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by Peter Moskos

December 31, 2014

Blue Flu (II): Arrest "only when you need to"

Conor Friedersdorf has a excellent piece in The Atlantic, "The NYPD's Insubordination—and Why the Right Should Oppose It." [And just for the record I did scoop the New York Post, albeit only be a few hours.] There's lot here that doesn't fit in our normal political divide. And I love that cognitive dissonance!

You've got union blue-collar workers, and the left that hate them. You've got union blue-collar workers, and the right says that says they can do no wrong. You've got an elected mayor cops (many non-residents) are saying doesn't represent the people of New York City (De-legitimize the mayor -- even though De Blasio got more votes than Bloomberg ever did). And you've a police union that other unions (mine included) do not like and insist is not a real union (de-legitimize the workers' voice). You've got some cops who would love to see crime go up, just to prove their anti-liberal political point. And these same cops aren't working too hard in the name of safety. Even though the worst thing for cop safety would be an increase in crime.

I love it when my head hurts!

And then you've got the Zero Tolerance vs. Broken Windows angle. This is important and will probably get lost in the shuffle. But right now the police are doing exactly what opponents of police (though they would prefer to be known as supporters of police reform...) have been advocating for years: having police do less. Because if you see police as overly aggressive tools (or, more extremely, state-sponsored tools of oppression) who do more harm than good, you welcome a police slowdown. If you think police have little or nothing to do with crime -- and many academics, generally those who hate Broken Windows, still believe this (it all goes back to root causes and society) -- there's no downside to fewer arrests and tickets. (Though I don't want to be too dismissive about fewer arrests and tickets. I'm all for police discretion and more informal enforcement of public order.)

A lot of what the NYPD has been doing the past decade or so is Zero Tolerance: write tickets, stop people, arrest people, no discretion. A lot of what police need to do is Broken Windows: problem solve, identify quality of life issues, reduce public fear, maintain public order, cite and arrest as a last resort.

If you, like me, think police matter, then you want the good without the bad. It's not easy, but it's certainly possible. You want police maintaining public order without stopping people without good causes. You want police discretion without police quotas (also known as "productivity goals"). You actually don't care so much about response time and are more interested in anything that gets police out of cars and dealing with the public -- good people and criminals alike.

So if cops stop making arrests that aren't absolutely necessary. That's fine with me. Arrests should never be a measure of police productivity! But if police stop policing.... well, that would be bad.

From Friedersdorf's piece, here's Scott Shackford from Reason.com:
Well, we can only hope the NYPD unions and de Blasio settle their differences soon so that the police can go back to arresting people for reasons other than "when they have to." The NYPD’s failure to arrest and cite people will also end up costing the city huge amounts of money that it won’t be able to seize from its citizens, which is likely the real point. That’s the "punishment" for the de Blasio administration for not supporting them. One has to wonder if they even understand, or care, that their "work stoppage" is giving police state critics exactly what they want-- less harsh enforcement of the city’s laws.
And here is Friedersdorf's take on that:
That's how some policing reformers see it. Others, like me, don't object to strictly enforcing laws against, say, public urination, traffic violations, or illegal parking, but would love it if the NYPD stopped frisking innocents without probable cause or even reasonable suspicion, needlessly escalating encounters with civilians, and (especially) killing unarmed people, goals that are perfectly compatible with data-driven policing that targets actual disorder. Keep squeegee men at bay–and leave innocent black and Hispanic men alone.
That last sentence there is good. And Friedersdorf concludes (read the whole thing):
The right should greet [pro-police rallies] with the skepticism they'd typically summon for a rally on behalf of government workers as they seek higher pay, new work rules, and more generous benefits. What's unfolding in New York City is, at its core, a public-employee union using overheated rhetoric and emotional appeals to rile public employees into insubordination. The implied threat to the city's elected leadership and electorate is clear: cede leverage to the police in the course of negotiating labor agreements or risk an armed, organized army rebelling against civilian control. Such tactics would infuriate the right if deployed by any bureaucracy save law enforcement opposing a left-of-center mayor.

It ought to infuriate them now. Instead, too many are permitting themselves to be baited into viewing discord in New York City through the distorting lens of the culture war, so much so that Al Sharpton's name keeps coming up as if he's at the center of all this. Poppycock. Credit savvy police union misdirection. They're turning conservatives into their useful idiots. If the NYPD succeeds in bullying De Blasio into submission, the most likely consequence will be a labor contract that cedes too much to union negotiators, whether unsustainable pensions of the sort that plague local finances all over the U.S., work rules that prevent police commanders from running the department efficiently, or arbitration rules that prevent the worst cops from being fired. Meanwhile, Al Sharpton will be fine no matter what happens. Will the law-and-order right remain blinded by tribalism or grasp the real stakes before it's too late? Look to National Review and City Journal before laying odds.

14 comments:

Matt said...

We need to have a discussion regarding the realities of actually enforcing low level offensive such as public urination and selling untaxed cigarettes. I completely understand a hesitancy to enforce such laws because there is evidence that the officer will not be supported by the political machine nor the media if the contact turns violent.

What is missing on the part of politicians and would-be reformers is an acknowledgement that if while attempting to enforce a low level offense the offender refuses to comply police are absolutely expected to respond appropriately, to include reasonable force, to effect the arrest. The problem is that I keep hearing that Garner was killed for selling untaxed cigarettes. This narrative is allowed to go unchallenged by pretty much everyone other than a few who are dismissed as "badge lickers."

The mayor and reformers could maintain a line with mainstream officers while pushing for change and expressing disagreement with the grand jury with something like this: Eric Garner was a repeat offender who refused to comply with laws that I/we have directed our officers to enforce. When he refused to comply with the arrest, I/we fully expect our officers to use reasonable force to effect that arrest. That is why we hire, train, and pay police officers. What we do not train our officers to do, however, is use a tactic that is classified as deadly force on a person who was not posing a deadly threat to any citizen or officer.

I would like to think that this was not said due to oversight, misunderstanding, or the lack of it producing good sound bites. My fear, however, is that this was not said because the politicians and media actually do not believe that force is needed to effect arrests in any but the most extreme and rare situation for extremely violent offenses. If so, we really need the discussion; we need to talk about what it would look like to have citizens know that officers cannot use force to effect minor offenses.

Peter Moskos said...

That's really well said.

Adam said...

I agree; well said, Matt. What do you think of this Washington Post article, which argues that the rules of engagement should be changed so that police officers cannot use force to effect arrests for minor offenses?

As for the work slowdown, I think it’s childish, but part of me hopes it keeps up for a few months, if only because it would serve as a valuable natural experiment. I think proactive patrol plays a large role in keeping crime rates down, but what if I'm wrong? Wouldn't it be nice to know?

And Peter, did you notice anything about the picture they chose for the Atlantic article? See how many of the Lord Baltimore "fisherman & farmer" shields you can spot in the lower left hand corner. Those are all Baltimore City cops. The one in the white honor guard hat is homicide detective Al Marcus, who may have been as well known during your tenure as he was during mine.

Peter Moskos said...

It sure would be nice to know! I too am looking forward to a "natural experiment." I mean, what if we're wrong and police don't matter? I mean, I doubt that to be the case, but it would be nice to know sooner rather than later if everything I've dedicated my career to has been wrong!

And Al Marcus does ring a bell. (Though I can't find the picture you're referring to.)

I find the Wash Post editorial a bit naive (thanks for bringing it to my attention). But it's not crazy. Still, how often did somebody I arrest even have ID? Often that was the reason I was arresting somebody for a minor offense and not giving him a ticket in the first place.

The other important factor is that police need to be able to make discretionary arrests for minor offenses. Sometimes there's no other way to get a drug dealer off the corner. Or there's no other way to give a woman a night's peace from her past and potentially future domestic abuser.

Still, I'm all for compliant ID carrying people facing less force. (Though I don't know how this would have helped Garner, since he was not compliant.)

Happy New Years! I'm done for the night.

bacchys said...

"Still, I'm all for compliant ID carrying people facing less force. (Though I don't know how this would have helped Garner, since he was not compliant.)"

I've yet to see evidence Garner was reasonably suspected of doing anything illegal. His 31 arrests without any convictions and the statement of his wife that the police would call him "Cigarette Man" and her "Cigarette Man's Wife" seem to be evidence he was being harassed by police.

There is no requirement anywhere in the Republic for citizens to carry ID. There is no law requiring citizens to hand identification documents over to law enforcement on demand. No, the driver's license requirements don't fit the bill: they are as much (if not more) evidence one is entitled to use the public thoroughfares than they are proof of identity.

Garner should have submitted to the arrest, that's true. The place to fight an unlawful arrest is in the courtroom, but the reality is that's no place to fight one at all. It's rare for police to be held accountable for "contempt of cop" arrests that don't ever see the inside of a courtroom, and it never happens that these kidnappings under colour of law receive the punishment they should.

Adam said...

Peter, I was referring to the picture at the top of Friedersdorf's article--the one of all the cops turning their backs on de Blasio.

bacchys: I think your're missing Peter's point. The WaPo article says cops should never be able to use force to arrest for a minor offense. Instead, they should issue a citation or obtain a warrant. But those alternatives aren't feasible if the person doesn't furnish ID (and isn't known to the officer), which happens all the time. State laws often prohibit arrests for certain minor offenses but allow them when the offender doesn't furnish satisfactory ID. See, for example, MD Trans. Art. 26-202(A)(2)(i).

Where have you seen it reported that Garner had zero convictions, or that the police lacked probable cause? I would hope you'd want to see the arrest report or the grand jury transcript before assuming they had no justification for stopping or arresting Garner.

There is a difference between an arrest for a minor offense and a "contempt of cop" arrest, which is actually unsupported by probable cause. Loitering, trespassing, and disorderly conduct are the laws most often invoked in such circumstances. I agree with you that such arrests are deeply troubling and difficult to combat. Those officers should be reprimanded, and the people falsely arrested should be compensated. Unfortunately, the arrestees usually aren't the sort of people who would make sympathetic civil plaintiffs.

Peter Moskos said...

Nice! (in the picture) I complete missed that.

campbell said...

That Washington Post article is poorly thought out. From the article:

“I am placing you under arrest. You must come with me to the station. If you don’t come, you’re committing a separate crime, for which you may be punished.” If the person complies upon hearing the warning, that ends the matter. If not, then the police can obtain a warrant from a judge and make a forcible arrest for both the old crime and the new.

So basically on some level they still recognize that force on a low level crime has to be an option, but now they're sticking in an absurd step of obtaining a warrant to forcibly arrest every non compliant low level offender. And could it be more obvious that those guys have never gone hands on with anyone in their lives? That warning sounds like something from the futuristic cops in Demolition Man.

And really, that plan means an end to arresting people on misdemeanors and infractions. If the police can't use force on those crimes then there's no reason not to just walk away and refuse to identify myself. Or even just refuse to ever stop for the police, assuming I'm confident that what I'm doing isn't a felony. Good luck identifying me from that view of the back of my head and my middle finger.

The no ID thing is increasingly not as big an issue with the in car computers being able to pull up people's driver license photos and mugshots.




Peter Moskos said...

Also, do I get to frisk the person I'm putting in the car? I should hope so! So it's still going to be hands on.

I agree it's kind of crazy, the article, but I like to think about crazy ideas. They don't even have to be good for some good to come out of it.

Matt said...

@Adam. I found the WAPO article to be obtusely naive. The fact that the authors apparently come from the perspective that officers have infinite time to detain a subject already unwilling to comply with basic requests like identifying oneself is severely damaging to any credibility they may actually have. No recognition is given to the fact that often, an offender, especially a minor one, can be arrested with minimal force if action is taken quickly and decisively, but if officers hesitate, the offender often actually gets impatient and escalates the situation. There is no discussion of the validity of using force to prevent flight, non-assaultive resistance after an initially compliant arrest (a more serious form of flight), or the need to detain for civil holds.

Jaywalking is the sort of offense where their assertion is strongest, but what about other "misdemeanors and other non-serious crimes" such as non-violent trespassing? Petty theft? Drunk driving? No attempt is made to operationalize terminology. Are they proposing only violations? Only those crimes without listed victims? Some minor crimes with victims? That makes a difference. The quotation above at least suggests they mean all misdemeanors and non-serious crimes like minor drug possession.

The authors appear to be completely ignoring the hard parts of the question and unreasonably manipulating the zeitgeist. At least they posed the question though.

Matt said...

This thread appears dead, but I wanted to add some perspective (ad hominem attacks?) on one of the authors of the WaPo article.

Here is a Georgetown Law review of a book written by Daniel Markovits: A Modern Legal Ethics: Adversary Advocacy in a Democratic Age

Read the review here:
http://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1367&context=facpub

In it, the author, David Luban, analyzes Mr Markowits' legal mind and presents these ideas as perspective of where Mr Markowits is coming from. The review runs non-partial to positive of the author's views.

"Daniel Markovits
defends the traditional lawyer’s role as a one‐sided partisan advocate who favors client interests regardless of the justice of the cause or the tactics?." [emphasis mine]

"Markovits argues that the basic structure of adversary advocacy necessarily
compels lawyers to lie and cheat."

"Client loyalty and
control require lawyers to make arguments they don’t believe (lying) and to promote outcomes they recognize to be substantively unjust (cheating)"

"Markovits finds normative ethics unphilosophical"

"Markovits argues that advocates can maintain personal integrity through
allegiance to one defining virtue, fidelity—by which he means not fidelity to law, but fidelity to the client’s story, grasped empathetically and advocated without interposing the lawyer’s own values or beliefs."

"...because even though [Markovits] has shown that it is 'conceptually possible' for a lawyer to live with integrity, modernity makes it practically impossible."

This is the guy who wants to tell cops how to do their jobs? He's a real-life caricature of the dirty defense attorney peddling his anti-police schlock to the masses.

bacchys said...

****bacchys: I think your're missing Peter's point. The WaPo article says cops should never be able to use force to arrest for a minor offense. Instead, they should issue a citation or obtain a warrant. But those alternatives aren't feasible if the person doesn't furnish ID (and isn't known to the officer), which happens all the time. State laws often prohibit arrests for certain minor offenses but allow them when the offender doesn't furnish satisfactory ID. See, for example, MD Trans. Art. 26-202(A)(2)(i).****
My comment was on that specific statement by Peter. That Maryland code isn't a requirement to generally carry an ID, but only when operating a motor vehicle on public thoroughfares. Someone walking down the street isn't required by law to carry an ID, let alone produce it on demand.

***Where have you seen it reported that Garner had zero convictions, or that the police lacked probable cause? I would hope you'd want to see the arrest report or the grand jury transcript before assuming they had no justification for stopping or arresting Garner.****
It's the lack of reporting on Garner's convictions that tells me he wasn't convicted. The NYPD was quick to tell us how often he was arrested in support of his getting killed by the actions of NYPD officers (See the ME's report). If they could publicize a conviction, that would have been trumpeted, too. Giuliani pulled the same stunt when a New York officer killed a man because he didn't like drug dealers in his neighborhood- google Patrick Dorismund.

***There is a difference between an arrest for a minor offense and a "contempt of cop" arrest, which is actually unsupported by probable cause. Loitering, trespassing, and disorderly conduct are the laws most often invoked in such circumstances. I agree with you that such arrests are deeply troubling and difficult to combat. Those officers should be reprimanded, and the people falsely arrested should be compensated. Unfortunately, the arrestees usually aren't the sort of people who would make sympathetic civil plaintiffs.***

Should be, but aren't. Scalia's "new professionalism" ain't what it's cracked up to be.

Peter Moskos said...

Without going too far, sometimes people *do* need to be locked up for "contempt of cop." It's just important that the arrest is legal, which it almost always can be.

Adam said...

Matt, I don't think Markovits's arguments are crazy. Most any lawyer or judge would agree that lawyers (especially criminal defense attorneys) must often "make arguments they don’t believe" and "promote outcomes they recognize to be substantively unjust." Markovits labels those "lying" and "cheating," probably to make his thesis sound more provocative, but I don't think those labels are fitting. If Mark O'Mara didn't subjectively believe George Zimmerman's story, would he be "lying" if he said, in an opening argument, that Zimmerman acted in self defense? If O'Mara couldn't make statements like that, wouldn't our adversarial system be in trouble? But (as campbell said), I do think it's fairly obvious that the authors have no experience that is relevant to the discussion. They've clearly never "gone hands on" with anyone, and it doesn't even appear they specialize in criminal law or procedure over at Yale. That doesn't mean they have no right to weigh in on these issues, but you'd think they would have at least phoned a friend with some relevant experience before publishing their article.

bacchys: Again, I don't disagree with you when you say people aren't generally required to carry ID. But otherwise non-arrestable offenses can be arrestable if a person isn't carrying ID. For example, some parts of the MD transportation article apply to pedestrian offenses, such as § 21-506, which says, "Where a sidewalk is provided, a pedestrian may not walk along and on an adjacent roadway." So Michael Brown, if he was unwilling or unable to produce valid ID, could have been arrested in Maryland. My point is simply that whether or not a person is carrying ID *is* often relevant to whether a police officer can (legally) and might(practically) arrest the person for a minor offense.