It’s Non-Negotiable! Really?

It’s non-negotiable!”

“I’m sorry, Chief, you’re wrong. Everything you and your department does is negotiable!”

I don’t know how many times I have heard police executives use this phrase when responding to citizen inquiries about police practices. For the most part, it is a version of: “We’re the police and you’re not!”
Both statements are unacceptable in a democracy. When it comes to the actions of our public institutions, everything is negotiable. The saying, “We’re the police and you’re not,” directly challenges Sir Robert Peel’s 7th Principle of Policing: “The police are the public and the public are the police.”
Even before Ferguson, too many police leaders have responded to public concerns (primarily in their use force) by trying to end the conversations by stating, “We followed the law, our policy, and our training — our actions appropriate and legal.” In most cities that response ends what could have been a very productive and trust-building effort.
People who have been injured by police, the grieving family of the deceased person, find no one in governmental interested in continuing a dialogue centering on whether what the police have done is acceptable or appropriate — not withstanding police policy, training, or even the law! The question should be whether or not this is how citizens wish their police to conduct themselves.
The most obvious example today is the low standard and therefore protective mantle that the USSC decision in Graham v. Connor provides police officers who use deadly force. This rule is essentially “if police officers fear, they can use deadly force.” This is a decision that has been identified by even police leaders as “awful, but lawful.”
While certain behaviors in our society may be lawful, that does not mean it has to be accepted and the police could, as many our their leaders have already stated, require a higher standard within their ranks. (Note: This would be similar to what was done in the 1970s when many states permitted police to use deadly force to stop any fleeing felon and many of us implemented policies within our organizations that restricted its use to only “fleeing dangerous felons.” Years later, the USSC would decided in Tennessee v. Garner that what we had decided became the new standard.)
Police chiefs who members of the Police Executive Research Forum (PERF) have themselves issued a report on use of force which calls for just that — the raising of the Graham standard.
As to police chiefs barring the door with regard to community dialogue about their policies and practices, I have to emphatically say “bullish__t!” In a free and democratic society such as ours, it is the duty of the police to ask for real discussion and input and public’s duty and right to tell the police how they want them to behave.
Here are a few of the issues that the public should actively discuss with their police:
1. In many jurisdictions throughout the country a person may be sworn in as a police officer PRIOR to being formally trained; the only requirement being that within a certain period of time the officer be trained. Practice before training? You and I would not go to a barber to have our hair cut if we knew the barber (or beautician) was cutting hair before they were trained and certified? (In most states, barbers and beauticians are required to have up to 1500 hours of instruction before practice, far above the number of hours of most police recruits are trained.)
2. Now let’s get real real serious. The standard for police using deadly force is very low as I have mentioned above. It must be raised and PERF police leaders tell us how to do this.
3. Do you want your police to use deadly force when they confront a mentally ill person who refuses to put down a knife they are holding? My sense is that you would want your police to exercise both care and caution when approaching these situations AND have a variety of non-deadly responses in their tool kits.
4. When police do use deadly force they currently are trained to shoot until the “threat” is neutralized. In many instances this means discharging up to 16 bullets into the suspect’s “center-mass” (heart and lungs) most certainly resulting in the person’s death. It’s time to get serious about disabling a threat without taking a life.
5. Police are usually trained in the academy to use “de-centralization” techniques when encountering resistance from a suspect. Will this apply to small persons as well as those who are larger? What about age or gender? Should they be factored into the decision to take a small teenage girl to the ground and handcuff her?
6. What about your SWAT team? Just about every city and county has one. When should they be employed? Is it wise to call up your department’s SWAT team simply to serve a warrant? Citizens should require their police leader to report on how their SWAT team is trained and led, when the team was mobilized and under what conditions.
7. Many of you who follow and work to improve police have noted through the years two things about police training: it is too short and too militarized; that it is run like a military boot camp. To what extent, atmosphere, and in what conditions are police in your city trained?
8. There has been significant work done by Prof. Tom Tyler and others about the importance of police practicing “procedural justice” in all their encounters. Are your officers adequately trained in these techniques? Do their leaders require such behavior from them? And, just as important, do police leaders practice “procedural justice” in the manner in which they treat their own police officers? (And did you know that the practice of procedural justice by police and others in our criminal justice system results in a more law-abiding citizenry because police become to be seen as legitimate and persons worthy of respect?)
9. How would you go about evaluating your police? How are they doing? And what are the criteria for such an evaluation? After all, if you are white, older, and “of means” you probably will never encounter questionable behavior from a police officer. But we live in a democracy which grants majority rule with minority rights. And, yes, we are our brother’s and sister’s keeper. We have responsibilities as citizens to assure our police operate properly with everyone in our city including those destitute, homeless, mentally ill, unable to care for themselves, undocumented immigrants, racial minorities, or those who practice lifestyles which are not illegal, but which others think are socially unacceptable.
10. How about helping cops help other cops? Retired Minneapolis police sergeant Michael Quinn has been working for a number of years now on something called “peer intervention” for police. It comes out of the “active bystander” movement and directly challenges the “Blue Code of Silence” in policing — the unique, and sometimes illegal, aspects of police subculture. Peer Intervention trains police to care for each other. Quinn is proposing a New Code which includes an oath between police officers that they will not stand by while they see another officer do something that will cause them to be suspended, demoted, fired, embarrass their family, or go to prison. In such matters they pledge to intervene if this should happen on their watch and give permission to fellow officers to intervene ig they about about to do something wrong or stupid.
11. What about the health and wellness of your police? Who cares for them, their ups and downs, deaths in their families, relationship woes and problems with their teenagers? One thing we don’t like to talk about is suicide among police. But a police officer is more likely to commit suicide today than be killed in the line of duty. We need to be sure our police have proper wellness programs in place and their health and mental fitness assessed on a yearly basis. It just makes good sense for both police and those whom they police.
12. The First Amendment and police response to public protest. If there has been one thing learned over the years it is that the best response to a protest or demonstration is a soft response and NOT by police suiting up in body armor, helmets, batons, and shields. If possible, police should try and contact and work with protest organizers with the goal to facilitate the protest; not repress it. We always had a hard response ready if they were needed, but they were always to be out of sight. Police must state they role at these protests. The Madison Model is a good start.
These are just a few of the issues that need to be discussed openly and honestly  between police and those whom they serve. In most every other regulatory agency in our society it is the responsibility of the agency to promulgate rules (policies and practices) subject to the approval of their elected representatives. Not so with police. Every attempt to do so is often deflected, ignored, or met with an attitude similar to “we’re the police and you’re not.” “In fact, you could not possibly understand or evaluate that which we do.” That needs to change.
As John Van Maanen said so many years ago, the problem with police is not their professionalism, but rather their accountability. For it is not enough for police in our society to be open, they must also be accountable for their actions — and the persons to which police must be accountable is you!
By this day and age, we should all know what needs to be done. The question is whether we will have the will, passion, and perseverance to make our nation’s police better? If not, the old adage will prevail, “the people get the police they deserve.”

[Ed. Note: My thanks to Prof. Barry Friedman and his new book, Unwarranted: Policing Without Permission, Farrar, Straus and Giroux, 2017. Prof. Friedman firmed up much of the thinking that I and many other police reformers had been talking about since the 1970s regarding transparency and accountability in the policy making process. As early as 1974, Madison Police had delivered their policy manuals to the city library and all its branches. “We police with the consent of those whom we police.” That must, again, be the core of American policing.]

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