No Chance: The Secret of Police, or the Violence of Discretion.

AuthorWall, Tyler

The morning of April 7, 2018, police in Roswell, Georgia, an Atlanta suburb, stopped a speeding motorist, Sarah Webb. Just one of the innumerable stops of its kind made by US police on any given day, this instance gained national media attention when bodycam footage showed two of the responding police agents--Courtney Brown and Kris tee Wilson--using a cell phone "coin flip" application to decide whether or not to arrest Webb for reckless driving. On the video, Wilson is heard muttering, "A (arrest) head, R (release) tail," and announces moments later the code for arrest: "23." Her partner Brown responds, laughing: "Michael Jordan? Alright, so I've got too fast for conditions, reckless ..." (Darnell 2018). Scolded for putting "a lot of people's lives in jeopardy," placed in handcuffs, and ushered to the back of a patrol car, the video shows Webb, a low-waged white woman working in retail, erupt into tears, plead for leniency, and claim that she was speeding because she was late for work and that an arrest would likely cause the loss of her job. Unaware that her fate had been decided by a virtual coin flip until after the bodycam footage become public, Webb called the experience disgusting and derided the Roswell Police Department for gross negligence and recklessness. Public outcry followed, forcing city leaders to respond.

In a written press release, Roswell Police Chief Rusty Grant seemed to agree with Webb stating that he was "appalled that any law enforcement officer would trivialize the decision-making process of something as important as the arrest of a person" (Horton 2018). Gary Palmer, Roswell City Administrator, responded in kind, claiming to be "stunned by the lack of professionalism and compassion" displayed by Brown and Wilson, promising that "those who do not share these values and meet these community standards should be, and will be, removed from service" (Horton 2018). Three months after the stop and less than two weeks after it made national news, Grant fired Brown and Wilson. The dismissal of the two coin flipping officers was, of course, an attempt to end the controversy by demonstrating police as a publicly accountable, reflexive, and legitimate institution, while at the same time displacing the problems of police power onto a couple proverbial "bad apples."

The novelty of the coin flip and the casual manner in which it was employed seemed to some to be a particularly noxious and hence inherently newsworthy example of unchecked police discretion. Even for their most steadfast supporters, the idea that police could leave an arrest wholly to chance flies in the face of "community values, standards" and liberal commonsense understandings of "law enforcement," which assume such decisions are always firmly grounded in the training, experience, and ethics of individual officers and the legal protocols and administrative guidelines that govern the profession as a whole. For those who see the police as the indispensable cornerstone of liberal social order, no duty, even their most mundane, must be left to chance, and to do so would be to abdicate or necessarily abandon their solemn contract with the community. Because it seemed to contradict or evacuate policing's stated raison d'etre, the arrest of Sara Webb, a working-class white woman speeding to her low wage retail job, drew the attention of national news media and the outrage of onlookers. Occurring at a time when the movement for Black lives had forced the issue of police violence again into the realm of national debate (see Kurti, this volume), for some, that Webb's arrest was marred by novelty rather than lethality punctuated claims of policing's racial disparity with frustrating clarity (see Brucato and Jackson, both in this volume).

But what if the chance offered Webb by the two officers' coin flip, absurd as it seems, was not an unprofessional, let alone radical, departure from the principles that underlie routine police discretion? Could it be that there is in fact no chance built into the application of police discretion? In other words, might the coin flip expose the public secret of the inherent violence of police discretion? Following Michael Taussig's (1999, 5) understanding of a public secret as "that which is generally known, but cannot be articulated," our suggestion here is that Webb's case, whatever the outcome, was always already pregnant with the violence of liberal order. For Taussig (1999), the public secret provides the foundational basis of social order, as it names that which is widely known but nevertheless hidden, concealed, or disowned as too taboo or horrifying to acknowledge directly. The implication is that a public secret is always a complex affair that by its very nature blurs concealment with revelation, the implicit with the explicit, unwitting recognition with willful misrecognition, and open denial with blind acceptance. Taussig reminds us that Elias Canetti (1984, 290) once provocatively suggested that "secrecy lies at the very core of power," a statement that in our view applies directly to a critique of police. Our intention then is to drag into the open the secret violence of discretion that lies at the festering core of the police power as sovereign expression (see also Seri, this volume).

Such a view of Webb's arrest might bring into plain view a certain hidden truth about the discretionary, and always racialized and patriarchal, prerogatives of police in liberal democracy. By this we do not mean to suggest the secret exposed by the coin flip is that the patterns and practices of police are wholly governed by chance, as quite often discretion symptomatically reveals, in the form of outright enmity and racialized animus, the very worst of human prejudice. Conceivably though, if it were used to determine every single police decision, a coin flip might in fact introduce enough random chance to perhaps reduce disparity. In his book Against Prediction: Profiling, Policing, and Punishing in an Actuarial Age, Bernard Harcourt (2008) suggests just this, arguing that the actuarial methods used to allocate police resources invariably define so-called hot spots among those spaces already overpoliced. In order to neutralize the built-in biases of actuarial techniques and even routine discretion, Harcourt imagines, for instance, a fully randomized patrol where police would select the third or fourth speeding motorist for contact. Under these conditions, police discretion determined by an impartial randomizer might effectively reduce the human prejudices built into the application of discretionary power.

While Harcourt and others speculate on the utility of pure chance, various chapters of the Democratic Socialists of America (DSA) have launched a pilot program designed to eliminate or reduce the chance that participants will come in contact with the police: "If you're a person of color, the physical danger of a traffic stop is ever present. If you're undocumented, it's possible that a traffic stop could dramatically disrupt your life, even lead to deportation." (1) Citing the deaths of Walter Scott, who was initially stopped by police for malfunctioning brake lights, and Philando Castile, who was pulled over 52 times before Officer Jeronimo Yanez shot and killed him, DSA's Gimme a Brake (Light) clinics provide free brake light maintenance to anyone in need, thereby eliminating a reason for police to initiate contact with motorists. (2) Clearly the program's founders recognize the ever present risk of police, particularly for Black and Brown people, and have pursued this seemingly trivial yet powerful avenue to mitigate the chance of police violence. Notwithstanding the ways this campaign creates opportunities for political education and the building of political community, it nevertheless seems structured by a certain misreading of the arbitrary dynamics of all police discretion: that even with functioning brake lights cops on patrol have an unlimited number of justifications or excuses for making a stop. The secret of police is essentially out in the open, circulating as folk wisdom: "the cops can pull you over for anything."

We speculate, then, on the utility of chance not to endorse it as a potential reform, but to demonstrate how the outrage over Webb's arrest is misplaced for the subtle ways it normalizes the police secret that police power is built into liberal democracy as a fundamentally arbitrary, and violent, prerogative power meant to be unaccountable to law. It is here that Mark Neocleous's (2021) A Critical Theory of Police Power, especially its final chapter, becomes crucial for theorizing police discretion as administrative power, which, by design, is unaccountable to law. Taking inspiration from Walter Benjamin's (1921/1978) "Critique of Violence," Neocleous suggests that the logic of discretion--the arbitrary power to act in and on the social world in the name of security and order--is the law of police. Discretion, for Neocleous, is the fink to understanding the police power as a key site of political administration, where police are governed less by the rule of law and more by the administrative prerogatives of transactional order building. The administrative power of police discretion, as Neocleous understands it, bears some resemblance to what Michael Lipsky (2010,xi) calls "street-level bureaucracy," where police, among other public service actors, "have wide discretion over the dispensation...

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