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by Peter Moskos

March 6, 2015

DOJ: Blaming the Cops

[My other posts on the DOJ reports, 1 & 2.]

I have read (most of) the incredibly damning DOJ’s report on the Ferguson P.D. I tried to read it a bit as Thomas Jefferson edited the Bible. Thomas Jefferson thought that even if Jesus isn't the son of God, even if there are no supernatural events, there’s still something good to be learned from Jesus's life and ethics. So Jefferson edited out all the "special" bits from the Bible. And what was left was still a good book.

I mentally did the same with this DOJ report. I don't think the authors "get" policing. So their criticism of specific policing incidents runs shallow at times. Others I think are wrongly interpreted. Some details are probably not true (know from their Wilson/Brown report that witnesses sometimes make shit up). But just as one can cut the miracles and supernatural out of the New Testament and believe Jesus was still a pretty cool dude, a skeptic can excise huge parts of this DOJ report and still clearly see Ferguson is a deeply -- deeply -- fucked-up place. And that will be the next post.

But first, here are my quibbles:
An officer broke up an altercation between two [girls] and sent them back to their homes. The officer ordered one to stay inside her residence and the other not to return to the first’s residence.
That seems like good policing to me. At first he doesn’t give a ticket. He doesn’t make an arrest. But these fighting fools don’t know when to call it a night. Girl Two goes back to Girl One’s place to restart the fight. Girl One goes to the street to fight.
Later that day, the two minors again engaged in an altercation outside the first minor’s residence. The officer arrested both for Failure to Comply with the earlier orders.
Well now they should get locked up. Still seems like good policing. This officer chooses “Failure to Obey.” Maybe a bad choice of charges, since you can't order somebody to stay in their house. But so what? Call it disorderly conduct or loitering or a minor assault or loitering. It doesn’t matter because these charges are going to get dropped regardless. The arrest is the punishment. But the report makes the officer’s actions seem downright sinister: “The officer’s arrest of the two minors for Failure to Comply without probable cause of all elements of the offense violated the Fourth Amendment.”

So the cop should have charged the girls with something more serious? Or charge their mother's with neglect? Or is the answer is to just let them fight it out until you can get them for felony assault? I don’t like this emphasis on procedural justice (also seen on the Presidential Report) as somehow more important than moral justice. The two sometimes conflict. And I'd prefer to go with what is right that the letter of the law. (Often the law demands you lock somebody up when morally it's the wrong thing to do.)

Later the report criticizes an officer, who, in a similar case of fighting girls, is too quick to make an arrest. Two 15-year-old girls are fighting in class. School staff separate the girls in a hallway. An officer shows up and tells the girls to walk to the principal’s office. Instead, one girl rushes the other girl, "trying to push past staff toward the other girl. The officer pushed her backward toward a row of lockers and then announced that she was under arrest for Failure to Comply." Seems fair enough. She restarted a fight and had to be physically restrained, which is no small deal. What if she keeps charging the other girl? When is it OK to arrest somebody? The report doesn't answer that.

A third officer is criticized for arresting a person who, after being free to go, decides not to leave the scene of his (very minor) crime, and instead responds to the officer:
with profanities. When the officer told him to watch his language and reminded him that he was not being arrested, the man continued using profanity and was arrested for Manner of Walking in Roadway.
The DOJ blames the officer for "Retaliating against individuals for using language that, while disrespectful, is protected by the Constitution."

Say what? If I exercise discretion and don’t arrest you, and then you then thank me by getting in my face and saying, "fuck you," of course I'm going to lock you up. Don't believe me? Next time a cop pulls you over and gives you a warning instead of a ticket (which doesn't happen in Ferguson) and says "drive safe and have a nice day" say "fuck you" instead of "thank you" and see what happens. Cops can legally change their mind. (The legally dubious arrest is for saying "fuck you" when you’re not committing another crime.)

So the report blames one officer for telling fighting girls to go home, another officer for not doing so, and a third for a discretionary arrest. One might conclude that the best policing in no policing.

The report also criticizes cops for using a statute (§ 29-19) that is "likely unconstitutionally." Well thank you for your legal interpretation, Mr. I-haz-graduated-from-law-school. But until the courts actually say otherwise, cops can use the laws that are on the books.

Another curious assertion in the report (citing Brown v. City of Golden Valley and Mattos v. Agarano) is the claim that police cannot use tasers against minor criminals in non-threatening non-compliance situations. I hope this is true, but I don't think it is. I know the courts have been chipping back at wanton taser use. But is the DOJ correct here in this report? What is the law of the land on this matter?

All that said -- even if one doesn't accept some/many/all of the criticisms of the police presented -- this Ferguson report is still a shocking indictment what is business as usual (emphasis on business) in Ferguson.


Jay Livingston said...

OK, the cops are justified in arresting the girls who restart their fight, the girl in school who tries to continue her fight with another girl, and the guy who uses foul language after the cop did him a favor. Those arrests are justified, but are they the best way to handle the situation? Choking Eric Garner to death was justified, but I think even you said that it was not the wisest way the police could have dealt with that situation.
It seems to me that in all these cases, what the cop is responding to is not so much the endangerment of people or the community or even violation of the law; it's the implicit challenge to his authority -- authority that is partly role but also partly personal. The arrest is certainly an understandable response, but is it the best response?

Peter Moskos said...

I'm open to other options.

But I do think the police officers needs to protect his or her authority at both an institutional and a personal level.

Not maliciously or out of petty vindictiveness. But it's all you have *except* for your handcuffs and physical force.

Better arrest one person today than have to fight 5 people tomorrow. People try you; they test you. You can't afford to lose those battles with people you see every day. Not unless you want to fight those battles every day.