Are police the key to public safety?: the case of the unhoused

• Author: Barry Friedman
• Position: Jacob D. Fuchsberg Professor of Law, Affiliated Professor of Politics, and Director of the Policing Project, New York University School of Law
• Pages: 1597-1641

LECTURE

ARE POLICE THE KEY TO PUBLIC SAFETY?: THE CASE OF THE

UNHOUSED

Barry Friedman*

ABSTRACT

We as a nation have to think deeply about what it means for a community to be

safe, and what role the police play (or do not play) in achieving that safety. We

have conflated, if not entirely confused, two very different things. One is the

desire to be safe, and how society can assist with safety, even for the most margi-

nalized or least well-off among us. The other is the role of the police. Contrary to

what many seem to think, the police are not a one-size-fits-all provider of public

safety.

In this paper, I discuss this issue in the context of one of the most intractable

and challenging problems in the United States: that of unhoused individuals living

among us. Rather than doing what we are able to do to help them find their way to

safety, we criminalize their conduct. This does not solve the problem—indeed it

creates a revolving door of street to jail to street. We reach this result because we

have failed to utilize cost-benefit analysis around public safety issues and are espe-

cially neglectful of social costs, and because we also have failed to have a candid

conversation about what public safety means and how to achieve it. This paper

suggests alternative approaches to public safety, instead of relying so heavily on

the police. One of them is an untried idea of creating an entirely new set of first

responders—individuals holistically trained, including in social services, media-

tion, and much else—to deal effectively with social needs they encounter on the

streets.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1598

I. POLICING: AN ODYSSEY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1601

II. HOMELESSNESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1606

A. What Police Do . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1607

* Jacob D. Fuchsberg Professor of Law, Affiliated Professor of Politics, and Director of the Policing Project,

New York University School of Law. This Article was the basis for a lecture at Arizona State University School

of Law delivered on November 15, 2021. I am grateful to the Academy for Justice at ASU for the invitation to

speak, and for the help I received along the way. Special thanks to the commentators, Brandon del Pozo, Trevor

Gardner, Ben McJunkin, Maria Ponomarenko, for participating, and for input. My research assistants rendered

much valuable assistance: Tim Duncheon, Anaika Miller, Marigny Nevitt, Yelena Niazyan. This work was

produced with generous support of the Filomen D’Agostino and Max E. Greenberg Research Fund at New York

University School of Law.

1597

B. The Unhoused Population . . . . . . . . . . . . . . . . . . . . . . . . . . 1608

III. CRIMINALIZATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1612

IV. THE POLICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1618

V. COST-BENEFIT ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1624

VI. PUBLIC SAFETY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1630

A. The Duty of Protection. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1630

B. An Affirmative Obligation to Help the Homeless . . . . . . . . . . 1634

VII. TAKEAWAYS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1637

A. The Mistakes We Make . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1637

B. Transforming First Response . . . . . . . . . . . . . . . . . . . . . . . . 1638

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1640

INTRODUCTION

The entire world has lived through a year or more of crises. The pandemic

caused all of us to interrupt life as we knew it to fight off a highly contagious and

deadly disease. Dealing with the pandemic took our eye off another crisis that is

equally dire and catching up to us all too quickly: the change in the planet’s cli-

mate, which promises great displacement of masses of people and ultimately may

threaten our very existence as a species.

Here in the United States, we have endured yet another crisis: over-policing and

public safety. Concerns about policing have been with us for decades.

1

These con-

cerns took on a certain urgency after Michael Brown was killed in Ferguson,

Missouri, and in the wake of other high-profile police shootings, particularly those

involving Black and Brown individuals.

2

Then, relatively early in the pandemic,

Officer Derek Chauvin of the Minneapolis Police Department kept a knee on the

back of George Floyd as Floyd pleaded for his life, could not breathe, and ulti-

mately died.

3

Floyd’s killing was callous; many officers stood nearby as it hap-

pened, a crowd watched it all on the street and some videotaped it for the public to

see.

4

The result was months of protests, calls to defund or even abolish the police,

and intense discussions over the future of policing and the nature of public safety.

5

1. See generally Katie Nodjimbadem, The Long, Painful History of Police Brutality in the U.S., SMITHSONIAN

MAG. (May 29, 2020), https://www.smithsonianmag.com/smithsonian-institution/long-painful-history-police-

brutality-in-the-us-180964098/; Linda Poon & Marie Patino, CityLab University: A Timeline of U.S. Police

Protests, BLOOMBERG CITYLAB (Aug. 28, 2020, 4:57 PM), https://www.bloomberg.com/news/articles/2020-06-

09/a-history-of-protests-against-police-brutality (providing an overview of significant protests against police

brutality from the 1990s through 2020).

2. See, e.g., Gene Demby, The Butterfly Effects of Ferguson, NPR (Aug. 11, 2016, 3:00 PM), https://www.npr.

org/sections/codeswitch/2016/08/11/489494015/the-butterfly-effects-of-ferguson (detailing how protests against

police violence, and media coverage of these protests, changed after Michael Brown was shot and killed).

3. See Evan Hill, Ainara Tiefentha

¨ler, Christiaan Triebert, Drew Jordan, Haley Willis & Robin Stein, How

George Floyd Was Killed in Police Custody, N.Y. TIMES (Sept. 7, 2021), https://www.nytimes.com/2020/05/31/

us/george-floyd-investigation.html (describing the circumstances leading up to George Floyd’s murder).

4. See id.

5. See Derrick Bryson Taylor, George Floyd Protests: A Timeline, N.Y. TIMES (Nov. 5, 2021), https://www.

nytimes.com/article/george-floyd-protests-timeline.html; BLACK LIVES MATTER, 2020 IMPACT REPORT 32

1598 AMERICAN CRIMINAL LAW REVIEW [Vol. 59:1597

Just as it seemed that real reform of policing might happen, and even in an

enduring way, gun violence and the homicide rate shot up, particularly in

America’s inner cities.

6

Fear of crime became a leading news story, as it had not

been since the end of the 1960s.

7

Suddenly, the debate began to shift yet again,

with many calling for the sort of get-tough measures that led policing into crisis in

the first place. People in the United States now are experiencing whiplash over the

subject.

8

The quickly swinging pendulum—from getting policing under control, to

getting violence under control—has left many people unsure what to think. It is the

nature of pendulums that they swing, and sometimes to extremes; with regard to

the public debate over policing (as with perhaps much else) that is unfortunate.

There are answers to the questions that plague us, and they are not going to be

found by constantly changing our approach in response to recent events. Rather,

the issues we face require study, reflection, following the evidence where it leads,

and perhaps a willingness to think outside the box.

We as a nation have to think deeply about what it means for a community to be

safe and what role the police play (or do not play) in achieving that safety. We

have conflated, if not entirely confused, two very different things. One is the desire

to be safe, and how society can assist with safety, even for the most marginalized

or least well-off among us. The other is the role of the police. Contrary to what

many seem to think, the police are not a one-size-fits-all provider of public safety.

Rather, police have, and always have had, a very specific set of roles: maintaining

order, keeping the peace, and enforcing the law.

9

Whatever one may think about

(2021), https://blacklivesmatter.com/2020-impact-report/ (“Our ultimate goal is abolition. The system cannot be

reformed.”); id. at 35 (“[W]hen George Floyd was murdered, . . . it was a breaking point for people everywhere.

. . . In times of stress and hardship, we turned to each other. Because we know that we keep us safe.”).

6. Neil MacFarquhar, With Homicides Rising, Cities Brace for a Violent Summer, N.Y. TIMES (June 1, 2021),

https://www.nytimes.com/2021/06/01/us/shootings-in-us.html (noting that homicide rates in large cities across

the country increased an average of thirty percent in 2020 and an additional twenty-four percent at the beginning

of 2021).

7. See Susan Page & Ella Lee, Exclusive: In Poll, Only 1 in 5 Say Police Treat People Equally Even as

Worries About Crime Surge, USA TODAY (July 8, 2021, 7:08 AM), https://www.usatoday.com/story/news/

politics/2021/07/08/poll-worries-crime-most-say-police-dont-treat-all-equally/7880911002/ (finding that crime

was the top concern among poll respondents); BARRY FRIEDMAN, THE WILL OF THE PEOPLE: HOW PUBLIC

OPINION HAS INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION 276 (2009)

(describing how the public’s concern about rising crime paved the way for Richard Nixon’s presidential win in

1968); PATRICK SHARKEY, UNEASY PEACE: THE GREAT CRIME DECLINE, THE RENEWAL OF CITY LIFE, AND THE

NEXT WAR ON VIOLENCE 123–25 (2018) (noting that “public anxiety about urban violence” in the 1960s led

President Lyndon Johnson to toughen his stance on crime, demonstrated by his signing of the Law Enforcement

Assistance Act in 1965 and his refusal to acknowledge the Kerner Commission’s report about causes of urban

unrest).

8. See Page & Lee, supra note 7 (finding that while crime was the top concern among poll respondents, the

expected call for tough-on-crime policies “has been tempered by broad concerns about law enforcement tactics

and the equality of the criminal justice system”).

9. See ALBERT J. REISS, JR., THE POLICE AND THE PUBLIC 17 (1971) (“Though superficially their role is to

preserve the peace by coping with any individuals in the large aggregation who violate laws, they must be

prepared to restore order as well.”); see also EGON BITTNER, THE FUNCTIONS OF THE POLICE IN MODERN SOCIETY

36 (1970) (describing the capacity to use force as the core of the police role).

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