A Most Difficult Act

[Ed. Note: Anyone who has ever served as a police officer will understand the difficulty of criticizing a fellow officer; moreover, a man I hired and trained. I even wrote about my personal experiences with being blue in Arrested Development. But if policing is to advance and improve, we must find ways to do this. In my case, I had repeatedly tried to give this chief feedback. It was met with anger and resistance. I tried to bring other retired officers to come with me. It also was rejected. So, I now bring my concerns openly to the community of which I once served for over 20 years…]

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A Time to Speak Out: The Arrest of Genele Laird and Future of Police in Madison

Statement of the Rev. David C. Couper, Chief of Police (Ret.), Madison, Wisc., and Lecturer in Criminal Justice, University of Wisconsin – Platteville.

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Let me begin by saying this: It is disturbing to have to speak out. I have repeatedly tried to provide counsel and feedback to Chief Koval without success and that is one of the reasons I am writing this.

Secondly, community-oriented policing is just what it says: community-oriented and that means the people determine the propriety and legitimacy of police policies, operations, and tactics – not police. And that may mean requiring the police to raise their standards even though they may be operating within the law.

After having served as a a police officer for over 30 years makes criticizing them very difficult, but then that’s just not my problem, either.

I also speak as a father who has two daughters of color.

The reluctance of good cops over the years to correct the behavior or criticize the bad cops who continue to disrespect and use excessive force on community members keeps police in the dark ages. It is these behaviors, however infrequently they occur, that continue to erode the effort of police to rebuild trust and support in their communities. It impedes their growth, improvement, and effectiveness.

I am going to talk about the arrest of Genele Laird last week and how it points to a larger problem with police in our community. It will not be about bad cops. Or cops acting illegally. But rather poor training and leadership.

In the past, I have commented on the deaths of Paul Heenan and Tony Robinson. This, thankfully, is not a discussion about the death of another person, but rather the low state-wide standard used to contain and overcome resistance and a failure of leadership.

Let’s first look at training. The law permits police to use force, including deadly force, in a very broad sense. The Graham decision in the late 1980s permitted police to use deadly force if they could articulate they felt threatened.

For a number of reasons this happened, not the least of which was the shift of our nation’s police toward militarization. Around our country, citizens have witnessed video accounts of police shootings in which the officers were found to have acted within the law. To many, the use of deadly force seemed beyond reason and citizens cried out, “Why did they have to kill him?”

And that’s why this standard very appropriately called “lawful, but awful.”

Simply stated, the Graham standard is unacceptable to use in training police when they should use deadly force. When Graham came down in 1989 we did not change how we were training our police.

The Madison community has gone through the pain, grief, and turmoil surrounding the deaths by police of Paul Heenan and Tony Robinson. Do we want to wait for another death, another tragedy, before we require the current deadly force standard by which police are trained and led to be raised to an acceptable level?

One example of why police policy often needs to be more restrictive than state law was when I came to Wisconsin. Wisconsin state law permitted police to use deadly force in stopping any fleeing felon regardless of the persons level of dangerousness.

We questioned that because it meant that police were authorized under state law to use deadly force to stop any fleeing person, often a juvenile, who had stolen an automobile, or who had stolen property or burglarized an empty residence.

It was quite obvious to me that the Madison community did not want police to use deadly force in those situations, and neither did I. In response, and aided by staff from the UW Law School, we developed a policy – a rule – that raised the standard of deadly force: deadly force could only be used to stop fleeing, dangerous felons. At the same time, while Wisconsin law permitted the use of deadly force against any fleeing felon regardless of their danger to the community, not so for Madison.

We wrote a policy restricting our police from shooting non-dangerous felons and we showed a way forward. Soon after, the USSC issued their opinion in Garner v. Tennessee that restricted police along the lines of our policy.

Later on, though permitted by law, we restricted police officers from shooting at moving automobiles because it endangered citizens. Police further were restricted from continuing high-speed chases when doing so posed a greater threat to the community. All being examples of having a community standard higher than what the law provided.

The situation we find ourselves in today is no different.

I am not the only voice recommending that the Graham standard be raised. More recently, the President’s Task Force on Policing and leading police chiefs in our nation belonging to the Police Executive Research Forum (PERF) issued 30 guidelines that called for raising the Graham standard.

As an example, police within the European Union are allowed to use deadly force only when it is “absolutely necessary.”

And progressive police agencies throughout our nation are beginning to do just that. They, too, realize that the bar must be raised if they are going to be able to rebuild community trust and support. It is the right and moral thing to do.

And this certainly applies to how police respond to the mentally ill, those who are unwilling or unable to respond to police commands, who are often unarmed or with an edged weapon. Police must learn to handle these frequent encounters without resorting to the use of deadly force.

This means that alternative conflict management and de-escalation techniques must be taught to all police and that they are always the first steps taken in responding to these incidents. And when the police are unwilling to do this, the community must demand it, and the police must comply.

Throughout the country, progressive police and sheriff’s departments are raising the standard of policing concurrent with the “Six Pillars” of the President’s Task Force. Fifteen police departments across the nation have been identified as models of 21^st century policing by the U.S. Department of Justice. One is from Wisconsin, the Kewaunee County Sheriff’s Department.

Why is the Madison Police Department not among that number? Why are they not one of the model departments in the nation?

Now, with regard to leadership.

Chief Koval appears to resist raising the deadly force standard and the state use-of-force protocols . He has been quoted as saying the department’s use of force standard is “non-negotiable.” Everything in a democracy is negotiable.

The police response to the East Towne arrest is an all too familiar historical public scenario, but with one exception – the video account.

Instead of a dominate police narrative, we have a visual account of the arrest of Genele Laird last Tuesday at the East Towne Mall. In this video, which quickly reached viral status, no doubt everyone who has seen it has made a judgment as the appropriateness of police tactics.

Not everyone, having viewed it, believes the police acted improperly. Others come away with various levels of concern, from being puzzled to outraged. Same video. Same circumstances. Different conclusions. Why the difference?

One can be pro-police and still require them to improve. One can be anti-police and still support police when they are making the right changes. We are all in this together.

In past years, an arrest such as this was usually confined to few eyewitness accounts, if any, and what the police had to say in their defense was accepted. And, in most cases before that day in Ferguson and its aftermath, the community gave the police the benefit of the doubt.

Not so today. In most cities, the police trust bank has been overdrawn. In many cities, it’s empty with insufficient funds. It’s time now for police to step up their game, put on their community listening ears, and act on what they hear.

No doubt the chief, who has viewed the arrest, has an opinion. I don’t know if he was upset by it, but he certainly should have been.

But at his news conference, he defended his officers. He described the bad behavior of Genele; she had a knife, made threats, spat at officers, and was non-compliant. But bad behavior should have no bearing on how police treat a person in custody. Period.

There is yet another twist to this public scenario: the head of Wisconsin’s police union, having also viewed the video, quickly assures the community that this was according to state training guidelines and legal use of force. He concluded, the officers did no wrong.

If the arrest of Genele was legal and appropriate, we are in deep trouble. And we need to make some significant changes in how our police are trained and how they are led.

We may also need to change the law as citizens did last year. Our state legislature, with Rep. Chris Taylor’s leadership, mandated outside investigations when police take a life. Police can no longer investigate themselves. It was the right thing to do.

In the meantime, the chief has rallied around his officers performing  one part of his job – that of “police cheerleader.” Yes, the chief is responsible for the care, nurturing and growth of those whom he leads. Yes, policing is a difficult and dangerous job and we must work to support our officers.

But being a cheerleader is not the only part of a chief’s job. The other part, and a far more important one at that, is to be everyone’s chief; the chief of the community – the people’s direct representative with regard to the quality of police services; to make sure citizens are properly and respectfully treated; to generously listen to their feedback without getting overly defensive – even if it hurts.

The chief is the one and only person in the community who is responsible directly to citizens for the performances of the police function — how police officers do their job, treat citizens, and, most importantly, obey the law and use appropriate levels of physical force when they must overcome resistance.

Both hats must be worn by a chief: one to support and lead police — and the other to represent,  protect, and defend the interests of those whom the police serve. If the chief fails to do this, those in the community most vulnerable to police action are helpless in the face of police power. Too often, chiefs forget this. And that’s why being a police chief in a free society is difficult.

When police chiefs have to make a call against one of their officers, they more often than not suffer a backlash from those with whom they have to work and lead – the men and women who are their colleagues, even close friends, and with whom they may have grown up.

More crucially, every police officer depends on his or her colleagues to come to their aid when they are in danger. While this is a commendable trait for teamwork, without honesty and integrity put into the mix, it ends up isolating police and enabling corrupt practices like false reporting or testimony. Often the internal backlash a chief may face is a lot worse than what the community can generate. And so police often remain silent when they see something wrong and, instead, “circle the wagons.”

Back to the East Towne video. We see knee strikes, multiple Taser applications, and a bag put  over the young woman’s head. Her resistance was broken down, she was finally handcuffed, and subdued.

These techniques  may be taught with regard to what’s best for police, but what about the community? What’s best for them? And what’s best for those in a community who have historically been abused by the police and mistrust them? What’s the message here?

Then there’s the matter of proportionality and reasonableness: two white male police officers attempt to control and arrest a teenager who is black and female. Should not this one fact alone cause the arresting officers to be more sensitive? Would they be comfortable with these methods being used on their daughter? You and I know the answer.

The manner  in which police use force matters immensely in a society that claims to be free and democratic. Over 150 years ago, Sir Robert Peel, the founder of democratic policing, noted that. He found that the more force police use in carrying out their duties, the less trust and support they have in the community. Less force, more trust. More force, less trust. So a wise leader will try to contain and control the use of force by his or her officers.

Without trust and support, police cannot be effective and their work can become dangerous in neighborhoods that have become hostile to them. If nearly one-half of all arrests in Madison are of people of color, then how people of color are treated is vitally important to Madison citizens and the nature and texture of this community.

How does the arrest in question look to those in the community with whom the police are trying to build trust and support? For example, while Genele allegedly spit at the officers, their response was to put a hood over her head. It functionally prevents officers from being spat upon and the hood is breathable. Technologically sound, but…

How does the hood look to those who may associate this hood with a terrorist? Did anyone question the use of this new piece of technology and how it might be perceived by the community? What’s wrong with using a common surgical face mask?

Who should analyze the potential effects of these and other various police operational methods? Should they be used against women and teenagers? Who should determine whether a potentially effective tactic is appropriate? Something deemed to be lawful, but not the right thing to do? The person who determines this is, of course, the chief. And, in the face of his inaction, the mayor and city council should step in.

Something must have gone very wrong from the beginning of the encounter with Genele. Does it go back to the initial and approved training they received? Is it how they have been led and directed? Is there a negative attitude about particular people in the city? Is it about unconscious bias toward people of color? Toward women?  Is there an attitude of us (the police) versus them (the community)? Whatever police do must be legal, but it must also meet community standards and expectations.

I think it’s also reasonable to expect that a police department that has historically thought of itself as “world-class,” would be able to act with a minimum amount of force, and be led by a chief bold enough to comfortably wear the two hats.

A competent chief would act without enraging the community and without disrespecting those elected to office. He or she would be able to demonstrate empathy toward those who  personally experience police action and would be capable of apologizing when an interaction has gone wrong and fixing it so it does not happen again.

What could the officers have done? They could have allowed time for things to settle down. They could have held Genele in an office within the shopping center until this occurred. They could have called for a supervisor, or a female officer of color, for help before they attempted to move her from the shopping center. And they also could have let her go, obtained a warrant, and arrested her later.

Thankfully, an elected official, District Attorney Ozanne stepped in and did not go along with the multiple felony charges placed on Genele by police. One might ask why were the excessive charges place on her in the first place?

Madison didn’t need to have another police racial event. Each one is cumulative and disruptive. If this one is not thoroughly resolved, the probability of another occurring is quite high. What the chief needs to do is to actively reassure the entire community–and especially the black community– this will not happen again and why it will not.

It will mean that in the future the chief must listen without getting angry or defensive. It may mean that the mayor and/or PFC have to take steps to coach the chief so that he can be more effective and less volatile – to help him balance the wearing of the two hats. No matter what, corrective action must be taken and what is being done shared with the community.  This must happen quickly.

Let me say that it is never appropriate for the chief to be angry, sarcastic, aggressive, or bullying Does the chief’s public emotional display on his blog and at the June 6^th council meeting send a bad signal to some of his officers? If the chief doesn’t have to be emotionally controlled and sensitive to others, maybe his officers don’t either.

The chief’s care and concern for his officers cannot result in angry, sarcastic, and disrespectful behavior toward those of us who have concerns; they are simply not effective leadership traits, nor are they in the tradition of this community and its police.

On September 16^th, the Department of Criminal Justice at UW-Platteville will be hosting the Second Annual Conference on 21^st Century Policing. I hope this will be an opportunity, as it was last year, for police and community leaders to come together and raise the standard of policing in Madison and across our state and nation.

In the meantime, I will be available to help in any way I can.

Thank you and let us press on together.

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