When Police Accountability Fails

DOJ reports on "Patterns and Practices"

Right off the top, let me stipulate that most police officers want to be good public servants. Their jobs are difficult and require quick decisions based on inadequate information.

I’ll also stipulate that some measurable minority of officers have various issues that cause us to think of them as “bad apples”. These are often the ones we see on the news following a camera video of egregious behavior. The beating of Tyre Nichols by the then-Memphis Scorpion officers is but one of the latest examples (even though there have been yet more since then).

We aren’t paying enough attention to the systemic issues that allow the bad apples to continue. Sociologically, there are consistent patterns present that require exploration if we are to change police-community relations.

Last week the Denver Post reported on a survey done within the city on those relationships. Among other findings, 43% saw the relationship as negative with only 32% as positive (the balance didn’t know). The numbers of participants was just under 700, so the margin of error would be a little higher than normal. I was particularly interested in this because I’d done a survey for the Jackson, Michigan police department back in 2017 that had very similar findings.

This good/bad dichotomy is hard to unpack. We see similar dynamics every time we isolate individual behavior from group attributes: my congressperson is great but congress is horrible; my kid’s teacher is wonderful and teachers are “woke” indoctrinators.

Understanding what is happening — and, more importantly, figuring out what to do about it requires us to move beyond isolated individual cases. We have to look more systemically.

Figuring out how to do that led me to spend time yesterday reading the Department of Justice report on “patterns and practices” of the Louisville, Kentucky Metropolitan Police Department that was released last week.

As I’ve written, law enforcement is a local issue. The federal government is involved through carrots and sticks. First, it can incentivize departments to do good things (like de-escalation training) by providing money or equipment in exchange. Second, it can be on the lookout for systemic violations of constitutional protections of citizens.

The DOJ report makes clear that they aren’t looking into the specifics of Breonna Taylor’s death in March of 2020.¹ Rather, they were focused on the broader systemic questions of the LMPD. It's a long (90 pages) and troubling report. But a couple of paragraphs from the executive summary paint the broad picture:

For years, LMPD has practiced an aggressive style of policing that it deploys selectively, especially against Black people, but also against vulnerable people throughout the city. LMPD cites people for minor offenses, like wide turns and broken taillights, while serious crimes like sexual assault and homicide go unsolved. Some officers demonstrate disrespect for the people they are sworn to protect. Some officers have videotaped themselves throwing drinks at pedestrians from their cars; insulted people with disabilities; and called Black people “monkeys,” “animal,” and “boy.” This conduct erodes community trust, and the unlawful practices of LMPD and Louisville Metro undermine public safety.

Failures of leadership and accountability have allowed unlawful conduct to continue unchecked. Even when city and police leaders announced solutions, they failed to follow through. In LMPD, officer misconduct too often goes unnoticed and unaddressed. At times, LMPD leaders have endorsed and defended unlawful conduct. A street enforcement unit that violated LMPD policy and federal law has been repeatedly rebranded, but never disbanded. First-line supervisors regularly fail to monitor their officers and recognize misconduct when it occurs, and more senior leaders fail to demand better. Supervisors routinely overlook or even defend obviously excessive force, search warrants clearly lacking probable cause, unjustified noknock entries, failures to document traffic stops in Black neighborhoods, and unnecessarily harsh treatment of people with disabilities

Louisville shows patterns and practices that are quite similar to what critics have seen in other cities: disproportionate traffic stops in predominantly minority areas that rarely result in charges (and aren’t always report to dispatch), overly aggressive initial response both verbally and physically, street crimes units (like Memphis’ Scorpion) that confront everyday citizens just living their lives, failure to follow procedure in use of search warrants. And all of those behaviors are either approved by leadership or ignored by them.

Here’s a excerpt from the DOJ’s investigation into the Cleveland Police Department. Again, this is not a direct response to the killing of Tamir Rice but a look at the broader issues underlying policing in Cleveland:

In addition to the pattern or practice of excessive force, we found that CDP officers commit tactical errors that endanger both themselves and others in the Cleveland community and, in some instances, may result in constitutional violations. They too often fire their weapons in a manner and in circumstances that place innocent bystanders in danger; and accidentally fire them, sometimes fortuitously hitting nothing and other times shooting people and seriously injuring them. CDP officers too often use dangerous and poor tactics to try to gain control of suspects, which results in the application of additional force or places others in danger. Critically, officers do not make effective use of de-escalation techniques, too often instead escalating encounters and employing force when it may not be needed and could be avoided. While these tactical errors may not always result in constitutional violations, they place officers, suspects, and other members of the Cleveland community at risk.

Principal among the systemic deficiencies that have resulted in the pattern or practice we found is the Division’s failure to implement effective and rigorous accountability systems. The fact that we find that there are systemic failures in CDP, however, should not be interpreted as inconsistent with holding officers accountable in any particular incident. Individual CDP officers also bear responsibility for their own actions once afforded due process of law. Any effort to force a decision between systemic problems and individual accountability is nothing more than an effort to set up a false choice between two important aspects of the same broader issues that exist at CDP. Force incidents often are not properly reported, documented, investigated, or addressed with corrective measures. Supervisors throughout the chain of command endorse questionable and sometimes unlawful conduct by officers. We reviewed supervisory investigations of officers’ use of force that appear to be designed from the outset to justify the officers’ actions. Deeply troubling to us was that some of the specially-trained investigators who are charged with conducting unbiased reviews of officers’ use of deadly force admitted to us that they conduct their investigations with the goal of casting the accused officer in the most positive light possible.

I’ve begun reading Joanna Schwartz’s Shielded on why it is so difficult for individuals harmed by police behavior to sue for recompense (hint, see SCOTUS decisions on qualified immunity). I’ve heard her interviewed a couple of times about the difficulty of getting cities and police departments to redress greivances². I know this might seem redundant, but here is Schwartz describing a patterns and practices investigation in Chicago³.

But when the U.S. Department of Justice opened an investigation into the Chicago Police Department in 2015 … it found widespread patterns of unconstitutional conduct: officers repeatedly used unjustifiable force against adults and juveniles; the department failed to investigate most of the misconduct allegations it was required to by law; when the department did investigate, the DOJ found, “the questioning of officers is often cursory and aimed at eliciting favorable statements justifying the officer’s actions rather than seeking truth”; and “discipline is haphazard and unpredictable, and is meted out in a way that does little to deter misconduct.” In other words, Chicago police officers were still using excessive force against residents of the city, and internal affairs was still not up to the task of reining in misconduct.

Actually, the redundancy is intentional. Because the same basic issues keep arising again and again. Discriminatory stops, overzealous officers uninterested in de-escalation, lack of correction by leadership, and failure of internal affairs to properly investigate bad behavior.

On his “Why Is This Happening?” podcast yesterday, Chris Hayes interviewed Colby College sociologist Neil Gross about his new book (pre-ordered dropping next week) on police culture. Following his graduation from Berkeley, Gross spent about a year as a police officer in the San Fransisco area. He observed the sharp contrast between the official messages given at the academy with the unofficial messages of “us vs them” mentality, which were reinforced by field training officers and other veterans. Gross wound up leaving for grad school. After pursuing other research interests, he returned to study law enforcement. He does a case analysis of three police departments in Colorado, California, and Georgia.

While the departments differ with regard to city size and broader political culture, they each have a police chief who desires to make change. Gross reports that those who attempt structural reform without making the necessary cultural change are doomed to failure. He spoke of the need for gradual but intentional adjustments to culture and norms. I’m looking forward to the book.

Let me offer some cultural shifts that would help major departments. First, the bureaucratic work of preparing appropriate warrants can be legitimized by helping officers see themselves as key components in the broader criminal justice enterprise (beyond just arrests). Second, as Washington Post opinion writer Jennifer Rubin recently observed, simply stopping officers from using profanity during encounters could go a long way.⁴ Third, specialized crime units can work to build connections with community leaders in higher crime areas rather than relying on “jump-stop” interactions. Fourth, as I’ve written before, the promotion of supervisory officers to higher positions of leadership must be dependent on playing by the rules.

As I said at the top of this piece, police work in hard. It ranges sporadically from the mundane to the dangerous. As much as we want law enforcement to protect us and prevent crime, most of its work comes after the fact.

Still, more attention to the structural and cultural dynamics of law enforcement would be good for line officers as well as the community. Perhaps we can stop talking about “bad apples” and begin to understand how community safety is a collaborative venture.

1. During the Obama administration, the DOJ did two investigations into the killing of Michael Brown in Ferguson, MO. One dealt with the specific actions of the officer and was inconclusive. The other documented long-term inequities in how law enforcement targeted people of color, especially on issues of pretextual stops and ongoing fines (that the city depended on for its budget).

2. Some cities settle quickly for smaller amounts that do not require either admission of guilt or change in behavior. Just yesterday, Denver settled with a number individuals injured by police behavior during the post-George Floyd protests. I learned yesterday that the city maintains a line item in their budget for such payments.

3. This was following the death of Laquan McDonald in 2014.

4. In my Michigan survey, one of the best predictors of negaitve attitudes toward the department was whether the respondent had an unprofessional encounter with an officer.