Do You Have to Give Your ID to the Police?

This week I'm teaching Hiibel v. Sixth Judicial District Court of Nevada (2003), which deals with the following question: If the police ask for your ID and you decline to provide it, can they arrest you?

The story in Hiibel was as follows: The sheriff of Humboldt County, Nevada, received a report that a man had assaulted a woman in a truck. When the deputy found the truck, there was a man smoking near the truck and a woman inside. The deputy informed the man of the suspicion and asked (repeatedly) for his ID, which the man (repeatedly) refused to provide. The conversation escalated and the deputy arrested the man.

States with "stop and identify" laws. Courtesy of Wikipedia.

Nevada, like several other states (see map to the left), has a "stop and identify" law, which allows the police to detain any person and ask for his/her identification. Refusal to provide identification is grounds for arrest.

In Hiibel, a 5:4 majority found that these laws were not unconstitutional; they were not a violation of the Fifth Amendment privilege against self incrimination, as they are limited to disclosing the person's name, and using them as grounds of arrest did not constitute an unreasonable seizure. This is important not only because it allows to arrest the person who is not providing identification, but also because the arrest can open the door to a search of the arrestee's immediate area, including (sometimes) his or her car, and the evidence then is admissible in court.

California, as noted in the map, does not have a "stop and identify" rule. Which is why actress Danielle Watts, of Django Unchained fame, was entirely within her rights when she refused to provide the police her identification.

The story of how the police came to ask her for identification in the first place is horrible. CBS Los Angeles reports:

The couple learned from officers that someone at a nearby office building had called in the report. Watts had just gotten out of an interview at CBS Studios’ Radford lot and was sitting in the Mercedes-Benz on her boyfriend’s lap.

“The citizen who called the police to complain told the 911 operator that a male and a female were involved in indecent exposure inside a Silver Mercedes with the vehicle door open,” the statement alleged.

When officers arrived, police said they located two people who matched the description of the subjects.
“So, I said, ‘Well, making out is not illegal,'” Lucas said. “And the cop was like, ‘Yeah, I know, but they’re being distracted.’ Well, it’s not really our problem that we’re showing public affection, but we stopped.”

“We stopped,” Watts said.

Lucas said he gave the officers his identification when asked, but Watts refused.

“I knew that the clearest thing for me to do was to own my right as a free person and say I haven’t done anything wrong and I know I’m not required to give you my ID,” she said.

Watts walked away and another officer down the street put her in handcuffs and into the back of a patrol car, according to Lucas. Once police identified Watts, Lucas says they let them go.

Watts is black and Lucas is white. They report that the questions they were asked communicated fairly clearly that the officers thought they were a prostitute and a client.

This very disturbing incident raises a few important issues. First, the police is clearly out of line by arresting someone who violates a law that does not exist in California. They would have to have had probable cause that Watts had committed another offense--not the refusal to identify herself--to arrest her. Which begs the question, what part of a report that two people are making out in a car gives rise, necessarily, to prostitution?

It's hard to escape the suspicion that Watts' and Lucas' races played a part in generating the officers' suspicion. As an aside, the interrogation itself should have given them pause. The couple explained that they were together and had done no wrong; Lucas, who presumably would be ashamed to show his ID as a john caught in the act, complied immediately. The officers must have come, from a combination of the report and of what they saw on the scene, to an entirely wrong conclusion, because of implicit bias and impermissible assumptions.

But let's assume, for a minute, that California did have a stop-and-identify law. That would give the officers permission to arrest Watts, but it doesn't necessarily mean that it would be the right thing to do. Stop-and-identify is an example of a law that is facially neutral, but can be enforced in a way that allows the police to abuse their authority regarding some citizens more than others. Watts expresses what it feels like to be on the receiving end of this sort of enforcement:

“As I was sitting in the back of the police car, I remembered the countless times my father came home frustrated or humiliated by the cops when he had done nothing wrong.”

She continued, “I felt his shame, his anger, and my own feelings of frustration for existing in a world where I have allowed myself to believe that ‘authority figures’ could control my BEING… my ability to BE!”

And finally, to whoever made the call to the police in the first place because seeing two other people kissing in public "distracted" them: yes, two human beings expressed affection toward each other in the street. That something about the scenario did not sit well with you to the degree that, rather than rejoicing in the happiness of strangers, you dialed 911, should really make you take a hard look at yourself in the mirror.

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Props to Tom Oster for the link.

John Shaming

There are many ways to address prostitution through the criminal justice apparatus, and one of them involves targeting the clients. Some jurisdictions hold john schools, to varying degrees of success. And some leave notices on cars parked in areas of high-prostitution trafficking, or send them to clients' homes.

Recently, online john-shaming is the way to go. The Chron reports:

Bay Area johns have a new worry: finding their mug shots and charges posted online for all to see.

It's a cyber scarlet letter with a punch, as 11 men found out in Richmond after they encountered undercover officers who posed as prostitutes Thursday afternoon while wearing hidden microphones along busy 23rd Street.

The officers snapped the men's mug shots while booking them in the field, then posted the photos Friday to the police force's Facebook page.

. . . 

"It's a way of using the embarrassment card," said police Lt. Kevin Wiley, who helped create Oakland's website. "It can attack an individual's reputation. They are engaging in crimes that are beneath the surface, off the radar, a dirty little secret, (and) we expose that secret.

"It's not an innocent act," Wiley said. "No more of that good-old-boy mind-set."

The Oakland website, inspired by a similar program in Fresno, states that individuals are presumed innocent until proven guilty. The plan is to update it with new photos of alleged johns and pimps about every two weeks.

What do you think about john-shaming as a prostitution-combating technique?

Highway Robbery? Civil Forfeiture and Capitalism Gone Bad

Yesterday's Washington Post story draws some attention to seldom-discussed police activities: civil forfeitures on the road. They start by explaining how it works:

Cash seizures can be made under state or federal civil law. One of the primary ways police departments are able to seize money and share in the proceeds at the federal level is through a long-standing Justice Department civil asset forfeiture program known as Equitable Sharing. Asset forfeiture is an extraordinarily powerful law enforcement tool that allows the government to take cash and property without pressing criminal charges and then requires the owners to prove their possessions were legally acquired.

The practice has been controversial since its inception at the height of the drug war more than three decades ago, and its abuses have been the subject of journalistic exposés and congressional hearings. But unexplored until now is the role of the federal government and the private police trainers in encouraging officers to target cash on the nation’s highways since 9/11.

The Post also did an analysis of hundreds of thousands of seizure records and found the following:

• There have been 61,998 cash seizures made on highways and elsewhere since 9/11 without search warrants or indictments through the Equitable Sharing Program, totaling more than $2.5 billion. State and local authorities kept more than $1.7 billion of that while Justice, Homeland Security and other federal agencies received $800 million. Half of the seizures were below $8,800.
• Only a sixth of the seizures were legally challenged, in part because of the costs of legal action against the government. But in 41 percent of cases — 4,455 — where there was a challenge, the government agreed to return money. The appeals process took more than a year in 40 percent of those cases and often required owners of the cash to sign agreements not to sue police over the seizures.
• Hundreds of state and local departments and drug task forces appear to rely on seized cash, despite a federal ban on the money to pay salaries or otherwise support budgets. The Post found that 298 departments and 210 task forces have seized the equivalent of 20 percent or more of their annual budgets since 2008.
• Agencies with police known to be participating in the Black Asphalt intelligence network have seen a 32 percent jump in seizures beginning in 2005, three times the rate of other police departments. Desert Snow-trained officers reported more than $427 million in cash seizures during highway stops in just one five-year period, according to company officials. More than 25,000 police have belonged to Black Asphalt, company officials said.
• State law enforcement officials in Iowa and Kansas prohibited the use of the Black Asphalt network because of concerns that it might not be a legal law enforcement tool. A federal prosecutor in Nebraska warned that Black Asphalt reports could violate laws governing civil liberties, the handling of sensitive law enforcement information and the disclosure of pretrial information to defendants. But officials at Justice and Homeland Security continued to use it.

I have a few thoughts about it, and I confess the first one was how little I--and pretty much every other criminal procedure scholar I know--know about this. The prevalence of civil forfeitures is stunning. But what's even more stunning is the way the forfeitures feed into the police departments' bank accounts, and even those of the sheriffs (more on this in the documentary The House I Live In.) Occasionally, we hear of police officers or forensic technicians stealing illegal drugs from the lab--the massive forensic lab scandal in San Francisco is only one example--but, of course, money is not contraband and much easier to use. As are cars, of course. 

A few days ago I finished a paper about private prisons, arguing that CCA and GEO, themselves, are not to blame for mass incarceration and its evils. In a neoliberal economy, public actors, just like private ones, operate based on for-profit motives. Maybe we shouldn't be surprised to see police departments behaving like highway robbers gunning for profit; the set of pressures and incentives created by the neoliberal economy communicates that policing, seizing, and incarcerating for profit (or for savings) is just fine. 

There's also, of course, the issue of due process. There's all this talk about the importance of the presumption of innocence in the criminal context, and yet, in a strongly related context, it is the individual's burden to prove that his/her money was not procured via, or is not related to, criminal activity. This is a liminal place that shows how difficult it is to draw the line across the criminal/civil divide--especially since the consequences of forfeiture are not necessarily less grave than those of a criminal conviction.

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Props to Liliana Garcia for the link.

When Can the Police Shoot to Kill?

The Justice Department will, thankfully, probe into the activities of the Ferguson police force. While there are plenty of reasons to do so, I wonder whether the probe will question the original use of lethal force that led to Michael Brown's tragic death at the hands of police officer Darren Wilson (the recipient of supportive donations), because there are some difficult questions to ask.

This Washington Post story critically examines the authority of police officers to use lethal force.

The first of the Supreme Court rulings that still govern law enforcement policies nationwide on the use of deadly force is Tennessee v. Garner. In the 1985 case, the court concluded that police officers could not shoot at a fleeing suspect simply to prevent their escape. They could shoot, however, if they had probable cause to believe the person was a violent felon and posed a significant threat of death or serious harm to the community.

The more overarching decision is the 1989 Graham v. Connor ruling, written by Chief Justice William Rehnquist and at a time when violence against police was rising amid a crack epidemic. In that case, Charlotte diabetic Dethorne Graham had rushed into a convenience store to get orange juice to stop an oncoming insulin attack but left the juice inside and left suddenly because of the long line. He asked a friend who had driven him to the store to instead drive him to another friend’s house for food.

Charlotte city police officer M.S. Connor, suspicious at Graham’s hasty exit, followed him and his friend, stopped them for questioning and didn’t believe Graham’s story about being diabetic. As Connor was checking by radio with the store, Graham got out of his car and passed out briefly. Backup officers arrived, told Graham to shut up and rammed his head into a patrol car while throwing him in the back of it.

Graham sustained minor injuries and argued that the officer’s use of force was excessive. But the Supreme Court found that the officer’s actions were justified because he reasonably believed the force he was using was necessary to prevent or detect a crime in progress.

More on this in coming weeks.

Leland Yee, Shrimp Boy, and Entrapment

Many San Franciscans have been following, with some measure of titillation, the brewing prosecution against Senator Leland Yee, his political consultant Keith Jackson, and dozens of other defendants, including the elusive Shrimp Boy. I've been providing occasional TV coverage, so I know a bit about the case, which is why I wasn't surprised to see this in the San Jose Mercury News:

Jackson's lawyers argue that the agent's misconduct must be fully disclosed because it may be central to efforts to discredit the government's sprawling investigation.

The agent's financial misconduct is unclear, but court papers say he was key to ensnaring Jackson and later Yee in an investigation that began as a probe into reputed Asian organized crime figure Raymond "Shrimp Boy" Chow.

The agent, court papers say, paid Jackson $37,000 in consulting fees over 16 months as part of the undercover operation, arranged $20,000 in donations to an identified political figure, explored setting up a $200,000 fundraiser for a "senior federal elected official" and set up a meeting with a "prominent former professional athlete" to discuss a hotel project. Lawyers in the case say the probe crossed paths with former San Francisco 49ers quarterback Joe Montana, who has backed a proposed hotel and retail project near Levi's Stadium but has never been linked to any wrongdoing.

Among other legal arguments, Jackson's lawyers say the government failed to disclose that one of its lead agents was being investigated by his bosses when they sought approval from federal judges for wiretaps against Yee, Jackson and other targets. James Brosnahan, Jackson's attorney, has asked U.S. District Judge Charles Breyer to order the government to turn over internal documents detailing why the agent was reprimanded by the FBI.

When I heard the defendants pled not guilty, I immediately thought that they would try and argue entrapment. The case is wholly based on a wire recording of conversations between the agent, who purported to be a businessman, Yee, and Jackson, whom he contacted to ask for favors in exchange for campaign donations (Yee was running for Secretary of State). The recordings are fairly elaborate and damning, but they are, of course, selective; to consider entrapment seriously, other conversations would have had to take place, during which the agent put pressure on Yee and Jackson to do business with him.

A bit of lay information about entrapment: it is a criminal defense, and the defendant needs to prove that, but for the intervention of government agents, s/he would not have been predisposed to commit the crime. Different courts emphasize different aspects of the defense - the predisposition of the defendant versus the egregiousness of police behavior. It gets brought up in the context of drugs, mostly, but there have been cases in which government agents, anxious to uncover a child porn ring, pushed people to buy materials in which they would have had no interest but for the repeated pressure.

A couple of weeks ago, the court approved extensive discovery about the agent to the defense, but there was a ruling prohibiting the defense to share the information with the media. This is a problem for the defense, because one of the best ways to prove entrapment is to probe into the history of the agent/informant and figure out whether he has a history of entrapment or "strong persuasion" to commit crime. I have only to assume that the information leaked out in a different way. Let's keep following this trial, because it's a great window into the workings of an anticorruption undercover investigation.

Copwatch

This week seems to be the gift that keeps on giving. This evening brings with it a story from Seattle, Washington. An African-American bystander strolls by a pro-Palestinian demonstration. A white man is heckling the protesters and screaming racial slurs at them. At some point, he directs his aggressiveness at the bystander. A cop comes along, and pepper-sprays... that's right, you guessed it.

And then, we have a story from Tampa, Florida, where the police... why do I bother? A YouTube video is worth a thousand words.

More on Ferguson

Plenty has been written in the last few days already; I wanted to highlight a few interesting pieces you may not have seen.

The Economics of Police Militarism

One moment, we see a young man with a welt from a rubber bullet between his eyes; the next, three officers with big guns are charging at another black man who has his hands up. On Thursday, Jelani Cobb filed a powerful account from the sidewalks and homes of Ferguson. Cobb asks about “the intertwined economic and law-enforcement issues underlying the protests,” including, for instance, the court fees that many people in Ferguson face, which often begin with minor infractions and eventually become “their own, escalating, violations.” “We have people who have warrants because of traffic tickets and are effectively imprisoned in their homes,” Malik Ahmed, the C.E.O. of an organization called Better Family Life, told Cobb. “They can’t go outside because they’ll be arrested. In some cases, people actually have jobs but decide that the threat of arrest makes it not worth trying to commute outside their neighborhood.”

The Fury in Ferguson and Our Forgotten Lessons from History

Despite the crystal-clear conclusions drawn by the Kerner Commission about why the '60s had seen so much urban unrest, and what would happen if we ignored the lessons of the these rebellions, we are right back where we were 50 years ago. As this Commission noted without equivocation: The urban rebellions of the 1960s stemmed from specific triggers such as police brutality and, more generally, because "discrimination and segregation have long permeated much of American life; they now threaten the future of every American." Indeed, this group of experts warned, if this nation doesn't "press for a national resolution" to discrimination, it will become "two Societies, One Black, One White -- Separate and Unequal."

These chickens have indeed come home to roost. If we don't fully understand the fury in Ferguson, rather than dismiss it as senseless urban violence, and if we don't move swiftly and concretely to ensure justice for the family of Michael Brown -- making clear whose violence started this -- then we are in for many more long, hot summers. Guaranteed.

Autopsy Shows Michael Brown was Struck At Least 6 Times



White St. Louis Has some Awful Things to Say About Ferguson

"Our opinion," said the talkative one in a group of six women in their sixties sitting outside the Starbucks, "is the media should just stay out of it because they're riling themselves up even more."

"The protesters like seeing themselves on TV," her friend added.

"It's just a small group of people making trouble," said another.

"The kid wasn't really innocent," chimed in a woman at the other end of the table (they all declined to give their names). "He was struggling with the cop, and he's got a rap sheet already, so he's not that innocent." (While the first point is in dispute, the second isn't: The police have said that Michael Brown had no criminal record.)

If anything, the people here were disdainful and, mostly, scared—of the protesters, and, implicitly, of black people.

Afraid

We’re afraid that maybe if we write something about the police that law enforcement might single us out at the local level, or persecute us based on our prior coverage. We’re afraid—us journalists, 90 percent white at the supervisory level—might be tailed simply for driving down the street, or, if there’s an emergency at our homes, dispatchers will make no effort to help us beyond a late, procedural check-in.

We’re afraid that we will be treated like black people by police.

Policing and Race: Depends on Who You Ask

Bay Area residents of a few years--or anyone following the news, really--probably remember Johannes Mehserle's trial for the killing of Oscar Grant; you may remember, in particular, the fact that the trial was moved from Alameda County, which was the site of the killing. The change of venue occurred because of the animus in the surrounding community--“in particular, the rare nature and gravity of a murder charge arising out of an on duty uniformed police officer killing an unarmed man during an arrest, the high degree of political turmoil associated with this case, and the resulting avalanche of intense, continuing and current media attention.”

When Judge Jacobson wrote that Grant's killing was "viewed by many as being a case about race relations between the police and minority communities", who did he mean by "many"? The change of venue motion included a poll of Alameda County population, which revealed a racial divide regarding opinions of the case.

I'm bringing this up because today's post on the Pew Center on the States blog includes survey findings on the recent killing of Michael Brown. While the news on Ferguson were just one item among several in a busy news week (the Ebola virus, the death of Robin Williams, the strikes in Iraq and the strikes in the Ukraine), black respondents followed Ferguson news more closely than white respondents.

More importantly, there were big differences in opinion on both the killing of Michael Brown and the police response, and they are exactly what you would expect--supporting research conducted by Dan Kahan and others that shows that one's political/legal opinion depends a great deal on one's culture and experiences.

Update: The National Guard is on its way--just like in the '60.

Book Review: El Narco by Ioan Grillo

There's incessant chatter in the United States about the War on Drugs, its strategies, its failures, its future, and plenty of great resources on recommended policies. But this chatter is incredibly parochial--not only in the sense that it refuses to learn from the experience of other countries, but also in its willful blindness to the important partners and contributors to the U.S. drug market: our southern neighbors in Mexico. Ioan Grillo's excellent book El Narco is a first effort to remedy this colossal oversight, and it contains invaluable information that North Americans would do well to absorb.

Grillo, originally British and a long-time resident of Mexico City, has been covering the drug trade as a journalist for years, a task rife with peril that requires know-how, sophistication, tact, and wisdom. But despite his journalistic heroism, Grillo does not feature himself at all in the book, as a hero or otherwise. Instead, he gives us a full and rich picture of the drug trade in Mexico and the deadly culture it has produced.

The first part of the book relates the history of the drug trade, from smalltime rural growers to cartels and powerful mafiosi. Grillo walks the reader hand in hand through Mexican politics, highlighting the role of U.S. drug enforcement officers in the escalation and diversification of the drug trade. The murder of a DEA agent is a pivotal point in the narrative. Also present is the Colombian trade, which after its heyday receded, with the fall of Pablo Escobar, due to lack of forward thinking, leaving the void to Mexican traffickers.

The second part exposes some of the culture involved in trafficking: special professions, the gruesome and frequent violence and homicide (including shocking interviews with young men who work as assassins for the cartel), the music scene known as narcocultura (of which there is a recent documentary), and the place of religion and faith in drug culture.

In the third part, Grillo attempts to chart a way out of the abyss that is the Mexican drug market. Notably, he believes that U.S. drug policy is key to addressing the puzzle. While there are some important things that Mexico needs to do on the political and economic level, the continued illegality and risk involved in drugs in the U.S. is what makes this market so lucrative, and, in combination with complex internal factors, so lethal.

Ferguson: Is the Damage Done?

The photo to the left made the rounds via Twitter yesterday, circulated by @jRehling. The inscription read, "The new head of the Ferguson response is marching WITH the protesters and suddenly military weapons aren't needed."

Oh, if it only were that easy to resolve police-community problems. As later events proved, no "sudden" respite was forthcoming, and there was plenty of further unrest and violence going on. People are still upset. The killer of Michael Brown has not been arrested yet. And people are very cognizant of the spark that started the fire of unrest in the first place.

Bay Area readers will probably recall the protests in Oakland after Johannes Mehserle's trial for killing Oscar Grant ended in a conviction for involuntary manslaughter. Four years ago, blogging about those protests over at CCC, I wrote:

While older literature from the 1960s analyzed riots and community action in itself, newer studies of riots by criminologists and sociologists portray a very complex picture of how such events develop. It is important to see, as Michael Keith argues, race riots within the larger context of race relations, and to acknowledge the fact that a great part of the problem is not the riot itself but the moral panic generated by the riots. I would not go as far as to say that the riots would not happen if not for the projected police response. But seeing thousands of officers, helicopters, and various devices in Oakland yesterday did seem to communicate an expectation that something very foul was about to occur. This sort of overpreparedness communicates to citizens the expectation of violence and crime. In this interesting paper by Clifford Stott and Stephen Reicher, they interview police officers, showing how tense situations can escalate through the communication between police and protesters at the event.

I think that is true here as well, but there is always plenty of temptation in these situations to escalate, fearing that community reaction will not mirror police calm unless there's readiness. I've seen (and, during grad school, participated in) research conducted on sports events that suggests that audience violence in games increases with the presence of police. Expectations are not everything, and unrest is not in the eye of the beholder, but they do shape reality. And once there is unrest and anger in the air, expectations become, as we've tragically seen in Ferguson, incredibly important.

As an aside note relating to the militarization: I've started thinking that our traditional distinctions between international warfare and domestic conflicts is becoming, if not obsolete, at least much more blurry. What with armies increasingly engaged in traditional policing acts, and police units engaged in warfare, it's becoming harder to tell whether the oppressed public/feared enemy is the "other" or part of the collective "us." I expect international law scholars to be writing about this, if they aren't already.

Book Review: Rise of the Warrior Cop

Of all the frightening and heartwrenching reports about the situation in Ferguson, I found this one particularly poignant. It's a series of Twitter quips from army veterans comparing the equipments and tactics used by the police in Ferguson to their experiences in Iraq, Afghanistan, and elsewhere. Here's just one example:

These army veterans are stunned to see military vehicles, weapons, and tactics used in a domestic situation against civilian population. But these horrific incidents are simply exposing something that has been going on for several decades: the increasing militarization of the police force. This was a good enough reason to finally get to read Radley Balko's new book Rise of the Warrior Cop (2013), which provides history and context to this phenomenon.

Balko starts his narrative with ancient Rome, where freedoms (and an early type of policing) was put in place specifically to prevent the army from overtaking the government. He then places much of what we know as Fourth Amendment protections against search and seizure in historical context, explaining why in Medieval and Early Modern Britain (and, as a result, in its colonies) many of these protections--namely, provisions against quartering and the castle doctrine--were important to prevent bloodshed. Until the mid-19th century, troops were seldom used in the context of internal domestic conflicts, but the conflict over slavery changed this restraint and led to full-blown war. After the war, troops in Southern states, stationed there to prevent retaliation (and technically an occupying force of sorts) presented yet another challenge to the Third Amendment. Despite the emergence of police forces (as a new phenomenon), occasionally troops were sent to quell civil riots, such as in the context of school desegregation. While, in the 1960s, the National Guard played a role in such situations, there was common public distaste for the use of military forces in a domestic contest. However, as this happened, the police transformed itself through military education, tactics, and technologies, into a quasi-military force. Some of the 4th Amendment litigation in the1960s--mainly in the area of warrantless searches, knock-and-announce, and the like, revolved around the use of quasi-military techniques in policing.

The 1960s were periods of rising violent crime rates and notable violent incidents (such as the Whitman shootings and labor protests) that raised the question whether the police was appropriately equipped to deal with them. These incidents led to the the rise of police innovator Daryl Gates, who created the first paramilitary police units: SWAT teams against the resistance of more traditional policing experts. The initial units trained in secret. They would later receive more legitimation with further developments: the backlash against Johnson's taskforce on crime (The Challenge of Crime in a Free Society), race riots following MLK Jr.'s murder, and, of course, Richard Nixon's presidential victory, which was based on a platform of crimefighting and police empowering.

The Nixon administration targeted primarily drug crime and started using SWAT teams and break-in techniques that did not include knocking and announcing. These paramilitary technologies were used to combat, among others, the Black Panthers, who not only were on the receiving end, but also organized themselves in a quasi-military fashion. The Omnibus Crime Control and Safe Streets Act reformed not only street tactics, but also surveillance methods, making wiretapping easier and more popular. The Nixon administration invested in treatment and reform, too, and saw some decline in crime attributable to those, but deliberately repressed reports on that angle, because that would undermine the efforts to allow for more repressive crime control.

The 1970s saw more professionalization in paramilitary policing. The commander would storm in front of the men, as in military units, and the units would hide out of sight, which was deemed to be more effective in conflict dispersal than presence on the scene. Anti-drug policing techniques found their way to state legislatures following an all-out PR campaign on crime and drugs.

The introduction of the Reagan-era War on Drugs in the 1980s intensified the use of these military techniques. In particular, that decade saw the introduction of armored carriers, as well as the emergence of national databases and interjurisdictional collaboration. But not only did these technologies not eradicate drug trafficking, they led to an increasing culture of alienation of the police force from its community. People were less and less inclined to collaborate with the police, report, and testify about crime. At the same time, police officers became more and more reified in law, so that lawsuits against them were increasingly difficult and any violence against them unjustifiable and worse than against non-police victims. This alienation made the police force in the community even more akin to a foreign occupying force operating among the enemy.

Balko's book is exceedingly well-written, full of fascinating examples, and pays a lot of attention to detail while not losing the bigger narrative. It bounces back and forth between anecdotes, general trends, police innovations, and legislation. There are a few complementary themes that are missing from his narrative: for example, he leaves his narrative of the National Guard aside, not asking the question whether it's the police that's become more army-like or the military that is increasingly busy in policing missions. His narrative also stays domestic, for the most part, while his argument could be fortified by presenting DEA activities in Mexico as one more example of militarization--crossing borders to fight wars that look like the traditional violent international wars of yesteryear (more on that in our forthcoming review of Ioan Grillo's El Narco). Balko also does not focus on countertrends, such as community policing, that have tried to humanize the police and make it an ally of the community. Nonetheless, the book is an excellent primer to those who want to understand more about why the images from Ferguson are so reminiscent of images from Afghanistan and Iraq. This did not start yesterday, nor is it likely to end without thoroughly rethinking the role of policing and the futility of an all-out war on drugs.

Would Cameras on Cops Prevent Police Abuse of Force?

In the aftermath of Michael Brown's killing, I'm seeing several editorials and articles arguing that the solution to the tragedy in Ferguson (and elsewhere in the nation) would be to arm police officers with cameras on their badges, that would document their actions. The Washington Post argues:

A study submitted this month by the District’s Police Complaints Board cited the example of the Rialto, Calif., police department, which measured the use of force by officers wearing cameras against a control group of officers who didn’t wear them. The camera-wearing officers were involved in dramatically fewer incidents involving the use of their batons, pepper spray, stun guns or firearms. Behavioral changes were so striking — both in the officers and in citizens they encountered — that complaints against the cops wearing cameras declined by nearly 90 percent.

The study, in full, is here, and the recommendations address a variety of concerns: the quality and durability of the equipment, police officers' control over the initiation of recording, privacy concerns and the need to notify citizens of recording, retention of recorded material, and data access and sharing. There's also the question of cost, compared to the reduction in cost from citizen complaints.

San Francisco implemented a program that would dole out 150 $1,000 cameras to plainclothes officers to document search procedures and minimize concerns about lying and hiding evidence. But in April 2014, these were apparently not in use yet. The argument used against them is that the Rialto experiment took place in a city with a very small police force.

There are probably many benefits to documenting police activity via copcams, but I have a fairly serious misgiving. The first is that video footage is often considered, wrongly, to be objective evidence that cannot be misinterpreted. People tend to reify such evidence as presumably incontrovertible. That is not the case. In 2007, the Supreme Court decided a 1983 suit called Scott v. Harris. Harris sued the police department for giving a dangerous car chase that resulted in an accident, from which he emerged paraplegic. This video, shot from the pursuing car, was admitted in evidence:



Justice Scalia, writing for the majority and denying Harris any compensation, saw the video and concluded that "[r]espondent’s version of events is so utterly discredited by the record that no reasonable jury could have believed him."

But is that really so? Dan Kahan, Dave Hoffman and Dave Braman took Scalia's challenge and showed the video to a diverse sample of 1,350 Americans. They found considerable differences in how their subjects perceived the car chase, its dangerousness, and the justification for police action. Moreover, the subjects' perception of the chase was highly correlated with their general worldviews and personal characteristics. Folks on the conservative side of the political map tended to agree with police actions and argue that Harris was driving in a dangerous way; folks on the progressive side tended to side with Harris and regard police's manner of carrying the chase as unnecessary, excessive, and dangerous.

We don't even have to go that far. Oscar Grant's killing on New Year's Eve, 2009, was documented by cellular phones. The presumably incontrovertible evidence of intentional homicide ended in an involuntary manslaughter conviction for Johannes Mehserle. And lapel cameras did not prevent the Albuquerque shooting of Shaine Sherrill.

This is not to say that copcams are a universally bad idea. But it does mean that the documentation of police action would not put an end to assaults and would not unequivocably settle 1983 lawsuits against the police. As with forensic innovations, anyone hoping for a definitive "cure" for police abuses is going to be disappointed.

The Worst Policing Crisis You Haven't Heard Of

It is not easy to find out what is happening in Ferguson at the moment, because journalists are being effectively blocked by the police. But this morning's Washington Post yielded Wesley Lowery's story of his arrest. Lowery was sitting at a local McDonald's, answering questions and tweeting from the convenience of an indoor location with wifi, when police officers came, demanded to see his ID, and arrested him. Here's some of what happened next:

An officer with a large weapon came up to me and said, “Stop recording.”
I said, “Officer, do I not have the right to record you?”
He backed off but told me to hurry up. So I gathered my notebook and pens with one hand while recording him with the other hand.
As I exited, I saw Ryan to my left, having a similar argument with two officers. I recorded him, too, and that angered the officer. As I made my way toward the door, the officers gave me conflicting information.
One instructed me to exit to my left. As I turned left, another officer emerged, blocking my path.
“Go another way,” he said.
As I turned, my backpack, which was slung over one shoulder, began to slip. I said, “Officers, let me just gather my bag.” As I did, one of them said, “Okay, let’s take him.”
Multiple officers grabbed me. I tried to turn my back to them to assist them in arresting me. I dropped the things from my hands.
“My hands are behind my back,” I said. “I’m not resisting. I’m not resisting.” At which point one officer said: “You’re resisting. Stop resisting.”
That was when I was most afraid — more afraid than of the tear gas and rubber bullets.
As they took me into custody, the officers slammed me into a soda machine, at one point setting off the Coke dispenser. They put plastic cuffs on me, then they led me out the door.
I could see Ryan still talking to an officer. I said: “Ryan, tweet that they’re arresting me, tweet that they’re arresting me.”
He didn’t have an opportunity, because he was arrested as well.
The officers led us outside to a police van. Inside, there was a large man sitting on the floor between the two benches. He began screaming: “I can’t breathe! Call a paramedic! Call a paramedic!”
Ryan and I asked the officers if they intended to help the man. They said he was fine. The screaming went on for the 10 to 15 minutes we stood outside the van.
“I’m going to die!” he screamed. “I’m going to die! I can’t breathe! I’m going to die!”
Eventually a police car arrived. A woman — with a collar identifying her as a member of the clergy — sat in the back. Ryan and I crammed in next to her, and we took the three-minute ride to the Ferguson Police Department. The woman sang hymns throughout the ride.
During this time, we asked the officers for badge numbers. We asked to speak to a supervising officer. We asked why we were being detained. We were told: trespassing in a McDonald’s.
“I hope you’re happy with yourself,” one officer told me. And I responded: “This story’s going to get out there. It’s going to be on the front page of The Washington Post tomorrow.”
And he said, “Yeah, well, you’re going to be in my jail cell tonight.”

Ken Muir's 1979 book Police: Streetcorner Politicians tried to make sense of the discretion and perceptions involved in on-site policing. One memorable feature of the book is Muir's classification of police officers on a two-variable grid: how comfortable they feel with the use of force ("morality of coercion") and their general outlook on human nature (tragic/cynical perspective). Muir seems to suggest that the professional is the best of the four, but finds examples, in his interviews, of all four types.

If we can apply this grid not only to individual police officers, but also to police forces and/or situations of policing, it seems to me that the circumstances in Ferguson are revealing--or shaping--a cadre of enforcers. Through the eyes of a cynical cop with an integrated "morality of coercion", a journalist sitting in a fast-food joint is a suspect; a sick or injured man is malingering; a person adjusting his backpack is resisting arrest. This oppositional perspective is mirrored by the community (there's a history there, rich with terrible race relations--not unlike in Oakland); I heard a local artist and activist describing the scene on KPFA, explicitly saying "they're trying to kill us."

This blog addresses policing and the community, focusing primarily on the San Francisco Bay Area. I hope to cover community strategies, policing innovations, race and class problems, private policing, militarization, and other issues pertaining to law enforcement and social control at the front end of the criminal process.