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The Habeas Citebook: Prosecutorial Misconduct

Police State: From Social Justice to Social Dominance

Just when we thought things could not get any worse, somehow they did. In the midst of a global pandemic, economic collapse, mass unemployment, and racial divide, we were exposed to a dark truth about police brutality—a truth we could not unsee because the weight of its evidence pressed down squarely on our neck.

Chances are that by the time you read these lines the world will have already changed again. No one now can possibly keep up with the seismic transformations taking place globally, a paradigm shift triggered at the surface level by violent events perceived as reactions that point to racism throughout the nation and the world—implicit and obvious but actually resulting from a deeper groundswell of longstanding social frustration.

We now live in a country where factions of our citizenry believe police have moved from revered to racist, from guardian to warrior, from peacekeeper to punisher, and from public servant to public enemy number one.

Fortunately or unfortunately, video footage shot in real-time does not lie, but neither do the numbers. The difference is where we choose to look. What we are failing to see is a paradigm shift that has moved the pendulum of our society from a culture of social justice to one of social dominance.

From Torch Bearer to Flame Thrower

What it takes to set off an explosion is a spark. The spark, in this case, was the killing of George Floyd in Minneapolis at the hands of four police officers, a Black man helpless on the ground, choked to death under the knee of an emotionless White cop whose cavalier behavior, with hand in pocket, seemed almost sociopathic.

There was something essentially archetypal in this videotaped death instantly streaming on nearly every media outlet in the world. A ubiquitous image burned into our minds and onto our hearts. Unlike the violent and senseless beating of Rodney King on a dark street in Los Angeles, this was a cold-blooded spectacle taking place in broad daylight, an existential display of the exertion of government sanctioned power on the helpless, a grotesque lack of empathy, and all of it wrapped in a big blue bow for the entire world to observe.

The words of the dying man, “I can’t breathe,” at a time when thousands in the world are dying precisely because a virulent infection deprives them of breath, Floyd’s neck-compressed suffocation and his demise instantly became a communal symbol of a world held hostage, trapped, helpless to resist, unable to fight back against economic oppression, biological infiltration, and now, victimization at the hands of a new group of rogue warriors.

George Floyd’s killing also touched a nerve and set off a greater sense of volcanic discontent that is as global as the Covid-19 pandemic. The underground chambers where the lava has been boiling for decades, where the eruption of human emotion is palpable from fear of an invisible disease. We grew more stressed from the deep downturn of the economy—a continuing anxiety about our future as the number of COVID-19 cases continues to grow. What boils up to the surface is economic disparity, the enormous gap between the haves and have-nots, and frustration with issues of racism and class discrimination. It seems that social justice is dead on arrival.

From Guardian to Gang Member

Police forces and law enforcement agencies around the world have become intrinsically tools of oppression. Whether it be ideological, political, or economic power, police forces have been transformed to follow a gang-culture that resembles an “us against them” mentality even when such turf wars are happening in the very neighborhood where an officer may reside.

Local protests took many forms and decried many injustices, but they existed locally first and foremost. Initially, most were aimed at local governments and municipalities, and they were directed at the police departments assigned to keep that community safe. The tables have been turned, and the police are the very ones now under attack.

Perhaps the COVID-19 lockdowns brought to the surface innate vulnerabilities. Maybe it was the result of lost wages and looming unemployment. Whatever it was, George Floyd’s death was the spark that ignited this virtual tinderbox. The combustion of an atavistic scream decrying “enough is enough!” Enough of the inhumane bureaucracies, senseless governance, and a punitive legal system designed to punish and incarcerate minorities and the poor—a system that now defined its own citizens as criminals and castigates all who fail to bow to oppression and exploitation.

In recent years, levels of crime in the U.S. have fallen dramatically, but confrontational incidents continue to play out. Michael Brown in Ferguson, Breonna Taylor in Louisville, Ahmaud Arbery in Brunswick, and dozens of similar incidents since 2014 have triggered spasms of recrimination and media scrutiny and speculation. Now, in the pressure-cooker atmosphere of a global pandemic, the killing of George Floyd and Rayshard Brooks have caused an explosion of public awareness and protest. These cases show a pattern, but racism may not be the common denominator.

The Numbers Don’t Lie

In the U.S., where police have killed 7,633 persons between 2013 and 2019, frustrations have continued to build for many years. While many flashpoints of police violence have sparked cries of systemic racism on the one hand, and “a few bad apples” on the other, the problem is far deeper and far more complex than either of these two generalized views. To be sure, there is ostensibly, a racial component, but it is far greater and more subtle than an implicit bias of officers patrolling the streets.

Policing in the U.S. is predominantly local. There are 18,000 law enforcement agencies, most of them small; only 65 are federal. They employ roughly 800,000 officers. The agencies are composed mostly of White officers, but in major cities, they are well integrated. In Chicago, for example, minorities make up 47.9% of the force. Of those, 24.7% are Black officers. In New York, minorities make up 47.8% of the force; Blacks are 11.6%. In L.A., 64% of the force is made up of minorities, 11.6% Black, 43.4% Latino. And yet there persists the narrative of the White cop and the Black offender, of the traffic stop gone wrong when someone is “Driving While Black,” or the Black suspect resisting arrest. The stereotypes are endless. The Black citizen shot while unarmed or the poor and subjugated family who are the victims of an unannounced home intrusion of overzealous White officers. Yes, unfortunately, these incidents happen, but we are not receiving the whole story from the media. This is an issue that is covered extensively by the media, both liberal and conservative, each side viewing the incidents through their own political filter and with their own agenda in mind.

Statistics show that Blacks are proportionately three times more likely than Whites to be killed by police. Death at the hands of the police is now the sixth leading cause of death for young Black men.

Young Black men are 2.5 times likelier to be killed by police than young White men. Studies show however, that on the issue of police shootings, the numbers indicate that there does not exist a clear causal relationship between implicit racial bias and a police escalation culminating in violence. There is a wider perspective at issue. Generations of oppression, abject poverty, rampant unemployment, and lack of opportunity have been endured within many Black communities. The result has been a proliferation of criminal activity growing out of this large-scale disparity.

There are important differences between White and Black neighborhoods to be sure. Blacks in inner city neighborhoods have been victimized and profiled as a result of the “War on Drugs” of the 1980s. This association in the minds of law enforcement continued to persist to the point that it became a self-fulfilling prophecy. Prison populations swelled with Black drug offenders.

Recent trends, however, paint a different picture. From 2008 through 2018, the imprisonment rate among Blacks dropped by 28%, Hispanics dropped by 21%, and Whites by only 13%. By 2018, the imprisonment rate of incarcerated Blacks reached its lowest levels since 1989. Most, it seems, have broken out of the cycle, yet disenfranchisement continues to persist in certain sectors, especially in minority businesses.

Of those who have endured, many small, Black-owned businesses have recently been ravaged by the pandemic lockdown, forced to close their doors permanently—twice the rate of White-owned businesses. Many, it is reported, were left out of the CARES Act Paycheck Protection Program. These blighted areas have become hot spots for anger, frustration and resentment, and now, with the imposition of a global pandemic and a community lockdown, recent hardships have “torn the Band-Aid off of the wound.”

Over the years, constant exposure to Black offenders predisposes cops (White and Black) to anticipate criminality even if none exists. Though they are only 13% of the population, data show Blacks commit 52% of all homicides. This reality fosters a stereotype. In Chicago this weekend as I write this article, CNN is reporting 107 shootings within the city proper, and nine confirmed homicides. These numbers become little more than a “blip on the screen” for most media outlets because they are simply not sensational enough despite the fact that 116 lives and families have been altered, some forever.

Even though the media persistently ignore the statistics, the truth is that far more Whites are killed by police than Blacks. Between 2015 and 2016, 1,051 Whites were killed by police compared to only 510 Blacks. Of course, this number can be deceiving when we account for a per-capita ratio. Before doing that, we must first consider several mitigating factors. Less than 1% of police killings involved an unarmed victim, making this event extremely rare. Across all racial groups, 65.3% of those killed by police possessed a firearm at the time of the death.

Instances of police shootings of White suspects and/or random civilians are remarkably similar to cases of the killings of Black suspects. Hundreds of cases transpire year after year involving White suspects shot and killed as a result of belligerent acts while intoxicated, following a routine traffic stop, confronted erroneously by police, or unprovoked and simply sitting in the sanctity of their own home, yet many go unreported.

While violent incidents involving White officers point to a larger issue in policing, there is a racial component that cannot be dismissed. With consideration for the per-capita ratio, Whites are 62% of the population but represent half of those killed by police since January 2015. Blacks, on the other hand, represent only 13% of the population yet accounted for a full one third of all victims killed by police. To explore these numbers further, in a typical community in the U.S. composed of a mixed-race population, the White populace would account for only 8% of police killings while Blacks would account for 23%. On the surface, the rationale that there exists an obvious racial bias would seem like the most facile explanation, but let us dig a bit deeper.

The killing of a White suspect by police does not draw the kind of media attention reserved for White-on-Black incidents. One of the mainstream media’s thematic agendas is America’s enduring legacy of racism—the endless trauma of slavery and the plight of an entire segment of the American culture. The false narrative persists that Black suspects are killed in large numbers while White suspects are let off with a slap on the wrist. The statistics, however, do not bear that out. For every George Floyd or Rayshard Brooks, there exists similar instances where White men are killed by overzealous police officers.

Between 2003 and 2009, there were 98 million arrests in the United States (roughly 1.17 million per month); 4,813 of those arrests involved an arrest-related death. And 2,931 of the 4,813 crimes of death were declared homicides by law enforcement personnel. Of the 4,813 total deaths, 42.1% were White deaths, 31.8% were Black deaths, and 19.7% were Hispanic deaths; specifically, 2,026 White, 1,529 Black, and 949 Hispanic deaths. The notion that police are going into Black neighborhoods and shooting people is an enduring myth. In reality, there are other forces at play.

While the existence of implicit racial bias is undeniable, there is a factor that is far more central: the senseless overzealousness and militarization of police in an era of social dominance. This phenomenon is the result of a skewed and unbalanced training process that has shaped police officers and law enforcement from a traditional role of guardian to new role as warrior.

From Peacekeeper to Warrior

The first impulse is to reform policing. But first we would need to analyze objectively just exactly what we want our police forces to do, what their role should be in society, and how they should be managed. The truth is that for decades we have not paid close attention to this problem. If anything, we have contributed to it.

Before America’s reactionary obsession with “law and order” in the 1970s, when prisons were thinly populated mostly with violent and truly dangerous people, police were looked upon as guardians of social justice, as peacekeepers whose role was to protect and serve. Collectively, if not accurately or honestly, we were in an Andy of Mayberry mindset; policemen were local sheriffs or constables who knew us on a first-name basis. They were the “Joe Fridays” of the day—calm, collected, and fair-minded, and their beat was a quiet tree-lined Mainstreet. Of course, this was an era that has long passed. Police and law enforcement began to morph into a “warrior culture” as far back as the Prohibition of the 1920s.

The New York Police Department became known for its “Broken Window Policing” policy—a concept in which officers are tasked with policing every move and every minor infraction (investigating every broken window), thereby preventing larger or more serious infractions. This theory suggests that the more police presence that exists on every corner and in every public venue, the less likely citizens will engage in serious crime.

Although violent crime in New York has dropped dramatically since the inception of the program (which may have resulted from a myriad other factors), the policy itself has critics, many suggesting that policing every minor infraction is both a waste of police resources and an infringement on the day-to-day liberty interests of society. This concept did not originate with the NYPD, and the skeptics may have a point.

It was during the Prohibition Era of the 1920s that police were reassigned to a new pursuit—the investigation of any and all illegal alcohol-related infraction, including the arrest of bootleggers, moonshiners, speak-easy owners, and even the patrons of alcohol consumption themselves. Shortly into this new order of policing, communities began to see violent crimes increase as much as 246%. South Carolina, which enforced prohibition to the maximum extent of the law, experienced an increase in homicides of 45%. The bottom line was that police, while distracted by chasing rum-runners, neglected more serious investigations.

As mobsters began to prosper during Prohibition, bad guys had larger and more lethal arsenals that included “Tommy Guns” and explosives. Police were tasked with meeting this call with equal, if not greater force. A demand for warlike weaponry on the streets of America began to grow, and police forces, for the first time, began to resemble warriors.

Shortly after World War II, Los Angeles Police Chief William Parker was described by University of Georgia’s associate professor of history Stephen Mihm in his book, Policing, as “the archetype of a new culture of policing.” Mihm depicts Parker as a police chief who “despised community policing.” Parker believed that officers should not live in the same district or neighborhood that they are assigned to protect. Parker suggested that neighborhood ties to police would lead to corruption.

After the Watts riots in 1965, Parker’s successor, Darryl Gates, took the concept of an impenetrable police force to a new level by enrolling his officers into “counter-insurgency” tactical training with the Marine Corps. It was Gates who created the very first “Special Weapons And Tactics Team” (“SWAT”), recruiting sharp-shooters, marksmen, and explosives experts from the veteran pools of the Vietnam and Korean wars. His officers were skilled in concealment, ambush, night operations, infiltration, and guerilla warfare, none of which had ever previously entered into civilian police training. SWAT raids grew from 3,000 in 1980 to 50,000 by 2014 and upward of 85,000 today.

By 1968, these military-style tactics eventually morphed into the “Model Civil Disturbance Plan” followed by the “Senior Officer Civil Disturbance Orientation Course” (“SEADOC”), both designed to contain civilian populations en masse. To further support these initiatives, the “law and order” faction of Congress enacted the Law Enforcement Assistance Administration (“LEAA”), which facilitated the transfer of military equipment to civilian police departments. Equipment began to arrive in local precincts that included helicopters, body armor, armored vehicles, and military-grade weapons and explosives. In 1971, the first “no-knock” raids were introduced as an effective tactic to intimidate drug traffickers during Nixon’s War on Drugs.

The term “Warrior Cop” was first introduced by journalist Radley, who described a new era of policing that would give our peacekeepers and guardians a new and intimidating image. In 1981, Congress expanded LEAA under the “Military Cooperation with Civilian Law Enforcement Act” enabling police departments to access expanded military tactical equipment as the War on Crime grew.

Since 1990, it is estimated that $5.1 billion in military equipment has been shared with police departments throughout the country, including, armored vehicles, military-grade equipment, weapons, and explosives, yet less than one third of that equipment has ever been utilized on the street, according to Brian O’Neill of the Pittsburgh Post-Gazette. He reports that three New Hampshire towns, less than 30 miles apart, were each granted armored personnel carriers.

To qualify for one of the vehicles, the town of Keen described a need to protect its annual pumpkin festival as a possible terrorist target. O’Neill notes that police are able to purchase bayonets (just in case) at $25.69 per blade and, if the need arises, a mine-resistant tactical vehicle at the sweetheart deal of $733,000.

In 1997, Congress introduced the first version of the “National Defense Authorization Act,” better known as “Program 1033,” updated again after 9/11 which, according to Mihm, expanded the availability and access of tactical military equipment to police precincts by permitting those departments to qualify as approved para-military units, eligible for everything from attack helicopters to tanks. You just never know when you might need a shoulder-to-air rocket launcher while patroling America’s streets.

The security arm of the Los Angeles County School District received a grenade launcher from military surplus but was eventually pressured by board members to return the equipment.

Another addition to police expansion of power came in the form of an initiative known as, “Civil Asset Forfeiture” (“CAF”). Under CAF, police have the right to seize money and property from suspected criminals without a conviction or even an arrest. This is essentially “legal theft by police.” What began as an opportunity for police to seize the home of a young drug dealer’s grandmother who happened to learn that her grandson was selling drugs out of her game room downstairs grew into a multi-billion dollar money and property grab. Some examples of seized assets include a $5 million helicopter now owned free of charge by the L.A. Police Department, a $1 million mobile command bus commandeered by the Prince George County, Maryland Sheriff’s Office, and $227,000 in cash for the purchase of a new tank by the Douglasville, Georgia, police.

A Culture of Social Dominance

By all accounts and metrics, the U.S. is a violent society and has been one from its beginnings in revolt and upheaval. There are serial killers of all kinds, mass shooters, young White supremacists—think Dylan Roof who slaughtered people in a church in Charleston while they prayed. There are those who kill for greed, those who kill for sport, and those who kill for no good reason. The U.S. has maintained a sociopathic streak throughout its history. An innate ability to kill without conscience in the name of a cause—a cause often blindly followed and wholly misunderstood. We are seemingly always on the edge of chaos, held together by frail filaments of social connection and economic interest. In a free, pluralistic society, what emerges is not just the best of human impulses but also the absolute worst.

We look to police to provide a sense of public safety. But what happens when police become a mirror of our foibles, acting only as our sentries, as our “perimeter guards”—a term affectionately given by Attorney General William Barr to his riot police tasked with clearing Lafayette Park for President Trump’s photo-op. What happens when policing is co-opted and corrupted by the system and by the very society it has been tasked to protect?

Dominance Now a Global Epidemic

Modern global societies, whether capitalist-democratic or authoritarian, are vast pyramid hierarchies where power and control flow top-down. The U.S. Constitution was a noble rational-minded attempt to diffuse this typical model of social order, to distribute power through a web of checks and balances.

Yet, since its conception, consequent generations have done everything they could to disable it and return society to more pragmatic territory. It took more than a hundred years after the founding of the Republic to reclaim a sense of moral justice, at least on paper; it took another hundred years to inspire the civil rights movement. Six more decades have elapsed, and the issue of racial equality is still in dispute. And that is just a small part of the larger problem. As we attempt to move back to a culture of social justice, we venture farther away.

America, as a culture, is driven by social dominance. America is also the incarceration capital of the world. There are now 2.2 million people behind bars in the United States and another 4.5 million on some form of active custody. We all know the statistic—America has 5% of the global population yet holds 25% of all the prisoners worldwide. As if that was not enough, our courts continue to sentence people to lengthy, draconian sentences that destroy the lives of individuals and their families socially and economically—and all while providing virtually no rehabilitative process. We are aware of the successful penal systems of the Netherlands, yet we fail to appreciate the judicial practice of “sealing” felony records upon release in order to give a former prisoner the opportunity to truly start anew. We replaced rehabilitation with retribution.

It seems that no amount of racial diversity or sensitivity training or integration can overcome the failure of a system based on dominance and subservience. These systems will invariably mirror the social hierarchy of the society in question. That’s why the protests in the U.S. have now moved onto a global stage. Nations everywhere are demanding change—a return to social justice. Much like that which we observed during the Arab Spring, their citizenry was awakened through a common goal—to restructure their own toxic hierarchies.

We are seeing a mirror of our own power struggles within the political and authoritarian societies of other nations around the world, like us, each seemingly propelled toward a system of social dominance. Nation-states such as Brazil, Indonesia, or our neighbor to the south, Mexico, have experienced their own “George Floyd moment.”

Protests flared up in Brazil’s Rio De Janeiro where police forces were granted absolute impunity alongside a militarized presence, which killed 1,810 citizens last year, mostly poor. Three out of four were Black.

Most of the dead, according to Brazilian police, were gunmen from the “favelas,” the shanty towns of the poor, destitute, and homeless.

Populist President Jair Bolsonaro has vowed to “kill criminals like roaches” and has outfitted police with helicopters, assembled as riot-clad “goon squads” tasked with conducting deadly botched raids, and ordered to kill innocent bystanders with no consequences—a form of law enforcement he may have perfected by observing the Philippine “death squads” under Duarte.

In Indonesia, the banner of Black Lives Matter (transformed into “Papuan Lives Matter”) was unfurled in reaction to the oppression of Papuans whose skin is darker than that of other Indonesians. In 2019, a Papuan student dormitory was besieged by a racist mob calling the inhabitants “monkeys.” Rather than dispersing the mob, police forces “stormed the dorm with tear gas and arrested 43 Papuans,” The Economist reported.

In Mexico, in the State of Guadalajara on June 4 this year, citizens took to the streets to protest the death of Giovanni Lopez, killed while in police custody. The protests forced an arrest and provoked murder charges against three officers involved. Although the outcome of the case against the authorities has not yet been determined, it is a pattern beginning to be observed around the world in Western and developed countries. Territorial nation-states such as Hong Kong will likely continue to challenge oppression and police brutality that has recently reemerged—the return of thousands of years of Chinese authoritarian rule.

While there has been sporadic unrest in various cities throughout the world at different times and for various reasons, the perfect storm of global unrest triggered by George Floyd’s death is, by all accounts, unprecedented—a true zeitgeist of rebellion.

The Struggle Between
Black and Blue

Power and control, the human need for them, are pervasive. Social psychologist, Felicia Pratto defines “Social Dominance Theory” as “a basic idea [in which] the persistence of social inequality derives in part from people’s endorsement of hierarchy-promoting ideologies.” Today, we have an insatiable hunger for authority, the need to be in charge, in control, to stand out, to feel important, to express a sense of dominance, and to have one’s voice be the loudest. We now swim in a sea of selfies and social media where everyone is attempting to make a splash while everyone else is just below the surface attempting to make their own. As we drift further out into this sea of anonymity, our personal desire and the desire of institutions is to cling desperately to social dominance.

This instinct drives policing. At its core, policing is about exerting power and control, dominating, imposing the rules. Current police training is driven by this maxim. An officer must be in control of a situation at all times. Anything else may be perceived as weakness, as a betrayal of duty. In his mission of “keeping the peace,” an officer’s duty often becomes distorted, driving him to immediately resist all imposing actors or to disable or eliminate any existential threat. It is a Dirty Harry-style of public safety that Americans have grown to expect.

One possible solution that has already been largely implemented is the integration of police forces. Today, about 75% of all police officers are White. In the Harvard Law Review, authors Devon W. Corbado and L. Song Richardson look at the way the integration process allows police departments to undertake an internal review and investigation. The authors point to integration concepts described in James Forman’s book, Locking Up Our Own: Crime And Punishment In Black America (Farrar, Giroux and Straus, 2017). “Across the ideological spectrum,” the author states, “people have had to engage the question of whether, especially in the context of policing, it’s fair to say that Black lives are undervalued.... The emergence of Black Lives Matter movements have made it virtually impossible to be a bystander in the debate.”

In their analysis of Forman’s work, Corbado and Richardson highlight the conflictive role of facing integrated minority officers in their jobs. There is the “Black” line, and then there is the “Blue” line. Black officers walk a tightrope when attempting to balance both. On one side, while on street patrol, they face criticism and attack from members of their own race—often referred to as “Uncle Toms” or “Sell-outs.” On the other side, they face the possibility of being accused by fellow officers of lenience or favoritism when dealing with Black suspects. Yet, Black officers are equally subject to the prevailing tensions and dangers that are inherent on the job.

Police are often first respondents to extreme situations that call for quick thinking, not unlike what is often referred to by soldiers as “the fog of war,” where split-second decisions, control and command, and life-altering imperatives define the difference between success and failure—between life and death. Domestic violence calls have been known by officers to involve the greatest risk and volatility, yet recent protests, such as those now demanding “defunding” police reforms in San Francisco and Seattle, are also calling for specialized responders rather than police. A domestic violence call, they suggest, would be replaced by a domestic mediator such as a social worker or behavioral psychologist. A better idea might be the use of technology to incorporate the best of both. Similar to the process undertaken by first responder paramedics when communicating in real-time with emergency physicians, social workers could appear on a small screen just below the officer’s body cam, thus incorporating officer control with the assistance of mediation. Technology has found its way into nearly every aspect of modern-day policing, some for the good and the others not so much.

Robocops of Tomorrow

Interestingly, only 18% of cops actually wear active body-cams. The mind reels at the thought of what may be undisclosed in the other 82% of encounters, interrogations, and arrests where no witness exists to share an alternate perspective. Technology will be the “game-changer” on both sides of tomorrow’s law and order.

Policing weaponry of the future is arriving daily from the secret laboratories of the Defense Advanced Research Projects Agency, which includes technologies that are assigned “Classified” status. Police will now have access to a form of ray gun that directs a microwave at a suspect and interferes with brainwave activity. Another weapon expands the capability of the Taser for crowd control through a wide-angle spray from a Taser shotgun. In addition, there are multiple acoustic and energy-directed weapons that emit an invisible but deadly deterrent.

Of course, there have been multiple civil actions directed at police departments, citing Fourth Amendment privacy complaints. Today, we see police forces, such as that of the City of Baltimore, flying autonomous drones over the metropolitan area and recording every waking movement of its citizenry in a 24/7 surveillance. Police also are able to utilize heat-sensing thermal imaging to now peer behind the wall of a residence in order to assess the number of party-goers that may be in violation of COVID-19 social distancing restrictions—a high-tech version of “stop and frisk.” GPS has given cops an edge by reviewing phone logs to determine exactly where a suspect may have traveled. The problem exists when investigators begin to review phone logs in an attempt to discover crimes where no suspicion of a crime had previously existed.

David McGuire, executive director of the ACLU, Connecticut suggests, “The biggest red flag for the ACLU is when the use of technology [leads] to arrest.” And Supreme Court Justice Sonia Sotomayor warns, “GPS monitoring ... may alter the relationship between citizens and government in a way that is inimical to a democratic society.”

The Constitution Project estimates that there are more than 30 million security cameras watching our every move. Big Brother’s eye in the sky and elsewhere could significantly intensify law enforcement’s vigilance and its thirst for control over the masses. Where will it stop?

Citizens’ rights groups have been fighting back. The latest apps include a tracking capability that places protesters one step ahead of the anti-protest enforcers. The app, “Citizen,” which scans police communications, has soared in downloads over the previous month by 633%, and the app “Signal” provides protesters with encrypted messaging allowing them to communicate protest strategies without police eavesdropping. Life on the streets has become a high-tech game of cat and mouse.

Social Dominance Orientation

The ideology that informs the training of police to react in such situations is referred to as “Social Dominance Orientation (‘SDO’).” Harvard Law Review, as part of an extensive study on policing, introduced the concept of SDO in a 2018 White paper titled “Locking Up Our Own.” As part of the study, the authors offered their theory on the origin of this paradigm shift in culture. They write: “Although scholars typically describe SDO as an individual difference variable, empirical evidence suggests that it is also a group-based phenomenon.” In other words, where one is located in a particular social hierarchy partly determines one’s SDO. Members of high-status groups generally have a stronger SDO than members of low status groups. For example, men tend to have a higher SDO than women while Whites evidence a higher SDO than Blacks or Latinos. Similarly, “police officers evidence a stronger SDO than civilians, even after controlling for a range of other characteristics such as gender, social class, age and educational background,” the study suggested. “In addition,” the study continued, “people’s SDO increases when their sense of relative status in society is threatened.” Finally, “Police cultures and training are fundamentally hierarchical.... The criminal justice system is itself hierarchically ordered ... suspects at the bottom, police officers somewhere in the middle, and judges on top.”

It is not difficult to see how SDO plays out in police confrontations with suspects, particularly when there exists an element of racial and/or economic tension or disparity. Police, White or minority, often develop an “us-versus-them” mentality in most public interactions. This is often apparent in the off-handed comments that are discovered on an officer’s personal Facebook page or over the radio with the intention of inciting a reaction from fellow officers. These superior or “top dog” attitudes are evident in many settings – as police prepare to engage in a raid, after successful busts, or in a prison setting where social dominance by guards often leads to bullying, humiliation, or outright aggression against a prisoner.

Police protocols and police training are often designed to engender a culture of social dominance. Training requires that officers take immediate command and control over every situation, and a failure to do so could send a message of vulnerability and weakness regardless of the situation. According to Harvard Business Review in their 2018 study “Policing,” the report suggests, “Although not as robust as that of White officers, Black officers typically evidence relatively high levels of SDO.”

There are serious problems with this social dominance principle, problems that go beyond individual implicit racial bias and which speak to the macro-level of social hierarchy or “top dog” status. In “Trust And Law Abidingness: A Proactive Model Of Social Regulation,” 81 B.U.L. Rev. 361 (2001), author Tom R. Tyler states: “By approaching people from a dominant perspective, police officers encourage resistance and defiance, create hostility and increase the likelihood that confrontation will escalate into struggles over dominance that are based on force.”

This is exactly how the Rayshard Brooks incident in a Wendy’s parking lot in Atlanta played out. The officer, thwarted in his attempt to restrict Brooks, and only after a peaceful and seemingly cordial interaction that lasted some forty-six minutes, was pushed to use deadly force after Brooks commandeered the officer’s Taser. Losing a weapon, psychologists suggest, is tantamount to a total loss of command and virility, an emasculation of sorts. Officers who rely on proper training and protocols, and who may lose composure and panic, often find themselves faced with a potentially lethal decision. At the moment Brooks snatched the Taser from the officer, SDO theorists suggest that the suspect challenged the social dominance of that officer, implicit racial bias then became a secondary component.

Even in the streets, police brutality was often directed at the media and likely as a condition of “social dominance.” As the world watched on live television, police aggressively grabbed and arrested CNN’s Omar Jimenez in a show of authority. Photo journalist Linda Tirado lost an eye when an officer aimed and fired a rubber bullet directly at her as she reported. Other journalists displaying obvious identification badges and camera crews were also the subject of police attacks. Australia Channel 7’s Amelia Brace and her cameraman, Tim Myers, were targeted during the Lafayette Park incident involving President Trump’s photo op. Myers was gut-punched and hit in the face by an officer knocking his camera to the ground, and both were shot with rubber bullets. Violently targeting and attacking the press would seem only to be an example of “force of power,” rather than “rule of law.”

Institutional Intervention

Post George Floyd and Rayshard Brooks, the first institutional step, and many thought it long overdue, was to charge the officers involved with murder. In the days that followed the incident in front of that now famous Minneapolis convenience store, cops who used excessive force against protesters were eventually suspended or removed from active duty. These are the first signals of true change motivated by public outrage. But can the momentum for real change be sustained?

Congress, in all its fallibility, has targeted policing for reform. The deeper hierarchical problems in the legal system however, are being ignored. Implicit racial bias is not the only issue. In fact, it may only be the tip of the iceberg, but lawmakers are zeroing in on this topic because it is political and popular. Another example is the flawed and impotent First Step Act legislation that places the onus of prison reform on the prison system itself rather than on the courts where the true power base resides. This legislation proposed by the Trump administration seemed to have been a rallying cry for votes but failed to accomplish any meaningful change in the grander scope of prison and sentencing reform.

As the Rev. Raphael Warnock noted on the eve of Rayshard Brooks’ funeral, “Wall Streeters and bankers gambled brazenly with millions of investors’ dollars, nearly destroyed the global economy in 2008, and plunged thousands into bankruptcy, joblessness and misery. They were let off by the courts and later even rewarded with hefty bonuses. George Floyd tried to pass a counterfeit $20 bill. Rayshard Brooks fell asleep in a take-out line at Wendy’s. Their punishment was death.” This commentary begs the question: Is the issue racism or shark-tank predatory capitalism, or is it an unfortunate mix of both?

America is beginning to realize that abusive policing is the inevitable gateway to mass incarceration. Both George Floyd and Rayshard Brooks were well acquainted with the system. Both had prison records. Brooks spoke about his experience in an online video he made in February as part of a post-conviction support meeting. His tone and his words are heartbreaking, eerily prophetic of his fate, especially when he describes how nearly impossible it is for felons to find their way back into a productive life or even a simple and peaceful one. Few will disagree that Brooks’ attempt to resist arrest was wrong, but few have given much thought to what Brooks was attempting to run from. After all, he initially offered peacefully and cooperatively to walk home or get a ride home, yet officers continued to prod and poke and push until Brooks was convinced he would surely face a return to prison or worse. He ended up with worse.

“This is much bigger than the police,” Warnock pointed out at Brooks’ funeral. “[Our legal] system cries out for renewal and reform.” His voice echoed through the historic Ebenezer Baptist Church in Atlanta from the very same pulpit behind which Martin Luther King, Jr., once held forth. It seems like the more things change, the more they stay the same. Warnock asked the congregation to consider why Brooks and Floyd had resisted arrest. The answer is easy. Both men were struggling to get by, struggling to stay above water and out of the fray. Confronted with an uncaring and punitive system and a brand of policing that cares nothing for the immediate results of its actions, but merely fulfills a bureaucratic, soul-less function, the human impulse in both of these incidents was to struggle, to run. This was the same impulse that drove slaves in the old South to flee North, to escape from dehumanization and punishment, an impulse that recurs in many of these botched confrontations. Whether the suspect is Black or White, challenging the SDO of the officer who seeks an arrest at any cost may result in a lethal outcome.

From Public Servant to Public Enemy

While eliminating chokeholds and other invasive and brutal techniques and denouncing processes like no-knock warrants and raids, stop and frisk laws, or investigatory detentions are a step in the right direction, we are only attacking the symptom rather than the disease. There is now movement in many communities to wholly defund the police—a radical solution. Others call for increased funding to go toward outlandish weaponry that should truly remain on the battlefield. Seattle’s mayor has taken an initial step by introducing an immediate budget cut exceeding $20 million. The real question here is whether we need to cut budgets or increase budgets for more extensive and appropriate training.

In a recent study by CNN, it was determined that barbers in North Carolina are required to complete 1,521 hours of training to earn a license, while police in that same state are required to complete only 620 hours. In Florida, interior designers can only be licensed after 1,760 hours of training, yet police in Florida need only 770 hours. And in Louisiana, a manicurist may practice after 500 hours of training, yet you can become a Louisiana police officer by completing a 360-hour course.

The city of Camden, New Jersey, took a different tack. In 2012, this city had the fifth highest murder rate. The following year, the city disbanded its 141-year-old police department. It restructured the demographic representation into a county-wide sheriff-style policing entity. It was able to then retain many of the original police officers but under a more localized representation. Camden is unique in that 93 percent of its population are minorities, according to Politico.com.

The result proved to be a success. Camden was able to eventually grow back a police force from 175 to 400 officers. New protocols were implemented for sensitivity training, de-escalation, and racial bias.

According to current Police Chief Scott Thompson, “An officer would no longer be an ‘arbitrary decider’ of what is right or wrong.” Scott goes on to suggest, “[They become] a facilitator and a convener.”

Former New Jersey Governor Chris Christie opined, “The most effective way to [change underlying principles] is to start over.” Their greatest tool for improvement involved an intensive review process in which watch commanders review body-cam footage alongside internal affairs and officers after every significant arrest.

The process seems to be working. In 2014, prior to the restructure, citizens in Camden filed 65 excessive-force complaints; last year there were only three.

Another crucial aspect of policing reform that must be addressed is the immense power of police unions. In many communities, these powerful unions overprotect officers who violate procedural protocols. They supply high-priced lawyers after violent incidents and generally act as an impregnable shield to keep officers from suspension, dismissal, or prison.

American society seems to be addicted to heavy-handed policing. This is a danger to a nation founded on personal freedom and personal responsibility. It threatens the very fabric of the Constitution.

As the Rev. Warnock stated at Rayshard Brooks’ funeral, echoing the words of Martin Luther King, Jr.: “We’re tied in a single garment of destiny.” All races, all ethnicities, and all people of every creed, religion, or sexual orientation make the U.S. a truly pluralistic society. Our attempt to morally and ideologically homogenize it will come to failure.

In these unsettled times, we are tempted to reduce our problems to simple explanations, to ascribe all the ills in our legal and policing systems to racism. We believe that renaming streets and buildings and tearing down monuments will change everything. But until we change our narrow view of ourselves, nothing crucial will change. It may be accurate, in exploring the history of policing for example, to better comprehend the roots of our current problems in the policing of previous centuries when one of the tasks of law officers was to track down runaway slaves or to keep people from voting or drinking. But these historic facts taken out of historical context do not fully explain the recent punitive mindset of our society. Nor do they consider the singular once-in-a-lifetime effect of a global pandemic. Nor do they present a comprehensive understanding of larger moral, religious, and economic factors. Many racial and ethnic groups have been exploited, dehumanized, and murdered throughout world history. To demonize America for what has been a historic human failure will not allow us to move forward. History cannot and should not be re-written, even in its brutal and ugly truth. It is all that we have upon which to learn, grow, and move forward.

The gathering of statistics, which shock and anger us, cannot be swept under the rug. Much like the proverbial frog in a slow-boiling pot, we as a society have permitted the system to turn up the heat of law enforcement by, say, three degrees each year over the previous 90 years. We now find ourselves 180 degrees from where the first began. The world of Andy of Mayberry and good cop “Joe Friday” seems long gone. We need to wake up to our present reality and begin to turn down the heat.

Some claim implicit racial bias, others decry militarization, and yet others point to a culture of violence and desensitization fostered by social media is the cause of our current policing predicament. Each is merely a symptom of a systemic cancer. We as a society are to blame. After all, we are the police, we are the courts, we are the laws. We are both the protesters and the system, and incredibly even under the siege of a deadly pandemic, we are still breathing.

With each breath, we may now begin to regain our composure, to renew our values, to resist our temptation for cliché solutions. We must abandon our personal agenda and seek a greater change that may benefit all individuals. In this way, we will honor the memory of George Floyd and all the countless victims of oppressive policing. Only then will we redirect our course from social dominance over some to social justice for all. 

 

Michael Fortino is an acclaimed author and keynote speaker on Leadership and Change, having spoken before audiences as large as 14,000. Over his career, he appeared on the front page of The Wall Street Journal, USA Today, and in countless publications. Fortino was featured on Good Morning America and The Tonight Show, and he has interviewed two U.S. Presidents.

 

 

 

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