A few years ago in the city of Los Angeles, attorneys Donald W. Cook and Robert Mann brought a series of lawsuits on behalf of people bitten by police dogs. The lawyers argued that the victims, mostly suspects fleeing or hiding from police, were bitten while unarmed and already surrounded, sometimes even handcuffed; the dog attacks constituted a gratuitous use of force. These were not easy cases to win. Juries tend to sympathize with police and their dogs more than with criminals fleeing arrest for burglary or auto theft. But Cook and Mann persisted, offering chilling videotape of an actual dog attack and pointing out the disproportionate number of serious injuries that resulted from arrests accomplished with the help of dogs.
The city eventually paid $3.5 million to settle these lawsuits. More important, Los Angeles Police Chief Willie Williams ordered a change in police policy. Instead of following a "find and bite" procedure, dogs and their handlers were retrained for "find and bark." The results were immediate and impressive: dog bites declined from 360 per year, including more than 100 requiring hospital treatment, to 30 per year with no hospitalizations.
"The lawsuit brought it to my attention," says Williams, now out of office. "When I found out that we didn't have find and bark, I said, 'This is what we are going to do.'" Given conventional skepticism about police reform, the case is instructive: it demonstrates the capacity of police departments to change and the potential of civil law to influence them. Therein lies an opportunity.
Tort claims based on police abuse of citizens are a familiar part of a city counsel's caseload. Jury awards and settlements now total tens of millions of dollars each year nationwide. Though numbers vary from place to place, amounts for larger cities are startling: New York paid about $70 million between 1994 and 1996 to settle police brutality claims; Los Angeles paid $79.2 million between 1991 and 1996; Philadelphia paid $32.6 million between 1993 and 1996; and Detroit paid about $92 million between 1987 and 1997.
Concern over the cost occasionally pressures police to change their policies, but more typically it doesn't. Seventy million dollars over two years seems like a lot of money, but it becomes a manageable cost of doing business in the context of New York City's annual expense budget, which now exceeds $30 billion. In New York, as in other cities, settlements and jury awards are paid out of general city revenues, rather than out of the police department's budget. And individual officers are rarely required to contribute to settlements or judgments themselves.
Though the discovery process in civil suits produces a trove of data about police department policies (or the lack of them) and the backgrounds and training of officers, this information is rarely put to constructive use by police administrators. No one compiles information developed for the legal record in a way that could prove useful for research or policy analysis. "This disconnect between lawsuits and [police] internal investigations is baffling," write the authors of a new report on police brutality prepared by Human Rights Watch, "because suits could be used as a management tool."
It is baffling indeed: the need to harness the money and the data more productively grows ever more acute as new crime patterns and new police strategies generate more complaints of abuse.
The Fear Factor
While police departments like to convey a quasi-military image of themselves, with all that that implies for the ability of captains, lieutenants, and sergeants to control the actions of patrol officers on the street, the image is misleading. Unlike soldiers on a military operation, police officers disperse throughout a pre cinct alone or in pairs, exercising individual judgment with little direct oversight as they respond to calls.
For a lot of cops, judgment gets distorted by fear as they find themselves confronted with violence in tough urban neighborhoods. Unless they are prepared to administer unauthorized beatings when their authority is challenged, these cops say, their lives are at risk. No set of guidelines handed down from headquarters is going to alter that survival instinct.
"Police on the streets perceive themselves to be in a situation of potential danger, in which they must take control; some of them think that if they cannot get control any other way, they must use violence," writes New York University Law Professor Paul Chevigny. An experienced police officer put the problem in plainer terms for a New York magazine writer: "It's the rules of the jungle. If someone disses you, you take him in an alley, slap him in the mouth, and tell him, 'Hey, fucko, don't you ever talk to me like that again in public.' If it's known in the street that you can be stepped on, you've got a big problem."
The extent of abuse is hard to measure. While the Justice Department regularly compiles and publishes figures for police officers killed or assaulted in the line of duty, it does not record figures for civilians killed or assaulted by police. Where police departments do keep track of such events, they are notoriously reluctant to make the data public.
There are reasons to believe, however, that abuse of civilians increased during the late 1980s and early 1990s. It's likely that the increase in civilian assaults on police during this period was mirrored by an increase in police assaults on civilians. As drugs proliferated on urban streets, assaults on police officers nationwide rose from 60,153 in 1984 to a peak of 81,252 in 1992 before falling back to the 1984 level. This increase of 26 percent outpaced the 10 percent increase in the number of police officers at work during those years. In the same time period, the percentage of assaulted officers who suffered a personal injury increased from 33.6 percent to 36.5 percent. Researchers analyzing the crime wave that coincided with those assaults say it was dominated by young people armed with guns. This real threat inevitably intensified the police culture of fear and the patrol officer's belief that survival depends on authority maintained beyond the niceties of policy or law. While assaults on police diminished after 1992, the habits acquired during the violent years may remain in place.
During the 1980s and 1990s, furthermore, police managers began experimenting with proactive strategies designed to prevent crime rather than simply reacting to 911 calls for help. Two of the more familiar ones—community policing and quality-of-life policing—give patrol officers more ways to act on their fear.
Community policing requires greater contact with the public as officers spend more time on foot patrol and shed the insulation of their patrol cars. Early idealists of the movement assumed that greater police contact with a neighborhood would lead to less abuse of its residents, but to some students of police that now looks naive. Whatever else it means, increased contact also means increased opportunities for abuse. Herman Goldstein, the intellectual godfather of community policing, observes that the strategy "gives cops greater license to exercise discretion in a geographical area. In some departments that can be done with confidence; in others, there is trepidation in doing that because the absence of controls is an invitation to abuse." "To know people isn't necessarily to love them," says Steve Mastrofski of Michigan State University. "A police officer that takes possession of a neighborhood now may be inclined to use force against people who threaten the tranquillity of that neighborhood."
Theorists advancing the quality-of-life, or "broken windows," policing strategy developed by New York Police Commissioners William Bratton and Howard Safir have always recognized its darker side. The original broken windows argument, formulated by James Q. Wilson and George L. Kelling in a now famous 1982 Atlantic Monthly article, called upon police to enforce small violations against public order as well as major felonies. The idea was that serious criminals are emboldened as orderly street life turns chaotic—the central image is of an abandoned building with a single broken window; as it remains unrepaired, people proceed to break more windows.
Among the police Kelling and Wilson observed at work in preparing their article were officers patrolling Chicago's Robert Taylor Homes where residents were eager for the police to "do something" about youth gangs. "What the police in fact do is chase known gang members out of the project. In the words of one officer, 'We kick ass.' Project residents both know and approve of this."
Kelling and Wilson acknowledged the danger that police defending social order according to community norms might "become the agents of neighborhood bigotry." They say they have no good response to this concern "except to hope that by their selection, training, and supervision, the police will be inculcated with a clear sense of the outer limit of their discretionary authority."
In a 1996 book entitled Fixing Broken Windows, Kelling and Catherine M. Coles described efforts to implement the idea in a number of settings. They, too, recognized the potential for abuse by police granted greater discretion, but they offered only vague and theoretical suggestions for dealing with it. The aggressive Bratton-Safir order maintenance program pursued in New York City is certainly the largest experiment with the concept to date. This approach holds precinct commanders strictly accountable for controlling all criminal activity in their precincts, including quality-of-life offenses like drinking or urinating in public. People stopped for these minor violations are taken into custody if they cannot produce a valid government-issued photo identification. They are then interrogated about more serious criminal activity in the neighborhood as they wait for someone to come in and verify their identity.
This aspect of the program has apparently suppressed a certain amount of spontaneous crime, generated a great deal of useful intelligence, and reduced the number of people on the street with guns. But while it coincided with a big decline in crime rates, it also coincided with a big increase in complaints of police abuse.
Complaints submitted to the city's Civilian Complaint Review Board (CCRB) increased by more than half, from 5,487 in 1993 to 8,869 in 1996, before declining a bit the following year. Even these reports of abuse severely understate the reality, since so much police misconduct never gets reported. Young black and Hispanic men from inner-city neighborhoods tell disturbing tales of police on patrol who simply rough up anyone they consider suspicious, not bothering with the formality of citing even a minor violation.
The CCRB statistics and the anecdotal evidence lend credence to the belief that many cops thought the new strategy, accompanied by get-tough rhetoric on the part of the mayor and police commissioners, granted tacit license for cops to indulge in any abuse they found necessary to maintain their respect on the street and handle their fear. The issue troubled Safir so much that he started a "courtesy, professionalism, and respect" initiative to encourage better behavior on patrol—a relatively cosmetic move that appeared to feed cynicism more than it reduced abuse.
How to get beyond the cosmetic? The debate over that question has circled for years without settling anywhere promising. Civil libertarians argue for civilian review of police policy and practice, an idea fiercely resisted by police chiefs and police unions. The unions argue that civilians who have never experienced the pressures cops feel on the street can't possibly render fair decisions about their behavior, while police chiefs insist that they need full control over the officers under their command. If people don't like the way the department operates, chiefs say, they should persuade the mayor to replace the chief with one who will do a better job, not try to interpose a panel of civilians between the chief and the officers.
Such arguments easily carry the day with the mayor of a crime-plagued city who wants to keep the police chief happy and needs police union support. All too often, civilian review panels are created or given expanded powers in the wake of media firestorms over brutality cases, then quietly emasculated with funding restrictions or other measures as public outrage subsides. This is unsatisfying at best. While there is some validity to the police arguments against civilian review, they are hardly reassuring when made by the same cops who say that their physical survival depends on a willingness to bend the rules in order to maintain respect on the street. And police departments often don't distinguish themselves with tough internal investigations of misconduct. Patrol officers go to great lengths to cover for each other's mistakes—in the squadroom subculture, potential informers are given to believe that an officer tagged as a "rat" may find crucial backup slow to appear in a dangerous situation. The same fear that motivates abuse also cements together the "blue wall of silence" that severely hampers internal investigations.
While all this feeds pessimism, it shouldn't justify despair. History teaches that law and policy can impose effective controls on police behavior when the forces are properly aligned. As a result, cops today are in some respects less routinely abusive than they were 100 or even 30 years ago. For example, the "third degree"—torturing suspects until they confess—was commonplace for much of the twentieth century until the Supreme Court began insisting that only voluntary confessions could be admitted as evidence in a criminal trial. Today, police who are caught torturing suspects are the exceptions that prove the rule.
The use of deadly force declined sharply after police chiefs during the 1970s and the Supreme Court in the 1980s limited a patrol officer's power to shoot at "fleeing felons." New policies and laws reserve deadly force for offenders who pose an immediate physical threat to themselves or others. James Fyfe, a respected police scholar who has worked as a street cop in New York City, found that after the flamboyantly tough Frank Rizzo left office in Philadelphia and his successor imposed restrictions on deadly force, fatal shootings by police fell by 67 percent. Subsequent national studies found that police shootings reached a high point in 1971, then declined to about half that level by 1990.
For a more recent example of what might be possible, look to Los Angeles County and the work of an attorney named Merrick Bobb. After four controversial shootings by sheriff's deputies during the summer of 1991, county supervisors feared a flood of brutality complaints and litigation. They appointed Judge James G. Kolts to lead an inquiry, and he appointed Bobb to investigate the department, which polices the sprawl beyond the L.A. city limits and runs the nation's largest county jail.
After Judge Kolts issued his report, the county board of supervisors appointed Bobb a special counsel to continue evaluating the department and monitoring its implementation of the report's many recommendations. This sort of follow-up may well be unique in the history of such inquiries, especially since the county supervisors set Bobb up with extraordinary access: virtually on demand, he can examine all files and records anywhere in the department and interview any of its employees. He is required to submit semiannual reports of his findings. The reports, available to the public, are remarkable documents.
Bobb criticizes lax policies that allow off-duty deputies to carry their weapons when they go out drinking, and he worries that the department is not fully honoring its promise to treat blows to the head as a form of deadly force. He even questions one regional station's policy of charging visitors two dollars for parking, since it may discourage people who show up to file complaints. At the same time, he praises the department's development of a high-tech system for sifting through department records on use of force, internal investigations, civilian complaints, and other data in order to identify individual deputies with a tendency to abuse their power on the street. Those so identified are subject to retraining, mentoring, psychological counseling, and removal from street duty.
With his investigative power and his willingness to praise as well as criticize, Bobb appears to have developed a constructive working relationship with the department. "It's good to have an independent person reporting on us," says Michael Graham, acting under sheriff of the department. "It keeps the agency focused on critical integrity areas. . . . He's been wrong from time to time, but generally, he's right on target, painful as it is." Bobb's current appointment expires in the year 2000, but it could be extended. (It should be noted, however, that the department is in the midst of administrative change following the sudden death of the sheriff, Sherman Block, and the election of Lee Baca as his successor. Baca takes office December 7.) The combination of the Kolts report itself and Bobb's determined follow-up are paying off for the sheriff's department and the county, not to mention the public. Incidents involving the use of force fell from 3,214 in 1994 to 1,916 in 1997, even though arrests increased from 94,631 to 98,782 during the same period. "It is possible to enhance officer safety, improve community relations, implement community-based policing, and control liability by holding officers and their supervisors strictly accountable for their performance, including use of force, without compromising crime-fighting efforts," Bobb concludes. Every city should have a Merrick Bobb, certainly, but it's not at all clear that every city can. The progress in Los Angeles County has depended on a confluence of forces—including county impatience with brutality complaints in the wake of the Rodney King catastrophe nearby—that have guaranteed Bobb reliable political support. Those conditions don't necessarily exist elsewhere; right now, it's hard to imagine New York or Chicago granting an outsider similar access for the purpose of public evaluation.
Financing Police Civility
But if every city can't have a Merrick Bobb, every city could have something else: an independent, nonprofit law firm that uses lawyers' fees from civil suits to finance a number of activities designed to diminish police brutality. While nothing like this exists today, a few organizations have recognized the value of taking a systematic approach to civil litigation against police. Groups in Los Angeles, San Francisco, and New York centralize referrals of plaintiffs to attorneys who specialize in brutality claims; the San Francisco and New York "Police Watch" groups pursue aggressive public education as well. New York City's Neighborhood Defenders of Harlem, a nonprofit criminal defense group, for a time maintained a civil bureau to help clients with civil matters arising out of arrests on criminal charges, including police brutality claims. And New York City's Legal Aid Society has formed a committee to discuss establishing a civil bureau that could generate fee revenue from police cases.
There is good reason to believe civil suits pursued in order to influence policy, rather than simply to win awards for clients and fees for attorneys, could make a difference. The 1994 crime bill authorized the civil rights division of the Department of Justice to seek civil injunctions against police departments where it is possible to prove a "pattern and practice" of misconduct. In 1997 the department settled such actions against Pittsburgh, Pennsylvania, and Steubenville, Ohio, with consent decrees in which the cities agreed to a variety of reform measures. Federal officials are said to be monitoring similar pattern and practice issues in Los Angeles, New Orleans, Philadelphia, and New York.
A serious effort to exploit the potential of civil litigation in a given city would require a local agency resembling the nonprofit legal groups that litigate against threats to the environment. It would take on individual police abuse cases for their own sake as well as cases that dramatize the need for specific reforms. Initially, such a project would need an independent source of funding—foundations or individual benefactors—with the hope of eventual financial independence based on fees from lawsuits. Given the amounts now routinely paid by city governments, this is not an unrealistic hope. Such an agency would enjoy total independence from the difficult politics of police administration.
The group's charter should include a number of activities. It could help federal investigators prepare pattern and practice lawsuits as authorized by the 1994 crime bill. It could run a big public education and media program, calling attention to important abuse cases, helping the public understand the issues they raise, and pushing for appropriate changes in state and local law. It could offer to mediate on behalf of people who feel they have been inappropriately cursed or pushed around, though not badly injured, by officers of the law. Such cases may not support serious tort claims, but the aggrieved still deserve a hearing. Mediation could produce apologies for victims of genuine abuse and explanations for those who misread a cop's reactions.
Perhaps most important, the agency would over time develop an invaluable database of citizen complaints. It could create its own lists of individual officers whose actions generate disproportionate numbers of complaints. It could quickly identify problem areas, like the Los Angeles dog bites, and bring them to the attention of the police department and the public. It could make sure that information developed in civil litigation is passed along to the police commanders, who could use it to revise policy and procedure. The database also could become a major resource for academic research.
In addition to such an agenda, managers of the project should try to distinguish themselves from the ideologically driven civil libertarians who often sue the police. They could do this by making clear their willingness to seek justice for citizens abused by police while maintaining an equal concern for the needs of police in the line of duty.
Police managers are most able to appreciate critics who accept that balance. "It's helpful, and it's good public policy," Los Angeles Undersheriff Michael Graham says of Merrick Bobb's work. "In the end, the public is well served by it."
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