August 9, 2019 9:41AM

What the Galveston Photo Means for Police Accountability

Earlier this week, a photo out of Galveston, Texas went viral across social and traditional media. The photo shows two white Galveston police officers on horseback leading a handcuffed black man down the street with a rope. For many, particularly African Americans, the image evoked collective memories of the bygone era of slavery, when fugitive slaves would be captured by armed patrols and marched back to their white owners in shackles. The Galveston police chief, Vernon Hale, apologized and took blame for the incident, attempting to deflect the massive public outrage at the two officers for exercising what he admitted was “poor judgment.”

Whether or not the two officers were cognizant of the racial implications of their actions at the time, the public parading of any handcuffed individual is degrading and humiliating. Like “perp walks,” warrantless roadside searches, and the gratuitous use of mugshots splashed across local news, presumptive innocence—that all arrestees have until they are convicted—is effectively ignored by law enforcement. The ability of police to impose public shame on individuals is an underappreciated aspect of how officers conduct themselves on a day-to-day basis, even when they are operating within the boundaries of the law. Put another way, just because the police may do something to someone doesn’t mean they should.

In a situation like this, the damage goes beyond this man and his family. Imagine that you are an African American in Galveston and you saw police treat a black man like that. The department said that the officers did this because there was no transport vehicle available to take him for processing. Maybe that’s true, maybe it isn’t. Regardless, you know what you’ve seen in your newspapers and splashed across the internet. You know the message that act sends to the black community, irrespective of the officers’ intent. Is that photo going to increase or decrease your belief that those officers will treat you fairly if you encounter them?

This incident, which has undoubtedly damaged the department’s reputation, is yet another example of what we in the Project on Criminal Justice call “self-defeating policing.” For a police department to be effective at closing cases for serious crimes, it needs the cooperation of residents to tell them what they know. As much as the police procedural television dramas rely on high-tech forensics labs or psychological profilers to catch killers, the reality is that cops need information from the communities where a crime happened. A community that does not trust its police force is far less likely to cooperate with them to bring violent people to justice. In this respect, the entire community of Galveston—and particularly its black residents—have been harmed by this sorry episode.

But returning to the man who was subjected to this treatment, he doesn’t have much recourse against the department. The officers didn’t violate any policy, so they cannot be punished, let alone fired, for their behavior—assuming, that is, their account of how this happened is true. There is no criminal law against police doing this to someone, so no criminal charges are possible. But, in a more just system, there is an argument that what they did to him was damaging and violative of his rights. If that were the case, he should be able to sue the officers for that violation. Unfortunately, we don’t live with that system.

Not only have the courts given police officers a wide-amount of latitude on the use of force and detention against individuals, they have insulated police further with the doctrine of qualified immunity (QI). Qualified immunity is a protection from civil liability for a rights violation that isn’t “clearly established” in the jurisdiction in which it happened. That is, if this man were to try to sue the officers for their actions, even if a court found they violated his rights, QI may prevent the lawsuit from going forward if another court in the federal jurisdiction hadn’t previously ruled this particular kind of incident was a rights violation. This is speculative, of course, but this illustrates the systemic lack of accountability for police officers—no administrative, criminal, and civil consequences—for what many citizens consider to be plainly wrongful conduct.

One might hope that the damage of this act would be limited to Galveston, as every police department is different and what happens in one jurisdiction isn’t necessarily indicative of what would happen in another. Yet, on Thursday, at least two police unions in Texas defended the officers. Via CNN:

“Contrary to what some have said, these officers did not use poor judgment. They did exactly what they are trained to do," said Kevin Lawrence, the Executive Director of the Texas Municipal Police Association.

Statements like this are not how you build trust in communities that have scores of reasons to distrust police. Police unions have an obligation to defend their members from unfair treatment by their employers, but they rarely consider the impact of their public excuse-making in the face of any criticism of police officers. The Galveston officers are in little danger of any serious repercussions from this incident, yet the unions are coming out defending their actions because, to them, it’s just fine to humiliate people like this. In polite society, when people are wronged, even accidentally, we expect—at the very least—an apology; an acknowledgment of the harm done to someone else. Police unions seem to be constitutionally incapable of admitting fallibility or error in even the most egregious circumstances.

So long as police officers are shielded from accountability for their actions against the public, they will continue to fail in their duty to serve and protect.