DISAGGREGATING THE POLICING FUNCTION.
INTRODUCTION 928 I. THE HARM OF THE ONE-SIZE-FITS-ALL COP 934 A. The Direct Harms of Policing 935 B. Unaddressed Chronic Social Harms 939 C. The Harms of Underpolicing 942 II. DISAGGREGATING THE POLICING FUNCTION 944 A. The Mismatch Between the Constructed Cop and the Real Cop 945 1. The "Constructed" Cop of Force and Law 945 a. Cops as Crimefighters 945 b. Cops as Force 946 c. Recruiting Cops 946 d. Training Cops 946 e. Equipping Cops 948 2. The Actual Cop 948 a. The Use of Force 954 b. Enforcing the Law 954 3. The Mediator Cop 956 a. The Use of Force 956 b. Enforcing the Law 959 3. The Mediator Cop 963 4. The Social Worker Cop 965 5. The Traffic Cop 967 6. The Crime-Fighting, Law Enforcement Cop 970 7. The Proactive Cop 973 8. "Community" Police 977 III. REIMAGINING PUBLIC SAFETY 979 A. What Are the Police Doing Here ? Rethinking the Policing Agency 980 1. Training and Specialization 981 2. "Civilianization" and Specialization 982 B. What Are the Police Doing Here? Rethinking Government's Response to Social Problems 985 C. Policing as Triage and Emergency Medicine 991 D. Cost and Criminalization 994 CONCLUSION 997 APPENDIX A: NASHVILLE CURRICULUM SUMMARY (RAW DATA) 998 INTRODUCTION
The last few years have seen sustained attention to the harms of policing, and with good reason. Almost one thousand people are shot and killed by the police each year. (1) Countless more are subjected to lesser uses of force. (2) The police conduct countless pedestrian and traffic stops annually; far too many of the stops are pretextual or outright unconstitutional, and most are unproductive. (3) Policing imposes severe racial disparities, often an inevitable result of the tactics the police adopt. (4) One could go on.
Over the last decade or more, the primary response from advocates and scholars has been to seek to minimize or eliminate these harms. That is to say, tighten up the constitutional rules of police search and seizure, so fewer of them occur. (5) Loosen the fetters of qualified immunity, so cops can be sued for misconduct. (6) Favor criminal prosecutions of cops. (7) Have more Department of Justice investigations. (8) All are urged with the goal of ensuring that there are fewer stops, searches, uses of force, and arrests.
This Article takes a distinctly different approach. Rather than focus on regulating the harms that follow from policing, it urges us to dig deeper, to examine critically the policing function itself. To look not only at the symptoms, serious though they unquestionably are, but at the underlying problem or problems that generate them.
Until we look through the harms, to the core of policing, the best we can expect is incremental change. That is because harm is innate to policing. (9) Tightening up the rules on things like stops and arrests is not going to make them go away; at best it will reduce them. Nor is tightening up those rules going to be easy: because courts are loath to second-guess the decisions of officers, constitutional law affords the police enormous leeway. (10)
More centrally, when we focus primarily on the collateral harms of policing, we take our eyes off what ought to be the ultimate goal of society: public safety. Policing agencies like to say they are in the business of public safety. (11) The question we need to be asking is whether public safety is what we are getting. To be sure, at the least public safety must mean ensuring the safety of individuals from government. (12) But it also means things like being able to get to school during the day without worrying about gunfire, and having a secure place to sleep at night. It means being able to distinguish between a public health problem, and one that immediately and necessarily implicates the criminal law; mental illness, homelessness, and substance abuse are the former, not the latter. It includes having some confidence that when the police respond to a serious crime, they will not increase the trauma, will investigate it competently, and in some respectable number of cases actually will locate the perpetrator. (13) The broader goal of public safety is not going to be furthered by a strategy aimed primarily or solely on minimizing the collateral harms of policing.
Finally, if public safety is our aim--as it assuredly should be--then it is imperiled as much by the things the police fail to do, as by the things they do (properly or otherwise); acts of omission, rather than commission. A strategy of regulating and minimizing harm may get at the latter, but rarely at the former. Failing to protect certain individuals or neighborhoods is a problem equal in scope to over-policing, and it is addressed glancingly at best by harm reduction strategies. (14)
If we truly want to achieve public safety, we need to look beyond minimizing the harms of policing and focus on what it is exactly the police do daily, asking whether the police are the institution best suited to the panoply of societal needs they confront regularly. Policing in the United States tends to be a one-size-fits-all endeavor that puts primacy on what is unique about the police--using force and law--to achieve "public safety." Force and law, though, are an odd match, at best, for the actual problems the police are called out daily to address. The police themselves recognize this. Former Dallas Police Chief (and current Superintendent of the Chicago Police) David Brown put it this way:
We're asking cops to do too much in this country. ... We are. Every societal failure, we put it off on the cops to solve. Not enough mental health funding, let the cops handle it. ... Here in Dallas we got a loose dog problem; let's have the cops chase loose dogs. Schools fail, let's give it to the cops. ... That's too much to ask. Policing was never meant to solve all those problems. (15) Where Brown, and other police, get it wrong, though, is that these sorts of social problems are and always have been what police are called upon to do every day. (16) The question we need to explore is whether policing as presently conceived is up to it, or if some other approach would be better.
To figure out how best to achieve public safety in today's world, and to structure the role of police accordingly, we need to disaggregate the policing function. We have to take apart and look critically at the various pieces of what cops actually are called to do on a daily basis and ask in each instance what skill set is necessary to perform that function well. Even the core function of responding to crime involves other tasks--from victim counseling to collecting forensic evidence--for which patrol officers are not necessarily suited. (17)
In disaggregating the policing function, we need to keep asking three questions--all similar in appearance, but each emphasizing different things we need to know to best utilize (or not utilize) the police to achieve public safety:
What is a cop DOING here? What is it exactly that the police are being asked to do in any given situation? Have officers been trained adequately to do it?
What is a COP doing here} Are the police even the correct societal actor to be responding to this problem? Is having the police respond to this problem--as opposed to some other actor--making things better or worse?
What is a cop doing HERE} Finally, we need to look at and understand the situational aspects of what a police officer confronts. Cops get tossed into all kinds of rotten circumstances, regularly encountering people at their worst moment. (18) They patrol some of the toughest and poorest neighborhoods in the nation. We should be asking what gave rise to the underlying situations the police encounter and questioning whether those circumstances are something society could or should be addressing in some way other than with the police.
If public safety truly is our goal, we need to look for better ways to get there than relying so heavily on the purveyors of force and law. To be sure, many situations that are not solved by force and law still may require the presence of force or the threat of punishment to get them under control. Force and law are the "or else" of society, and they have their place. (19) But if optimal outcomes are our goal, we need to look for other approaches. That is the task here: to look at the problems police confront daily, and ask if better outcomes would result from addressing them in some way other than simply with policing agencies as presently constituted.
Between the time this article was written, and the time it came into print, the questions it asks reached the very top of the national agenda. In March of 2020, Breonna Taylor was killed in her apartment in Louisville, Kentucky, by a SWAT raid gone very bad; in May of that year, George Floyd died at the hands of the Minneapolis police. They were just two of many Black people killed by the police, but following George Floyd's death in particular, protests broke out throughout the country that have not died down fully yet some four months later. One of the primary reforms demanded by activists and protestors was to "defund" the police, which is to say take financial resources from the police and devote them to the real needs of struggling communities. (20) Since that time, activists, but also advocates, government officials, funders, and many more have begun to explore reducing the footprint of the police, on precisely the grounds offered here. (21) This Article, seemingly a pipe dream of sorts at the time it originally was written, now provides a theoretical and empirical basis for change that many people believe is urgently needed.
Part I of this Article explores the full breadth of harm caused by policing. Section LA focuses on the sorts of harms--the stops, the searches, the arrests--that give rise to harm-reduction strategies. Section LB then goes on to describe an entirely different and additional set of harms caused by our over-reliance on the police: the failure to resolve chronic social...
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