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This post is the first in a series examining the official policies and informal practices within police departments that may lead to tolerance of police violence.

In the days since the grand jury decisions in Ferguson and Staten Island, several pundits and politicians have tied these tragedies into their previously held positions on overcriminalization, taxes, and even the drug war.

Each of these important issues deserve a full hearing and recognition in the greater criminal justice policy debate—but they have limited bearing on the problem of police violence against citizens.

While it is true the United States and its many smaller jurisdictions have too many criminal laws that can be used against the general citizenry nearly at whim of authorities, the police are empowered to stop people for any number of reasons that would remain even if we were to trim all unnecessary laws from the books.

Thus, whether or not Eric Garner’s “loosie” grey market cigarette sales were illegal in Staten Island, he could have been stopped and questioned for any number of other police priorities.

Likewise, jaywalking—the initial reason then-officer Darren Wilson stopped Michael Brown and his friend in Ferguson—is often just a civil infraction, depending on jurisdiction. Even where it is covered by criminal statute, it is a low-level misdemeanor.

Yet, whatever happened there, it is altogether likely the scuffle that ultimately led to Brown’s death was triggered by an officer aggressively enforcing a non-criminal law.

It’s not just people walking down the street. Fourth Amendment law is littered with cases disputing searches that very often begin with an innocuous, unrelated traffic stop. Speeding, broken taillights, seatbelt violations, or other moving violations can be cited by officers as the reason for a stop.

When used as a method to question someone in relation to a separate crime, whether in a car or on the street, this behavior is known as a pretextual stop. Simplifying a bit, one law (e.g., running a stop sign) is used as pretext to investigate further (e.g., looking for evidence of drug crimes) because the officer otherwise lacks reasonable suspicion or probable cause to stop a person or vehicle. Thus, if a police officer makes up his mind to stop you, even the slightest violation of a law or out of the ordinary conduct (like looking nervous when a police officer is watching you) can give him an excuse to stop you.

Put another way, he’s certainly going to stop you.

The incentives at play, then, are directly related to why an officer would want to stop any given individual. As pointed out by numerous outlets, the people of Ferguson and the surrounding areas are involuntarily subsidizing local government through petty fines and fees. COMPSTAT, the program that tracks law enforcement in New York City and other metropolitan areas, monitors officers’ actions and has resulted in a numbers-driven law enforcement mentality. (This has led to its own problems, to be touched upon in a forthcoming post.) Patrols in high drug and crime areas may use a Broken Windows approach to policing, in which officers look to interdict petty crimes before suspects escalate to major crimes.

All of the above incentives are intra-agency policies and tools, not laws on the books that demand enforcement. Indeed, officers on the street have wide discretion as to what to charge and what to let slide. Therefore, what leads to these encounters is less about the laws themselves than the policies of any given police department.

Moreover, the tenor of those encounters is driven by behavior of the police officers themselves every bit as much, if not more, than a detained citizen. Unlike the friendly neighborhood foot patrol police who became fixtures of the communities on their beats, many of today’s police officers take a much more aggressive approach in their stops.

Part of this, naturally, comes from the officers’ responsibility to take control of any situation in which they are involved. How fast a matter-of-fact demeanor escalates to direct orders, hostility, and violence is up to the officer.

One disturbing aspect in so many of these recent, high-profile homicide cases is the quickness with which violence became the method of control against Michael Brown, Eric Garner, and others. That the recent cases have all involved black males is no surprise to many observers and protesters. Even skeptical black conservative Jason L. Riley tells a story about how he was grabbed from his vehicle by police at gunpoint because he fit the description of a suspect. “Fitting the description” is, in practice, often just a police euphemism for being a black male.​

Particularly in communities of color, this suspicion, antipathy, and quick-to-violence treatment is nothing new. In fact, the 1964 Supreme Court case Terry v. Ohio, upon which ‘Stop and Frisk’ programs controversially rely, Chief Justice Earl Warren wrote:

The President’s Commission on Law Enforcement and Administration of Justice found that ‘in many communities, field interrogations are a major source of friction between the police and minority groups.’ It was reported that the friction caused by ‘misuse of field interrogations’ increases ‘as more police departments adopt ‘aggressive patrol’ in which officers are encouraged routinely to stop and question persons on the street who are unknown to them, who are suspicious, or whose purpose for being abroad is not really evident.’ While frequency with which ‘frisking’ forms a part of field interrogation practice varies tremendously with locale, and the particular officer, it cannot help but be a severely exacerbating factor in police-community tensions. This is particularly true where the “stop and frisk” of youths or minority group members is ‘motivated by the officers’ perceived need to maintain the power image of the beat officer, and aim sometimes accomplished by humiliating anyone who attempts to undermine police control of the streets.’ Terry v. Ohio, 392 U.S. 1,(1964) fn 11, at 15, internal citations omitted (emphasis added).

Later in the opinion, the Chief Justice writes about frisks:

[I]t is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a ‘petty indignity.’ It is a serious intrusion into the sanctity of the person, which may inflict great indignity and rouse strong resentment, and it is not to be undertaken lightly. Terry, at 16-17.

It is more than a little ironic that this case is used as the legal rationale for policies of aggressive policing in minority neighborhoods fifty years hence.

Notice, here the law cites research that says arbitrary stops and frisks are misuses of field interrogations and says directly that such “great indignit[ies]” are not to be undertaken lightly. Yet police policy has made such indignities standard operating procedure.

The law is powerless if those charged with enforcing it disregard it as a matter of policy.

As individual officers stretch the boundaries of stated policy, police departments can develop and sustain tolerance for breaking those boundaries entirely.

Fifteen years ago, criminology professor and police researcher Jerome H. Skolnick wrote an article on police brutality in the American Prospect. He noted that, “Police executives sometimes review the ‘resisting arrest’ cases of police officers to determine whether a cop inclines toward administering vigilante justice.”

The thinking goes, if a suspect is in custody with visible bruises or other injuries, those injuries—if caused by the arresting officer(s)—are typically justified by claims of resistance.

WNYC News recently reviewed over 50,000 NYPD cases in which resisting arrest was among the charges. WNYC found that five percent of NYPD officers accounted for 40 percent of all resisting arrest charges since 2009, and 15 percent of officers accounted for half of all resistance charges.

While a small number of officers are responsible for these charges, indicating that the likelihood of overuse of force is concentrated in a minority of officers, the stat-minded NYPD brass is probably not unaware of these disparities.

What’s more, they certainly tolerate it, even when some of those officers have faced numerous citizen complaints. From the WNYC report:

[The Civilian Complaint Review Board’s] Records show that 40 percent of the 35,000 officers on the force today have never been the subject of a citizen complaint. Another 20 percent have only one. Yet about a thousand cops have 10 or more complaints. One has been able to rack up 51. The name of that officer is confidential, as are the names of any officer who is the target of a CCRB complaint.

Fifty-one citizen complaints and the officer still has a job.

Even if the “good cops” are in the vast majority, as they appear to be, continued service with a complaint record like that can be described as nothing other than a department-wide tolerance of abuse.

That so much policing data emanates from New York City is a function of the abundant resources both inside the department and utilized by outside observers who dive into the available information. As future posts will show, many of the problems exhibited by the NYPD are replicated in departments large and small all over the country.

There is no War on Jaywalking that can be rolled back to make citizens safer from the police who patrol their neighborhoods.

So long as the police are incentivized and inclined to abuse their wide authority, and are continuously not held accountable for that abuse, police practice, and not the law, should be the focus of reform.

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