Has she not faced consequences? She did something absolutely horrible and she lost her job. Her dog, her personal business was on the front page of the paper. Rice adds, It’s the easy way out and it reinforces the idea that justice can only be found in the disastrous carceral system we’ve created. So add up that critique. And Duffy Rice is saying the criminal justice system is so broken that informal mob justice is preferable to it. I know there are people who agree with this, but I don’t think it’s dangerous. Let’s all patrol our neighborhoods and houses in armed posses. Amy Cooper, losing her job might have been a rough kind of informal justice. We can’t rely on that. I don’t weep for her at all. But I would always prefer an orderly, actual criminal charge for a criminal act, then some sort of haphazard private censure that will rarely be commensurate with the crime and any thought out way. I do believe, by the way, in the case of Amy Cooper, her employers probably had to fire her. It was untenable for her to stay on with Templeton Funds. They kind of lost billions in investments. An odd aspect to the prosecution. However, even without Christian Cooper in, it is offered by Alan Bragge, quoted in The New York Times, identified there as a former federal prosecutor and a professor at New York Law School. He was not identified this way in The New York Times. I’m Alvin Brad and I’m running for Manhattan district attorney. But he is. He writes about Amy Cooper’s false police report. There is a false weepy tone and she strategically placed significance on race. She is harping on deep historical issues in our country. She is emphasizing those words and she knows the effect it can have on the listener. None of those facts seem to me to be particularly relevant to whether it was a true or false report. I mean, the use of race makes the false report quite insidious, but it’s not what makes it a false report. If anything, Braggs kind of laying out a roadmap for how to file a false report without consequence. You have a flat affect. You only offhandedly mentioned the race of the person you’re lying about. Definitely don’t emphasize it. I do think a conviction will be possible without Christian Cooper’s cooperation. I do think a conviction is warranted. I do think Christian Cooper should do whatever he wants. To quote the writer Carvelle Wallace about all the criticism Christian Cooper is taking. He just released Christian Cooper from this cycle like, don’t we have a whole fucking society and legal system and Internet and tapes and prosecutors to do the work of fighting racism and weaponized whiteness? Please let this man alone to be with his birds on the show today. Keeping it local, New York City, the greatest city in the world. The entire contents of today’s program not withstanding in the spiel crime in New York City and how the police commissioner is just making up explanations for it. But first, let’s step back and think about the. Bigger picture of policing. Barry Friedman is founding director of NYU Laws Policing Project. He consults with departments across the country and world. And he joined me now for the first of two interviews. This one is on accountability practices in specific cases like those of Rashad Brooks and George Floyd, Barry Friedman of.

S1: Barry Friedman is one of the country’s leading authorities on constitutional law and policing. His latest book is Unwarranted Policing Without Permission. And he has just been appointed to serve as a special adviser for the New York attorney general’s investigation into recent interactions between the New York City Police Department and protesters. I want to get into that specifically that assignment and what his research shows about reforming policing in America. Thanks for joining us, Professor Friedman. So happy to be here. So let’s just talk about this latest job. You’ve been tapped for. Do you know the contours of the assignment?

S3: I do. And I’ll say a little bit, but I hope you’ll understand that I’m going to be very careful because I don’t want to prejudge anything. And we are still in the middle of our work. But basically, the governor of New York, Cuomo, he asked Attorney General Tish James if she would investigate the conduct of the NYPD toward protesters in the wake of the killing of George Floyd. As you know and as everyone knows, there are many street protests. The other special advisers, Loretta Lynch, who is the attorney general in the Obama administration, we’ve held public hearings. We held two days of hearings that we heard from the public generally. And then we had an hour with the police commissioner from New York. And the investigation is ongoing. And so I want to I want to be careful not to to say anything more specific than that.

S1: How vital to your investigation so far is video evidence?

S3: You know, I think it’s fair to say that video evidence has transformed the way we see policing. I, as others, have worked in this space for a very long time and been aware of any number of issues that, you know, I think the public either was unaware of or even resisted believing. And then around Ferguson and after Ferguson, video from bystanders just completely changed the way that people see the police and what it is the police do. And today, as in so many areas, video is crucial.

S1: And that is informing this current investigation, too, into how the police interact with protesters very much.

S3: Even when you have the imagery, you don’t always know exactly what’s happened. You know, we can delude ourselves into thinking that you see the picture. You know exactly what happened. But, yes, you get a much more vivid understanding of exactly what occurred when you can watch video and that. And there have been the A.G. has a portal for people to submit videos. And there have been countless videos offered up.

S4: OK. Now, it does seem to me, though, that in any police interaction, there will be if you go further up the chain, some point of opacity, some point where the decisions were made outside the view of people who were taping either a decision on how to deploy or who to deploy or what tactics to use, and opposite being able to get at that. How do you really make the case beyond the some bad apples case? How do you really show that there were tactical or strategic decisions made that allowed this to happen? Because I think that’s the important thing to try to root out, as opposed to just documenting these 10, 20, 50 officers did something wrong.

S3: When I founded the policing project between five and six years ago and this is what my book is about, a light bulb went off in my head a few years ago, which was that, you know, people will complain about the police and complain about the police and argue about accountability. But when they do that, they always mean what we at the policing project called back and accountability, which is something’s happened and people want to know, you know, who’s responsible. And so whether it’s a criminal prosecution or a civil rights action or a DOJ investigation or a civilian review board, or if you think about it, body cameras, it’s all aimed at, you know, after the fact what happened. But when we think about accountability in the rest of government, that’s not how we think about it at all. In the rest of government accountability is on the front end, which is that we have democratically elected representatives or appointed officials and they make policies and rules, just like you’re talking about. But they do it transparently and they do as public input. And that’s what’s been missing from policing for most of our history. And that’s what you’re getting out there, which is that, you know, at the end of the day, when you do the back end investigation, you hopefully learn something so that it doesn’t have to happen again.

S5: Right. It’s like the model of let’s design our roads only after crashes happen and then we’ll say, oh, maybe there should be a stop sign there. Well, there are plenty of smart people who design roads and they take that data into account. But a whole lot of other data to try to design a road that minimizes deaths and fatalities. We should do the same with policing only. It’s sometimes hard to do that. I mean, to take the analogy further, it’s as if our road designers had these unbelievably powerful unions and maybe the citizenry was. Scared of a poorly designed road. So they gave the road designers free will, would be in a horrible situation and road deaths would be a lot higher than they are now.

S3: Deaths happen and bad things happen in the dark and scary woods where most people don’t go and they hear reports about bad things happening and they don’t really know because they don’t go there. You know, they just might think that maybe it should be different, which is just to say most people. Are not policed. It’d be fun to talk about traffic. I’d love to talk to you about traffic, because that’s a place where people are policed. But a lot of what we’re seeing on the streets right now is that communities that are policed and ironically, both under and overpoliced at the same time have had it. And they are expressing a strong set of views that many people in the public have avoided having to confront. Because, you know, that’s where your analogy falls down, because in theory, they’re not on those roads.

S1: So you have among your many projects is the police executive research forum in this group has made strong recommendations, guiding principles of use of force. And in a nutshell, I think what’s governing the use of force doctrines now is something like a standard that’s basically says to the police. You may use force and deadly force if you for any reason believe that your life might in any way be threatened. And what you’ve tried to articulate is that there can be a better set of standards. What are some of the fundamentals of those standards?

S3: Yeah. So that’s that’s a terrific question. And that he could hardly have picked a better example for what we’ve been talking about, the use of force. So and to be clear, my policing project I work for has drawn on the PERF rules about use of force. But let’s talk about that. So the Supreme Court in the 1980s gets this case where there’s a guy who’s acting strangely and they start, you know, roughing him up a bit and he tries to say, I’ve got diabetes and I need to, you know, I need to get some sugar and some nourishment. And they don’t let him and he gets injured. And after the fact, the Supreme Court says, we judge what the police do. This is the whole way we’re gonna judge use of force by asking whether at that moment it was objectively reasonable at the very moment that the cop did something. You know what other cops say that that was objectively reasonable and that’s the only guidance we can give you. So a big kind of like if you said to, you know, anybody in any other business or doctors, do your best, do what other doctors would say would generally be OK with with no other rules.

S1: Right. And by the way, in the moment in the moment you’re making the incision and not informed by what you should have researched beforehand or the amount of anaesthesia you should have, you should have applied, for instance.

S3: Yeah. Yeah, yeah. Exactly right. So, you know, one of the things, for example, if you think about the tragic death of Tamir Rice in Cleveland is the one I always use the example of cops go racing up in response to a dispatch call about a guy with a gun. They’re they’re never told that. The caller says that it could be a kid with a toy gun. They fly immediately up to him and he’s dead within seconds. And the question you ask is why they fly all the way up to the cop car like the park was empty except for him. If they thought he had a gun, why did they stop a distance back, pull out a bullhorn and say, put your hands in the air, he’d be alive today. But under the Supreme Court’s test, none of that matters. Like anything that you could have done to avoid the situation is irrelevant. So what happens is a number of organizations, including the Police Executive Research Forum, which issued what they called a per 30 set of guidelines, you know, asks people to look at a number of factors and how a real some of them out. He wrote them into a policy in Camden. It’s proven very popular. And it’s not rocket science. It’s stuff like we need to have care about the sanctity of life. Force has a role, but it should always be a last resort. You should use time and distance and cover to avoid having to use force if you can. If you use force, you should immediately see if you can render aid to the person against whom force was used. So you know this again, I say this is not rocket science, but what we don’t do in policing is we don’t write the stuff down and then trained to it. Now, most departments have use of force policies, but I’ll just say two things about that real quickly. One is a lot of them are based on that 1980 Supreme Court decision and not this more specific set of guidelines. And the other is, you know, you tell me, why does every state in this country not have a statute that says all that? Why is each of the 15, 18000 departments in this country figuring it out for themselves? It makes no sense.

S1: So let me ask you this case. This is Graham that you’re talking about, right? Yeah. OK. Does there have to be a new case for the Supreme Court to reinterpret to change that interpretation? Or it can. If all the individual departments use these PERF principles and rewrite the use of force, then will that be a de facto end around the Supreme Court having to rewrite rule? Because what if a police officer gets into a situation and maybe he contradicted what his local department has to say? Doesn’t he still have the Supreme Court in his back pocket justifying the use of force as he used it?

S3: Yeah. So we should talk about let’s separate out two things. We should talk a little bit about qualified immunity and when cops are are liable for the things that they do. But the important thing to understand about the Supreme Court is because legislative bodies in this country have been afraid to do anything around policing pretty much ever. We’ve left it to the courts to regulate using the Constitution. And that’s that’s bonkers in its own right. The Constitution is supposed to be only a flaw. Like, if you fall below the Constitution, then you’re you know, it’s pretty terrible. But it’s never meant to be anything other than a flaw. It’s always been open to legislative bodies and the police themselves and executive officials to say, you know, that floor isn’t going to be our standard. We’re going to do better than that. And so there’s all of the you know, it’s rare that the Supreme Court does something that like everybody’s frozen in time. They could always put in place stricter standards when an incident happens. The question is, what are the courts do about that? And that’s the law of qualified immunity. And that’s a hot mess.

S1: Right. I do want to ask about this shooting of Rashad Brooks in Atlanta, specifically the mayor of Atlanta. Kichwa Lance Bottoms said there should be a difference between what you should do as a police officer and what you can do or could do. And I took that to mean that she was acknowledging that the law was essentially giving that police officer not permission, but would not be sanctioning that police officer for the shooting. And she was making a call essentially saying that doesn’t mean that it was morally right or even, you know, justified his future employment. So you could get into. I mean, I’m sure you’ll be loathe to get into the nitty gritty of that case. But I’ve been thinking about that tastes a lot. I don’t know if you heard the mayor say that, but did you interpret her statements in that way? And are you looking at the case as much as you may or may not have been looking at the case as anything of a referendum on what are interpretations of use of force by the police might be going forward.

S3: So she really echoed something that cops will say all the time. You know, I remember after Philander Castella’s was killed, so many cars said this, which is well, not not with regard to that killing in particular, because that was particularly horrific. But they’ll often say this expression lawful but awful meaning under the Supreme Court’s governing rules that might have been OK to do. But under no circumstances should it ever have happened. Now, I do think that that alone is kind of a condemnation of the Supreme Court that even a lot of cops think the Supreme Court’s bars in the wrong place. But it is certainly a fact that there is a vast difference between what’s allowed and what ought to happen. And I just want to make a point that goes back to where we were on use of force and this idea of front, end and back and accountability, which is people are always so frustrated. I mean, you hear this about, you know, how cops are not held accountable, meaning they’re not punished. But it’s hard to punish anybody on the back end if you don’t have the right rules on the front end. That’s only basic logic. And that’s part of what’s fallen apart here, is if legislative bodies put these rules in place clearly, then there’s going to be responsibility. It’s that’s a fact.

S1: So then what do you make of what the prosecutor is trying to do in charging murder is something close to that. Right. Issue accountability. But try to strive for accountability, even if the law might not be perfectly aligned with what his case is.

S3: Well, you know, there’s two separate things going on here. One of them is that clearly the salience of these issues has hit home. And prosecutors have come to realize that they need to take their responsibilities seriously and charge police officers when that’s appropriate. That’s not something a lot of prosecutors have been willing to do because they work very closely with the police and often have, you know, sentiments in that direction. Then there’s the question that you properly raise about having charged, you know, are you likely to get a conviction that’s going to depend on factual circumstances that neither of us actually know all of at this point and we can’t judge it. Prosecutors ought not actually to charge things that they can’t get convictions for. You know, that’s a problem. And I’ll just point out, you can’t feel differently about cops and then all the other criminal defendants can’t be hypocritical in that way. The prosecution needs its own spotlight turned on it. But we just we just need to know the facts to see what happens.

S1: Yeah. So are you familiar with DeRay McKesson in his group? He has an eight reforms that can’t wait agenda. Yeah, of course it can’t wait. Yes. Yeah. Do you think that they’re all eight? Can’t wait. Are some in your studies more important than others?

S3: So the thing about it can’t wait. And we’ve said this about campaign zero materials in the past, which is they don’t look that different than Camden’s use of force policy, which is it’s again, it is not. That’s the thing. It is not rocket science. And we’ve just gotten off the rails here somewhere where because the Supreme Court was so permissive and has been so prominent, the courts are just unbelievably permissive to the police. That is a real problem culturally. And, you know, then you can’t blame the police for getting used to that world. I mean, think about your own life, right? If somebody said to you, you can do whatever you want with impunity, you would squeeze when somebody wanted to impose some rules on you, you wouldn’t you know, even if there were good rules, you wouldn’t be loving it. And so that’s yet where we are.

S4: Yeah. And I wouldn’t tell myself a story of life and death, which may actually be a true story.

S3: I mean, precisely. And, you know, that is. I could have said it better than you just did.

S4: This is not the part of the eight. Can’t wait. But he and his group have done research into diversity in police departments, and they found that at about 35 percent African-American, there is a demonstrable difference in use of force. I have no idea if that. No, I don’t think it’s a magic threshold. But it seems to at least appeal to my intellect that as you diversify a group of people, maybe the overall group, their attitudes will change. What about that? What does your research show in terms of having a diverse police force?

S3: So, you know, it’s interesting. You could have diversity along a spectrum or a number of different factors. So let’s name three, racial diversity, gender diversity and a different form of diversity. But residential diversity, because a lot of times what you hear is people say we want the cops to live in the community. Yeah. And the research varies on each of those. So on the residential loan, which people argue about all the time, there’s not much research to support that. Having the cops come from the city in particular, you know, matters. Right. Racial diversity. I mean, I think it’s only natural that the citizenry that is police do we should talk maybe about that. You know, passive used to that verb, would like to see folks in cop in police uniforms that look like they do. And that’s look that’s the world that we’re living in everywhere. I mean, smart business folks have learned long ago that they have to have employees that look like their customers. And then gender’s really, really interesting. We have a woman who works with us at the policing project, Maureen McGoff, who came over from the National Police Foundation. And Jane, she is involved in a project about women in policing. And there is data to suggest that women do police differently and that, in fact, we might do well to have more women in policing.

S2: And that is Barry Friedman of NYU Law Policing Project, author of Unwarranted Policing Without Permission. Tomorrow, you’ll be back to discuss the idea of unconscious bias and what would constitute a good police department. And now the spiel, crime rates in New York City, violent crime shooting, really spiking 205 shootings in June, the highest for June in 24 years. Over the weekend, 64 people were shot in New York City, 10 of them fatally. Other cities, notably Chicago, are poised to break their already shockingly high murder records. Philadelphia, 34 shot, seven dead over the July 4th weekend in St. Louis two nights ago. Three people died and 10 total were shot. That was in the span of seven hours on July 4th. Not the weekend, just the day and night of July 4th. Three people were killed. Eleven injured in shootings. The youngest victim was four. The explanation for these shootings, these crimes in all jurisdictions are common. Some try to make the claim that the police are cowed. In the wake of protests, there’s no proof of that. Could be true. More plausibly is the pent up populace is really emerging from quarantine in full fettle with all their emotions positive and negative at their highest. Maybe even some grudges, too. So that’s everywhere. But here in New York, there is a specific explanation that the police are offering. Here is New York City Police Commissioner Dermot Shea on Newsradio 10, 10 wins.

S6: When you take basically half the population of Rikers Island and put it onto the street and then wonder what’s going on, it’s just it’s dumbfounding to me.

S2: Other localities have allowed prisoners out in Chicago, Cook County jail. At one point, the entire country’s number one covered hot spot released some prisoners. One was arrested for murder afterwards, but it was a months old murder that predated the corona virus crisis. So how does the police commissioner in New York back up his claim Newsradio 10 10 wins wondered as well.

S3: Do you think that is? Is there some evidence to suggest that the people who are being released with prior offenses or who are at because of cover 19 are the ones driving this problem? I mean, is there hard evidence to suggest that at this point?

S6: Well, listen, Kathleen, I mean, when you look at when you look at the precision policing and what we’ve done over the last. This is what I would say to the people. If your car is broken, you bring it to a mechanic. If you have a headache, you go to the doctor. But for some reason, everyone believes that they know more about law enforcement than the people that are on the streets every day.

S2: How is that an answer? Is there evidence that anyone released from Rikers committed a statistically significant number of these shootings? Simple cause and effect. You have to get into disentangling nature from nurture or chicken and egg just OK. Let’s look at the rights. Rikers releases. How many of them shot someone? Two thousand five hundred prisoners were let out of Rikers to alleviate overcrowding of the 500 some odd people shot in New York this year. One one shooting suspect who’s been arrested was among those Rikers prisoners. Overall, 11000 prisoners have been released from Rikers, one of them in addition to the one I mentioned. Another one of them released because of bail reform, also has been arrested for a shooting. So if you want to know, percentage terms point two percent of shooters released from Rikers. Point zero to five of those released from Rikers were shooters. It’s not the explanation. So I mentioned bail reform. Dermot Shea has been dead set against it since it was proposed. It went into effect January 1st. He immediately started blaming an up tick in crime on bail reform. For instance, in the month of January, shootings were up 28 percent, but murders were down. Shea blamed Bell reform in the month of February, shootings were up twenty two point five percent. Murders were down 20 percent. Again, Shea blamed Bell reforms before anyone knew the names. George Floyd or Briona Taylor. It was before Cauvin bail reform was his answer then. Bail reform is his answer now, but it just doesn’t add up. We know all the people who are released who would have stayed in jail without bail reform and as I said, only once been arrested for shooting another police officer in New York, the head of the police union, the intemperate Pat Lynch, has a blunter diagnosis of why crime is up.

S7: And the answer is simple. There’s been a message not only from city hall, but from the state House that says there will be a soft side that is aggressively wrong.

S2: But it does highlight the good. Bad cop routine that’s been going on between these two members of the police force. Lynch the bad cop or bombast and threats and talking to the worst impulses of his union membership. Shay uses his inside voice sometimes. He’s also sitting right there next to Mayor de Blasio, who nods along with his police chief’s assessment about bail reform and Rikers release. Even though de Blasio, trying to lay claim to progressive credentials, says he’s for bail reform, it doesn’t blame the Rikers release. Shane, by the way, is also calling for New York City to rewrite its ban on chokeholds. He calls it the diaphragm ban because he says that police officers in the normal course of wrestling with a suspect might compress the suspect’s diaphragm. I think all of this adding it up tells us something about the nature of reform, something that goes way beyond New York. The mayor. Lots of mayors out there, elected officials who listen to the citizens say they’re into reform. They’re committed to reform. And the New York City, York City Council, local city councils passed bills. But then a union chief is an ember in the eye of progress and the police chief might be a bit more genteel, but will contradict the mayor of the wisdom of the actual reform. What would the police chief tell his officers? I’m sure his words will be. This is a regulation. We have to follow regulations. But the message will be not even an unstated message. We hear him saying it time and again that this is a bad regulation that we shouldn’t have to follow. Is Dermot Shea such a great commissioner that he can’t be brought in line? Is reforms so tenuous? It has to rely on the good graces of leaders who swear to follow the rules as crimes so high because we tried reform. They’re all unknowns, as is the quite pressing question. Cities across the country. What’s going to be the death toll this weekend? What’s the cure for that? What’s the cause of that? Are those two things in any way related? And that’s it for today’s show. The gist is produced by Daniel Shrader, Margaret Kelly with executive producer of Slate podcasts, Alicia Montgomery. And they would all like to be left to their damn birds, their chicken plucking, mother flocking birds. The gist, the bird that I most like is the buff rump warbler. But I fear I’ve said too much. Desperate to prove. And thanks for listening.