Real Police Reform Requires National Policing Standards

August 12, 2016 • Commentary
By Nat Hentoff and Nick Hentoff
This article appeared on Cato​.org on August 12, 2016.

Does the U.S. Justice Department have a form template it uses when reporting on its civil rights investigations of police departments? It sure seems like it does. Because there are disturbing similarities between the DOJ’s report on the Baltimore Police Department (BPD) released this week and the reports the DOJ released on the Ferguson Police Department in March 2015 and the Cleveland Police Department in December 2014.

The DOJ’s report concluded that the BPD engaged in a “pattern or practice of conduct that violates the Constitution or federal law.” As was the case with the DOJ reports on the Ferguson and Cleveland PDs, the Baltimore PD’s unlawful police conduct included the “making of unconstitutional stops, searches and arrests,” the routine use of excessive force, and “retaliating against people engaging in constitutionally protected expression.”

Of particular concern is the report’s conclusion that these systemic police practices — including a lack of adequate discipline and a lack of adequate training — resulted in violent conflict between community members and the police.

“Officers frequently used excessive force in situations that did not call for aggressive measures,” The Baltimore Sun’s analysis of the DOJ’s report concluded. This included the use of excessive force against “individuals with mental health disabilities or in crisis.” The report blamed “a lack of training and improper tactics” for causing “unnecessarily violent confrontations with these vulnerable individuals.”

Among the more egregious examples of constitutional violations cited by the DOJ included a black woman who was forced to submit to a public anal cavity search on the side of the road after being pulled over for a minor traffic violation. The report also cited the case of a black motorist who was pulled over by the police 30 times in less than four years without ever being cited for a traffic offense.

In another incident, when an officer questioned his sergeant’s order to disperse a gathering on a public street corner because he had no reason to do so, the sergeant told the officer to “make something up.” The fact that the sergeant gave such an illegal order in the presence of a DOJ observer reflects just how deeply the culture of confrontation is ingrained in many police departments.

Any attempts at meaningful police reform must include programs to transform the culture of confrontation into a culture of conflict resolution. This can be done without compromising a police department’s mission to protect the public or endangering its officers.

That was the conclusion of “Guiding Principles on Use of Force,” a report released earlier this year by the nonprofit Police Executive Research Forum (PERF), a prominent Washington, D.C.-based policing policy think tank.

The report, authored by PERF’s executive director Chuck Wexler, encourages a new approach to policing. According to The Washington Post, PERF’s guidelines focus on “retraining officers to avoid conflict whenever possible and stressing the ‘sanctity of life’ of everyone involved, not just the officers’.”

The PERF proposals resulted in an immediate, intense backlash from police unions, whose lobbying for parochial interests has become the single biggest obstacle to meaningful police reform.

“I don’t understand what the uproar is,” Michael Chitwood, the police chief in Daytona Beach, Florida, told the Post. “Wexler’s proposal that a supervisor be summoned to every tense scene has been shown to reduce violence, Chitwood said, as have the proposals to increase crisis intervention training for dealing with the mentally ill, prohibiting the use of force on people who are a danger only to themselves, and administering immediate aid to someone who has been shot.”

Meanwhile, some police departments have begun issuing citations to officers who prevent conflict. “More than 40 Philadelphia officers have received awards since December for defusing conflicts without shooting, clubbing or otherwise using maximum force against anyone,” the Associated Press reported in May.

“An officer going home is of paramount importance to us, but everybody should have an opportunity to go home if that presents itself,” Philadelphia Police Commissioner Richard Ross told the AP. “This is an effort to slow down situations for the sake of everybody concerned.”

The same issues that were found in DOJ reports concerning the Baltimore, Ferguson and Cleveland police departments have also been documented by civil rights groups as systemic within the New York City and Chicago police forces. It is likely that some of these same problems, to a greater or lesser degree, would be found in investigations of a majority of the approximately 18,000 police departments in the U.S.

In 1998, Human Rights Watch conducted an exhaustive investigation of policing in America that it documented in its report “Shielded From Justice: Police Brutality and Accountability in the United States.”

“Police brutality is one of the most serious, enduring and divisive human rights violations in the United States,” HRW’s report concluded. “The problem is nationwide, and its nature is institutionalized.”

Congress should mandate national standards for constitutional policing, including civilian oversight.

The standards would be enforced, like past civil rights legislation, through the threat of withholding federal funding to those police departments who refuse to adopt the national standards.

It is long past time for the U.S. government to acknowledge that police misconduct is not a series of isolated problems that can be solved by a series of individual civil rights enforcement actions. As HRW concluded almost 20 years ago, it is a systemic nationwide problem that must be addressed on a national level.

About the Authors
Nat Hentoff is a nationally renowned authority on the First Amendment and the Bill of Rights. He is a member of the Reporters Committee for Freedom of the Press, and the Cato Institute, where he is a senior fellow. Nick Hentoff is a criminal defense and civil liberties attorney in New York.