Protests and Community Control
2222
D E B O P . A D E G B I L E
Policing Through an American Prism
a b s t r a c t . Policing practices in America are under scrutiny. Video clips, protests, and media coverage bring attention and a sense of urgency to fatal police civilian incidents that are often
accompanied by broader calls for reform. Tensions often run high after officer involved shootings
of unarmed civilians, and minority communities, law enforcement, and politicians bring differ-
ent perspectives to both the individual events and broader policy issues. Collaborative reform,
however, can build upon stakeholders’ common ground—a concern for public safety, liberty, and
equality. Achieving this goal requires a symbiotic relationship between the people and the police,
where the relationship is based upon earned trust, a concept that dates back to Sir Robert Peel’s
Principles of Policing and underlies many modern community policing principles. Under the
new administration, the federal government may no longer be a catalyst for police reform. Iden-
tifying and embracing the common ground will only become a more important path for police
reform where individual cities, departments and communities look to chart a more effective path.
a u t h o r . The author is a partner at Wilmer Cutler Pickering Hale and Dorr, LLP, former leader of the NAACP Legal Defense and Educational Fund, Inc., and a Commissioner on the
United States Commission on Civil Rights. This Feature, however, is published by the author in
his personal capacity. Mr. Adegbile has experience representing plaintiffs seeking structural re-
form in policing practices, as well as police departments and municipalities, including the Balti-
more Police department and City of Baltimore, in United States Department of Justice “pattern
or practice” investigations designed to assess the need for police reforms to remedy constitutional
violations. This Feature is based on a speech originally delivered at the Utah Bar Association
Spring Meeting in March 2016. The author is deeply indebted to WilmerHale LLP colleagues
Alyssa Budihas, Adriel Cepeda-Derieux, Michael Gottesman, Brent Gurney, Jane Shim, and Alli-
son Trzop, as well as to Rhea Fernandes and her colleagues on the editorial staff of the Yale Law
Journal for their thoughtful questions, comments, critiques, and suggestions throughout the
preparation of this piece.
policing through an american prism
2223
f e at u r e c o n t e n t s
introduction: policing in america 2224
i. peel’s principles: the foundation of community policing 2229
A. The Origin of Police Departments 2230 B. Incorporating Peel’s Principles into Current Police Reform 2231
ii. the problem through different lenses 2234
A. A Minority Community Perspective 2234 B. A Law Enforcement Perspective 2238 C. A Political Perspective 2240
iii. the future of police reform: common ground 2243
iv. pathways to reform 2246
A. DOJ Pattern-or-Practice Investigations: The Challenge and Opportunity 2247 B. DOJ Community-Oriented Policing Service Collaborative Review 2253 C. Do-It-Yourself Pathway 2255
conclusion: an american moment 2258
the yale law journal 126:2222 2017
2224
i n t r o d u c t i o n : p o l i c i n g i n a m e r i c a
There is an intense focus on policing in America. Bracing headlines describe
uses of force by police resulting in tragic deaths or serious injuries. In New
York, Eric Garner was killed by a New York City Police Department (NYPD)
officer who applied a chokehold while attempting to arrest Mr. Garner for sell-
ing loose cigarettes. 1
In South Carolina, a police officer shot Walter Scott in the
back and killed him when Mr. Scott attempted to flee on foot following a car
stop. 2
In Minnesota, an officer shot and killed Philando Castile, who was a
driver sitting next to his girlfriend during a car stop. 3
In Texas, Yvette Smith
was shot and killed seconds after opening her door for police officers who were
responding to a call. 4
Other headlines capture deadly violence visited upon po-
lice officers in the line of duty. In Virginia, Ashley Guindon was shot and killed
during her first shift as a police officer by a military veteran while responding
to a domestic violence call. 5
In New York, a man walked up to the window of
Rafael Ramos and Wenjian Liu’s police car and opened fire, killing them at
1. At a news conference following Eric Garner’s death, police commissioner William
Bratton stated that “[a]s defined in the department’s patrol guide, this would appear to have
been a chokehold.” Joseph Goldstein & Nate Schweber, Man’s Death After Chokehold Raises
Old Issue for the Police, N.Y. TIMES (July 18, 2014), http://www.nytimes.com/2014 /07/19 /nyregion/staten-island-man-dies-after-he-is-put-in-chokehold-during-arrest.html [http://
perma.cc/WHX5-MXFR]. The Office of the Chief Medical Examiner ruled Mr. Garner’s
death a homicide, concluding that the cause of Mr. Garner’s death was “compression of the
neck, chest compression and being laid flat on the ground while officers restrained him.”
Pervaiz Shallwani, NYPD Officer’s Chokehold Led to Staten Island Man’s Death, Medical Exam-
iner Says, WALL ST. J. (Aug. 1, 2014), http://www.wsj.com/articles/staten-island-man-died
-of-choke-hold-administered-by-nypd-officer-new-york-city-medical-examiner-140692220
0 [http://perma.cc/2AV5-3TDJ]. The grand jury did not indict the police officer who re-
strained Mr. Garner. Evan Horowitz, An Interpretation of the Grand Jury’s Decision on Eric
Garner’s Death, BOS. GLOBE (Dec. 4, 2014), http://www.bostonglobe.com/metro/2014/12/04
/understanding-eric-garner-death-and-grand-jury-decision/s9uQPMvcKPD2mAmFy2ln9J
/story.html [http://perma.cc/BR2P-5TSE].
2. Alan Blinder, Mistrial for South Carolina Officer Who Shot Walter Scott, N.Y. TIMES (Dec.
5, 2016), http://www.nytimes.com/2016/12/05 /us/walter-scott-michael-slager-north-charle
ston.html [http://perma.cc/VPA4-ZJFC].
3. Christina Capecchi & Mitch Smith, Officer Who Shot Philando Castile Is Charged with Man-
slaughter, N.Y. TIMES (Nov. 16, 2016), http://www.nytimes.com/2016/11/17/us/philando
-castile-shooting-minnesota.html [http://perma.cc/64PB-HYB6].
4. Tom Dart, Former Texas Officer Who Fatally Shot Unarmed Woman Found Not Guilty,
GUARDIAN (Apr. 8, 2016), http://www.theguardian.com/us-news/2016/apr/07/fdaniel
-willis-not-guilty-fatal-police-shooting-yvette-smith-texas [http://perma.cc/5JZH-VUAS].
5. Justin Jouvenal, Ian Shapira & Fredrick Kunkle, Virginia Cop Fatally Shot 1st Day on Job;
Army Sergeant Charged in Killing, CHI. TRIB. (Feb. 28, 2016), http://www.chicagotri
bune.com/news/nationworld/ct-virginia-police-officer-killed-20160228-story.html [http://
perma.cc/Z3PZ-YPDP].
policing through an american prism
2225
point-blank range. 6
And a gunman targeting police shot and killed five officers
in Dallas—Lorne Ahrens, Michael Krol, Michael Smith, Brent Thompson, and
Patricio Zamarripa—as they patrolled a demonstration to protest police shoot-
ings of African-American men. 7
These examples are far from exhaustive. 8
Although each fatal incident has unique circumstances, in many places,
news of these tragedies is viewed through a historical lens of poor relations be-
tween police and minority communities. 9
Both local and national dimensions
contribute to a climate of tension, anger, and fear in some communities; similar
sentiments are also present among many in law enforcement. 10
The topic of
6. Benjamin Mueller & Al Baker, 2 N.Y.P.D. Officers Killed in Brooklyn Ambush; Suspect Commits
Suicide, N.Y. TIMES (Dec. 20, 2014), http://www.nytimes.com/2014 /12/21/nyregion/two-po
lice-officers-shot-in-their-patrol-car-in-brooklyn.html [http://perma.cc/6VM4-AWUM].
7. Manny Fernandez, Richard Perez-Pena & Jonah Engel Bromwich, Five Dallas Officers Were
Killed as Payback, Police Chief Says, N.Y. TIMES (July 8, 2016), http://www.nytimes
.com/2016/07/09/us/dallas-police-shooting.html [http://perma.cc/4SMW-ADLB].
8. In 2016, there were 957 fatal shootings by officers, down slightly from 991 in 2015. Kimbriell
Kelly et al., Fatal Shootings by Police Remain Relatively Unchanged After Two Years, WASH.
POST (Dec. 30, 2016), http://www.washingtonpost.com/investigations/fatal-shootings-by
-police-remain-relatively-unchanged-after-two-years/2016/12/30/fc807596-c3ca-11e6-9578
-0054287507db_story.html [http://perma.cc/5GS9-LFCV]. Sixty-two police officers were
shot and killed by civilians in 2016, which was up from thirty-nine officers killed in 2015. Id.
According to the Guardian, 169 unarmed civilians were killed by police in 2016. Jon Swaine
& Ciara McCarthy, Young Black Men Again Faced Highest Rate of US Police Killings in 2016,
GUARDIAN (Jan. 8, 2017), http://www.theguardian.com/us-news/2017/jan/08/the-counted
-police-killings-2016-young-black-men [http://perma.cc/3MNC-92VL]. Overall, firearm-
related police deaths have been on a dramatic downward trend for the last thirty-five years,
especially when adjusted for population growth. See Mark J. Perry, Is There Really a ‘War on
Cops’? The Data Show that 2015 Will Likely Be One of the Safest Years in History for Police,
AEIDEAS (Sept. 9, 2015, 2:58 PM), http://www.aei.org /publication/is-there-really-a
-war-on-cops-the-data-show-that-2015-will-likely-be-one-of-the-safest-years-in-history-for
-police [http://perma.cc/WG79-B8TH] (analyzing data showing that 2013 and 2015 were
two of the safest years for law enforcement, indicating a downward trend dating back to the
Prohibition era).
9. See infra Section IV.B for examples of law enforcement leaders who are acknowledging the
history of police abuses in minority communities. The existence of federal oversight over lo-
cal police is itself one way that Congress has recognized America’s history of police brutality.
For example, the Rodney King beating was the impetus for the Police Accountability Act of
1991, the predecessor to 42 U.S.C § 14141, which authorized the U.S. Department of Justice
to conduct pattern-or-practice investigations. See H.R. Rep. No. 102-242, at 135-38 (1991)
(discussing the King incident and other examples of unlawful police conduct). For an ac-
count of clashes between communities of color and police during the Civil Rights Move-
ment, see BARBARA HARRIS COMBS, FROM SELMA TO MONTGOMERY: THE LONG MARCH TO
FREEDOM (2013).
10. A Pew survey conducted in 2016 found that ninety-three percent of officers say officers in
their department have become more concerned for their safety as a result of “high-profile in-
cidents involving blacks and the police.” Rich Morin et al., Behind the Badge, PEW RES. CTR.
the yale law journal 126:2222 2017
2226
policing in America draws new urgency and attention due to viral video clips of
individual police encounters and police reform movements such as Black Lives
Matter. Policing practices are under scrutiny by the media, the public, politi-
cians, the U.S. Department of Justice (DOJ), private litigants, and police de-
partments. While the events surrounding each incident are different, they give
rise to some common questions. Can we recalibrate police-community rela-
tions, where necessary, to better keep our communities and our law enforce-
ment officers safe? Can we find a way to minimize use-of-force tragedies that
may have grave individual and community costs and serve as flashpoints? Can
we find common ground that provides a starting point for police reform where
such reform is necessary?
As for common ground, it appears at first glance that the various stake-
holders each come to the broader reform conversation with divergent interests.
But, these divergences reflect not competing goals but mainly disagreements
about which policing practices or tactics will best achieve common goals. The
key stakeholders have a common interest in public and officer safety, and in
effective police-community relations. The approach to reforming policing to
improve both effectiveness and police-community relations is not one-size-fits-
all. Departments use varying tactics to meet local priorities and evolving public
safety challenges. Although there is no uniform approach, many police leaders
have recognized that avoidable uses of force erode public trust 11
and in turn
make communities less, not more, safe. 12
Police use of force, however, is not the only area of police-community rela-
tions facing close scrutiny. Legally circumscribed stops are an essential police
tactic, but aggressive stop-and-frisk policies that reach outside the bounds of
lawful limits increase the frequency of citizen-police confrontations to cite an-
65 (Jan. 11, 2017), http://assets.pewresearch.org/wp-content/uploads/sites/3 /2017/01/06171
402/Police-Report_FINAL_web.pdf [http://perma.cc/DR5T-J6GM]. Three-quarters of
officers reported that interactions between police and blacks have become more tense. Id.
11. Policing experts and leaders recognize the need to reduce use-of-force incidents in order to
maintain community trust. See Office of Cmty. Oriented Policing Servs., Emerging Use of
Force Issues: Balancing Public and Officer Safety, INT’L ASS’N CHIEFS POLICE & U.S. DEP’T JUST.
7 (Mar. 2012), http://www.theiacp.org/portals/0/pdfs/emerginguseofforceissues041612.pdf
[http://perma.cc/F2UC-5JBA] (characterizing inappropriate use of force as a breach of the
public trust and emphasizing the importance of maintaining sensitivity to the resulting
harms); Chuck Wexler, Why We Need To Challenge Conventional Thinking on Police Use of
Force, in Guiding Principles on Use of Force, POLICE EXECUTIVE RES. F. 4 (Mar. 2016) [herein-
after Guiding Principles], http://www.policeforum.org /assets/30%20guiding%20principles
.pdf [http://perma.cc/JTG5-UGDZ] (“Most police officers never fire their guns . . . [b]ut
police chiefs tell us that even one bad encounter can damage trust with the community that
took years to build.”).
12. Guiding Principles, supra note 11, at 30 (concluding that rebuilding bridges of trust between
police and the residents they serve will enhance both officer safety and community safety).
policing through an american prism
2227
other example. Some of these practices have been the subjects of legal challeng-
es. 13
The impact of these practices on police-community relations can be pro-
nounced, particularly in some minority neighborhoods. 14
A high volume of un-
justified stops can quickly build resentment for law enforcement and escalate
tensions between the community and the police. 15
Additionally, if every police-
civilian confrontation poses some danger, unnecessary confrontations pose un-
necessary dangers.
At the same time, policing is a difficult and dangerous job. The men and
women of law enforcement deal with very volatile and unpredictable human
problems including domestic violence cases, drug-related violence, gang activi-
ty, widespread availability of illegal guns, and frequent encounters with per-
sons in mental distress. Law enforcement officers regularly place themselves
one emergency call away from tragedy and are charged with making split-
second decisions with potentially grave consequences.
The job is difficult and the tensions in frayed police-community relations
are real. Recognizing the need to share information regarding best practices,
representatives of law enforcement and policing experts, such as the Interna-
tional Association of Chiefs of Police and the Police Executive Research Forum,
the DOJ under President Obama, and community voices, coalesced around key
policing approaches that they believed could enhance public trust and mini-
mize community tension with appropriate regard for public and officer safety
imperatives. 16
For example, President Obama’s Task Force on Twenty-First
Century Policing emphasized that “trust between law enforcement and the
13. See infra notes 55-57, 71 and accompanying text for descriptions of recent lawsuits challeng-
ing police practices.
14. See Floyd v. New York, 959 F. Supp. 2d 540, 590 (S.D.N.Y. 2013) (“The NYPD has known
for more than a decade that its officers were conducting unjustified stops and frisks and
were disproportionately stopping blacks and Hispanics. Despite this notice, the NYPD ex-
panded its use of stop and frisk by seven-fold between 2002 and 2011.”); infra notes 66-70
and accompanying text. Fifty-two percent of the 4.4 million persons stopped by the NYPD
from January 2004 to June 2012 were African-American. Floyd, 959 F. Supp. 2d at 558-59.
Weapons were seized in 1% of the stops of black people and 1.4% of the stops of white peo-
ple. Id. at 559. Contraband other than weapons were seized in 1.8% of stops of black people
and 2.3% of stops of white people. Id.
15. See Wesley Lowery, Carol D. Leonnig & Mark Berman, Even Before Michael Brown’s Slaying in
Ferguson, Racial Questions Hung over Police, WASH. POST (Aug. 13, 2014), http://www.wash
ingtonpost.com/politics/even-before-teen-michael-browns-slaying-in-mo-racial-questions
-have-hung-over-police/2014 /08/13 /78b3c5c6-2307-11e4-86ca-6f03cbd15c1a_story.html
[http://perma.cc/DY2U-KNCX].
16. See PERF’s 30 Guiding Principles on Use of Force, in Guiding Principles, supra note 11, at 33-78
(defining thirty principles, developed by police executives, for reducing use-of-force inci-
dents in order to protect police and public safety).
the yale law journal 126:2222 2017
2228
people they protect and serve is essential in a democracy.” 17
Community-
focused policing models are one way to enhance the bonds of trust and pro-
mote more effective policing. 18
In that model, the public looks to law enforce-
ment to keep neighborhoods safe, and law enforcement looks to the public to
actively aid them in their effort. This approach to policing is sometimes de-
scribed as the “guardian mindset.” 19
When that relationship between the police
and the community breaks down, it can, in some cases, stem from or lead to a
more aggressive style that emphasizes zero-tolerance policing and a so-called
“warrior mindset.” 20
In the latter scenario, the public safety mission may be
more difficult to achieve. 21
The relationship between law enforcement and the community also exists
in a broader context. Properly conceived, law enforcement serves democratic
goals. According to one foundational conception of policing—the Peelian prin-
ciples—the police power derives from public consent and approval. 22
Although
Peel’s Principles are traced to England in 1829, this Feature evaluates the cur-
rent landscape of police reform against these principles, which highlight the
importance of democratic mechanisms and the public good. In his farewell ad-
dress, President Obama observed that democracy does not require uniformity,
but it does require a basic sense of solidarity. 23
The same is true in the Peelian
framework of policing, which emphasizes the capacity of community-focused
policing to serve our communities through well-calibrated practices and poli-
cies.
17. Office of Cmty. Oriented Policing Servs., Final Report of the President’s Task Force on 21st Cen-
tury Policing, U.S. DEP’T JUST. 1 (May 2015) [hereinafter Task Force on Policing], http://www
.cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf [http://perma.cc/5AXU-F8PA].
The task force consisted of four police chiefs, one police union leader, a police academy lead-
er, two academics, and four nonprofit leaders. Id.
18. See infra notes 114-116 and accompanying text for a discussion of one study that found im-
proved community relations after community policing reforms were adopted.
19. Task Force on Policing, supra note 17, at 11-12.
20. Id. at 1.
21. See Kimberly Kindy, Creating Guardians, Calming Warriors, WASH. POST (Dec. 10,
2015), http://www.washingtonpost.com/sf/investigative/2015 /12/10/new-style-of-police
-training-aims-to-produce-guardians-not-warriors [http://perma.cc/V92D-Y6GD] (“Law
enforcement culture should embrace a guardian mindset to build public trust and legitima-
cy. Toward that end, police and sheriffs’ departments should adopt procedural justice as the
guiding principle . . . to guide their interactions with the citizens they serve.”); Task Force on
Policing, supra note 17, at 11; (discussing guardian officer training of thousands of new re-
cruits outside of Seattle).
22. See infra note 41 and accompanying text (discussing the “Legitimacy Principle”).
23. President Obama Farewell Address: Full Text, CNN (Jan. 11, 2017, 11:43 AM), http://www
.cnn.com/2017/01/10/politics/president-obama-farewell-speech [http://perma.cc/L8WT
-VBPD].
policing through an american prism
2229
In this Feature, I argue in favor of a democracy-reinforcing model of polic-
ing that revisits Peel’s principles in the contemporary context. Part I sets out
Peel’s principles and draws parallels between their original application and
their continuing relevance today. Part II considers certain of the key stakehold-
ers who have an interest in police practices and reform, including minority
communities, law enforcement, and politicians. It explores aspects of each of
their perspectives to identify their respective interests and any common ground
between them. Part III examines how Peel’s Principles capture the common
ground identified in Part II and connects this framework with community po-
licing reforms that some jurisdictions have already started to implement. Part
IV describes three different reform pathways that embrace Peel’s vision of legit-
imacy and trust, paying special attention to how the Trump Administration
might impact each of these approaches.
There is no perfect system of policing and no panacea capable of eradicat-
ing crime or the racial tensions that exist both within and outside of the polic-
ing context. This Feature, however, seeks to contribute to the national conver-
sation on policing by considering how key stakeholders may move beyond an
“us versus them” dynamic and may instead identify common ground that can
light a path toward effective models of policing. When stakeholders focus on
their common goals, they will recognize that community-centered policing
built on an earned mutual trust not only promises tangible benefits for the
safety of the public and of law enforcement officers, but also that this approach
can positively affect the climate of police-community relations.
i . p e e l’s p r i n c i p l e s : t h e f o u n d at i o n o f c o m m u n i t y p o l i c i n g
Peel’s Principles were developed at the dawn of the first organized police department in London almost two-hundred years ago, and they took account
of both the value of a formal police force and the people’s skepticism about vesting that force with considerable quasi-military power that could threaten
liberty if unchecked. 24
These principles offer guideposts for the ongoing na-
tional discussion about how to recalibrate our policies today.
24. RADLEY BALKO, RISE OF THE WARRIOR COP: THE MILITARIZATION OF AMERICA’S POLICE
FORCES 29-30 (2013).
the yale law journal 126:2222 2017
2230
A. The Origin of Police Departments
Sir Robert Peel—the father of London’s police force, 25
and later two-time
Prime Minister of England 26
—is credited with the creation of the first modern
police force in London in 1829. 27
Although he and his father pushed to create a
police force in the preceding decades, British concerns about the consequences
for the nation’s history of civil liberties “had repeatedly killed the idea.” 28
In-
deed, many British citizens feared that a standing police force would under-
mine democracy by enabling the state to suppress protest or support unpopular
rule. 29
Concerned about worsening conditions of crime in London, however,
Peel obtained Parliament’s approval to create the police force in 1829. 30
In the face of considerable skepticism, Peel sought to make a formal police
force acceptable to the public by setting out nine principles that every new
officer was to follow. 31
These guidelines became known as Peel’s Principles 32
and were intended to reinforce the notion that officers’ primary responsibilities
were both to fight crime and protect citizens’ rights. 33
Peel’s Principles were
conceived as a conscious democratic limitation on police power. As I argue be-
low, they still offer guidance for modern American police to follow today.
The earliest police forces in America faced similar skepticism. In the Ameri-
can colonies, professional British soldiers executed many of the same law en-
25. Joseph Goldstein & J. David Goodman, A London Guide for 1 Police Plaza, N.Y. TIMES (Apr.
15, 2014), http://www.nytimes.com/2014 /04 /16/nyregion/a-london-guide-for-1-police
-plaza.html [http://perma.cc/P6D7-MJUN]. There is much debate around how much in-
fluence Peel actually had over early policies. See, e.g., Susan A. Lentz & Robert H. Chaires,
The Invention of Peel’s Principles: A Study of Policing ‘Textbook’ History, 35 J. CRIM. JUST. 69
(2007) (casting doubt on the principles’ origins and indicating how the principles may have
been manipulated over time). Regardless of their origins, this Feature argues that the prin-
ciples stand on their own as sound guideposts for modern policing.
26. See History—Past Prime Ministers—Sir Robert Peel 2nd Baronet, GOV.UK, http://www.gov .uk/government/history/past-prime-ministers/robert-peel-2nd-baronet [http://perma.cc
/LXX4-R5DC].
27. BALKO, supra note 24, at 29.
28. Id. at 29.
29. See Sir Robert Peel and the New Metropolitan Police, NAT’L ARCHIVES, http://www
.nationalarchives.gov.uk/education/candp/prevention/g08/g08cs2.htm [http://perma.cc
/XH54-727G].
30. Id.
31. Sir Robert Peel, Principles of Policing (1829), in KENNETH J. PEAK & RONALD W. GLENSOR,
COMMUNITY POLICING AND PROBLEM SOLVING: STRATEGIES AND PRACTICES 3 (2d ed. 1999).
32. See Goldstein & Goodman, supra note 25.
33. BALKO, supra note 24, at 29.
policing through an american prism
2231
forcement functions that modern police do today. 34
This standing army was
specifically cited as a grievance in the Declaration of Independence. 35
To the
Founders, a police force posed a similar risk to democratic principles as stand-
ing armies did. 36
Having lived with an occupying force—and understanding its
threat to liberty 37
—the Founding generation was not eager to trade one occupi-
er for another. 38
But to say that formal policing was not a concept familiar to the Founding
generation is not to say that it would not eventually find a place firmly within
our democratic traditions. In Federalist No. 8, 39
Alexander Hamilton described
the competing principles of liberty and safety that would be weighed in a
different context when cities sought to establish formal police forces. Ameri-
cans have long sought to balance these principles. Perhaps one of the earliest
examples from the early nineteenth century was that of the New York Police
Department—the first modern-style American police department. New York
police initially patrolled the streets unarmed and without uniforms because its
founders worried that uniformed and armed officers would too closely resem-
ble a military force that citizens would perceive as a threat to liberty. 40
Efforts to
strike the balance between liberty and safety continue today.
B. Incorporating Peel’s Principles into Current Police Reform
The Peelian framework for policing recognizes that improving public safety
does not require the trampling of democratic values. In fact, effective policing
reinforces democracy and liberty.
34. See id. at xi.
35. See THE DECLARATION OF INDEPENDENCE para. 13 (U.S. 1776).
36. BALKO, supra note 24, at xi.
37. See THE FEDERALIST NO. 8, at 62 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (“The
violent destruction of life and property incident to war . . . will compel nations the most at-
tached to liberty to resort for repose and security to institutions which have a tendency to
destroy their civil and political rights. To be more safe, they . . . become willing to run the
risk of being less free.”).
38. See THE DECLARATION OF INDEPENDENCE paras. 13, 14, 17 (U.S. 1776) (“[The King] has kept
among us, in times of peace, Standing Armies without the Consent of our legislatures. He
has affected to render the Military independent of and superior to the Civil pow-
er . . . protecting them, by a mock Trial . . . .”).
39. See THE FEDERALIST NO. 8, supra note 37.
40. BALKO, supra note 24, at 30.
the yale law journal 126:2222 2017
2232
In the policing context, law and experience return time and again to the
values of legitimacy, trust, and restraint. Peel captured these values in several of
his principles, which balance safety with respect for liberty and equality:
“The ability of the police to perform their duties is dependent upon public
approval of police existence, actions, [and] behavior . . . .” 41 I regard this as the
Legitimacy Principle.
“Police must secure the willing cooperation of the public in voluntary ob-
servance of the law to be able to secure and maintain public respect.” 42 I regard
this as the Trust Principle.
“Police seek and preserve public favor, not by catering to public opinion,
but by constantly demonstrating absolutely impartial service to the law . . . by
ready offering of individual service and friendship to all members of society
without regard to their race or social standing” and “the police are the public
and the public are the police . . . .” 43 I regard these as the Equality and Com-
munity Principles.
The final Peelian Principle is particularly significant in the context of to-
day’s pressing challenges. “Police should use physical force to the extent neces-
sary to secure observance of the law or to restore order only when the exercise
of persuasion, advice and warning is found to be insufficient . . . .” 44
I regard
this as the Restraint and Sanctity of Life Principle. Peel’s notion of policing places responsibility on both the community and
the police. When there is trust between law enforcement and the community,
the community benefits because law enforcement officers place primacy on the
community’s wellbeing and understand the weight of their responsibility. Po-
lice, in turn, benefit from working in a community that appreciates their role in
promoting safety and actively supports that common goal.
These principles are democratic because they bind the police to the com-
munities they serve and affirm certain fundamental values. The Legitimacy
Principle and Community Principle support democratic participation because
police work requires public approval and participation. This mutual respect is
tied to law enforcement’s commitment to remain within its designated role,
bounded by the Restraint and Sanctity of Life Principle. Through the Trust
Principle, officers’ duty to enforce the law serves the larger goal of maintaining
public respect, which contributes to a dynamic in which the police can enlist
41. The Roots of Policing: Sir Robert Peel’s 9 Principles, CLEVELAND.COM (June
8, 2016), http://www.cleveland.com /metro/index.ssf/2016/06 /the_roots_of_policing _sir
_robe.html [http://perma.cc/Q5L9-WG4S] (quoting Principle 2) (emphasis added).
42. Id. (quoting Principle 3).
43. Id. (quoting Principles 5 and 7).
44. Id. (quoting Principle 6) (emphasis added).
policing through an american prism
2233
the public’s cooperation to guard public safety. Officers must balance compet-
ing responsibilities: the duty to protect the people’s liberty and the power to
take that liberty away. Together, Peel’s Principles require participation and ac-
countability, in a process where liberty and equality are fundamental. While
community members and the police bring different experiences and perspec-
tives to the question of public safety, community-supported policing is itself a
democratic process that is designed to guard the liberty of the community by
enforcing the law. Approaches to policing will vary from place to place, but
both the public and law enforcement stand to benefit from Peel’s framework.
Peel’s Principles are as relevant today as they were in 1829. Of course,
there have been competing interpretations of which principles are central to the
Peelian model of policing. 45
A comparison of these analyses suggests that there
is no clear consensus on which principles are most fundamental to the Peelian
philosophy. 46
For example, some scholars argue that a centralized, military-
style structure is one of the most integral components of Peel’s model. 47
Other
interpretations, however, focus on the Community, Legitimacy, and Trust Prin-
ciples, and argue that they track modern community policing principles. 48
Keith Williams notes that modern police departments have adopted Peel’s Prin-
ciples wholesale in their mission statements and policies. 49
Professor Julia Scott
has discussed the applicability of Peel’s Principles to the post-9-11 law enforce-
ment reality. 50
Moreover, some commentators have argued that Peel’s Principles are dis-
connected from modern-day policing. One critic argues that because the prin-
ciples are too broad, they can be wielded in defense of undemocratic police
practices. 51
Although it is true that principles can be invoked in support of
45. See Julia E. Scott, Evolving Strategies: A Historical Examination of Changes in Principle, Author-
ity and Function To Inform Policing in the Twenty-First Century, 83 POLICE J. 126, 129-31 (2010)
(comparing and contrasting four different compilations of Peel’s Principles).
46. Id. at 132.
47. Id. at 143.
48. Id.
49. See Keith L. Williams, Peel’s Principles and Their Acceptance by American Police: Ending 175
Years of Prevention, 76 POLICE J. 97, 110-19 (2003) (comparing the modern mission state-
ments of five major U.S. police departments to Peel’s Principles).
50. See Tom Tyler, Police Discretion in the 21st Century Surveillance State, 2016 U. CHI LEGAL F. 579,
604 (tying Peel’s principles to recent research results that support the value of popular legit-
imacy of police); cf. Scott, supra note 45, at 155-60 (arguing that certain aspects of communi-
ty policing are not effective in post-9-11 America but recognizing the importance of a gener-
ally democratic approach to policing in this climate).
51. See Ian Loader, In Search of Civic Policing: Recasting the ‘Peelian’ Principles, 10 CRIM. L. &
PHIL. 427, 431 (2016) (noting that Bill Bratton invoked Peel in defense of stop-and-frisk, and
advocating a move away from the principles).
the yale law journal 126:2222 2017
2234
competing views or interpretations, just because some have invoked Peel to de-
fend questionable policing practices does not mean the principles are inherently
problematic, or should be abandoned altogether. Principles are fundamental
precisely because they capture core values, and consequently, they tend to be
expansive. Elaborations, interpretations, and more granular refinements are
necessary and welcome. Peel’s Principles acknowledge tension between the val-
ue of law enforcement and the liberty of those who are policed. That recogni-
tion is valuable, and awareness of it, as well as the important competing con-
cerns, provide important context for policing. Indeed, a case can be made that
Peel’s guideposts are arguably more necessary now to law enforcement agencies
nationwide in a diverse, eclectic American society faced with a more complex
set of structural problems.
i i . t h e p r o b l e m t h r o u g h d i f f e r e n t l e n s e s
Given the variety of stakeholders and perspectives on the state of police-
community relations in America, is Peel’s vision of foundational principles
practical? The framework assumes the existence of some common ground;
otherwise, the Trust, Equality and Community, Legitimacy, Restraint, and
Sanctity of Life principles cannot be realized. I argue that despite having differ-
ent perspectives, the public, police, and policymakers all share a common goal:
to establish a well-trained, managed, and accountable police force that effec-
tively guards public safety. To reach this common goal, public discussion must
be candid. All stakeholders must be willing to engage the legitimate concerns
of other interested groups and even to understand the origins of concerns that
they may initially regard with skepticism. In this Part, I consider this common
goal from the perspective of three key stakeholder groups. No group is a mono-
lith, and members of each of the groups described below may oppose the pro-
ject of police reform for a variety of reasons, or have different views about how
it could be accomplished or even whether it is necessary. The following per-
spectives represent some common concerns raised by certain of those groups
who have added their voices to the national discussion, but are by no means
comprehensive or exclusive.
A. A Minority Community Perspective
Many communities of color have deep concerns about the role of racial bias
in police interactions. 52
In many communities, there are also concerns about
52. See, e.g., Jennifer L. Eberhardt et al., Seeing Black: Race, Crime, and Visual Processing, 87 J.
PERSONALITY & SOC. PSYCHOL. 876, 890 (2004) (finding that unarmed, innocent African
policing through an american prism
2235
the frequency and degree of police encounters and about uses of force, 53
result-
ing in a significant trust deficit with their local law enforcement. 54
While this is
not true in every community, residents in many minority communities believe
that some police attribute suspicion merely because of one’s presence in a
neighborhood or one’s race. 55
Those who are stopped by police without justifi-
cation may face inconvenience, indignity, 56
or worse. At the same time, some of
these communities also suffer from high crime that threatens individuals’ or
even an entire neighborhood’s public safety.
In these communities, paradoxically, the need for concerted and aggressive
policing to reduce serious crime rates may exacerbate tensions, even if well-
intended. New York City’s stop-and-frisk policy, which was found unconstitu-
tional by a federal district court, 57
is one example of aggressive policing that
eroded community trust without making communities safer when compared to
less intrusive options. The violent crime rate in New York City was already in
decline when stop-and-frisk began around 2002. 58
That year, police stopped
Americans “may easily become the targets of intense visual surveillance by both police offic-
ers and the lay public” and that police officers “may tie individual Black targets to a group-
based suspicion”).
53. See, e.g., Phillip Atiba Goff et al., The Essence of Innocence: Consequences of Dehumanizing
Black Children, 106 J. PERSONALITY & SOC. PSYCHOL. 526, 540-41 (2014) (finding that implicit
dehumanization of black children predicts racially disparate police use of force against black
children); L. Song Richardson & Phillip Atiba Goff, Interrogating Racial Violence, 12 OHIO
ST. J. CRIM. L. 115, 126-28, 135-43 (2014) (demonstrating that even in the absence of inten-
tional animus, a white officer’s concern with appearing prejudiced can actually lead to racial-
ly disparate outcomes, and the perceived hypermasculinity of black males can lead to racial
violence).
54. See infra note 62.
55. In New York City, during the ascent of stop-and-frisk policies from 2004 to 2009, officers
checked a box indicating that the person stopped was in a “High Crime Area” more often
than any other reason (except “Furtive Movements”) for a stop. Floyd v. New York, 959 F.
Supp. 2d 540, 574 (S.D.N.Y. 2013). Being in a high crime area was, in fact, a weak indicator
of criminal activity, and “stops were 22% more likely to result in arrest if ‘High Crime Area’
was not checked.” Id. at 575.
56. Id. at 555 (“It is simply fantastic to urge that [a frisk] performed in public by a policeman
while the citizen stands helpless, perhaps facing a wall with his hands raised, is a ‘petty in-
dignity.’” (quoting Terry v. Ohio, 392 U.S. 1, 16-17 (1968))).
57. Id. at 667 (holding that NYPD’s stop-and-frisk practice violated the plaintiffs’ Fourth and
Fourteenth Amendment rights).
58. Max Ehrenfreund, Donald Trump Claims New York’s Stop-and-Frisk Policy Reduced Crime. The
Data Disagree., WASH. POST (Sept. 22, 2016), http://www.washingtonpost.com/news/wonk
/wp/2016/09/22/donald-trump-claims-new-yorks-stop-and-frisk-policy-reduced-crime
-the-data-disagree [http://perma.cc/233F-9H9R].
the yale law journal 126:2222 2017
2236
New Yorkers 97,296 times. 59
In 2011, at the peak of stop-and-frisk, the NYPD
made 685,724 stops. 60
Fifty-three percent of individuals stopped were black,
thirty-four percent were Latino, and eighty-eight percent were innocent. 61
Un-
necessary contacts recovered a statistically low ratio of weapons, but had pro-
nounced effects in minority communities, where conflict and mistrust between
the public and the police appeared intractable. 62
A 2014 Pew Research Center
survey found that seventy-one percent of white people expressed a great or fair
amount of confidence in local police to treat black and white people equally,
compared to just thirty-six percent of black people. 63
Because these stops were
not adequately calibrated to suspected wrongdoing, the policy deflected re-
sources and built distrust in ways that made both life in these communities and
policing more difficult. 64
Most of all, the policy did not make communities saf-
er. After the abrupt end of stop-and-frisk in 2013, the rate of homicide contin-
ued to decline as it had before and during the practice. 65
One first-person account illustrates the point. On his eighteenth birthday,
Nicholas Peart, a black teenager from New York, was stopped and frisked by
59. Stop-and-Frisk Data, N.Y.C.L. UNION, http://www.nyclu.org /content/stop-and-frisk-data
[http://perma.cc/HD49-MD5M].
60. Id.
61. Id.
62. Combined data from 2011 to 2014 that measures Americans’ confidence in police showed
that fifty-nine percent of white people have “a great deal or quite a lot of confidence in the
police,” compared with thirty-seven percent of black people. Frank Newport, Gallup Review:
Black and White Attitudes Toward Police, GALLUP (Aug. 20, 2014), http://www
.gallup.com/poll/175088/gallup-review-black-white-attitudes-toward-police.aspx [http://
perma.cc/X358-8ER5]. Tom Tyler, Jeffrey Fagan, and Amanda Geller’s work on police legit-
imacy has found that “people who have more contact with the police evaluate their later con-
tacts as less fair and lawful, in turn leading to a corrosive influence of contact upon the psy-
chological judgments underlying legitimacy.” Tom R. Tyler, Jeffrey Fagan & Amanda Geller,
Street Stops and Police Legitimacy: Teachable Moments in Young Urban Men’s Legal Socialization,
11 J. EMPIRICAL LEGAL STUD. 751, 776 (2014).
63. Bruce Drake, Divide Between Blacks and Whites on Police Runs Deep, PEW RES. CTR. FACT
TANK (Apr. 28, 2015), http://www.pewresearch.org/fact-tank/2015 /04 /28/blacks
-whites-police [http://perma.cc/AS24-AXHJ].
64. Tyler, Fagan, and Geller’s study further found that “higher legitimacy is related to lower lev-
els of criminal behavior and also demonstrate that cooperation with the police is greater
when legitimacy is high.” Tyler et al., supra note 63, at 775; see also Tom R. Tyler & Jeffrey
Fagan, Legitimacy and Cooperation: Why Do People Help the Police Fight Crime in Their Com-
munities?, 6 OHIO ST. J. CRIM. L. 231, 263 (2008) (finding in a study of New York City that
legitimacy, which is linked to the fairness of police procedures, shapes cooperation); Tom R.
Tyler & Jonathan Jackson, Popular Legitimacy and the Exercise of Legal Authority: Motivating
Compliance, Cooperation and Engagement, 20 PSYCHOL. PUB. POL’Y & L. 78, 89 (2014) (finding
that legitimacy has a role in shaping compliance and in building social capital).
65. Ehrenfreund, supra note 58.
policing through an american prism
2237
police and found himself on the ground with a gun pointed at him. 66
Police
checked his identification and then left. 67
On another occasion, two police
officers stopped, frisked, and handcuffed him. 68
They also took his key, tried to
enter his apartment, searched his shoes and socks, and then eventually let him
go. 69
According to Peart, these baseless stops “changed the way [he] felt about
the police,” because the possibility of being stopped and having a gun pointed
at him by an officer became an unwelcomed fact of life. 70
Limiting policing practices to lawful stops in minority neighborhoods,
however, is not the same as asking police to abandon those neighborhoods and
stop policing there altogether. My own personal experience reinforces this im-
portant distinction. I grew up in a section of the Bronx, New York where police
presence was essential. When I was in high school, another student working
just blocks from my apartment was killed in a store robbery. A deep concern
about public safety permeated the neighborhood. My mother regularly urged
me not to take the shortest route home because it required walking through a
long alleyway that was considered unsafe in the 1980s. The proximity to dan-
ger was real and required constant alertness. I understood then, as I do now,
the important role that police play in public safety.
At the same time, I also experienced the impact of unwarranted encroach-
ments on liberty. In the early 1980s, my close friend and I were stopped while
he was driving his car in front of his Bronx apartment building. When the
officer stopped the car with two black teens in a residential section of the
Bronx, he asked what we were doing there, and my friend indicated that he
lived in the building directly across from us. When we asked why we had been
stopped, the officer said that it was due to a broken taillight. The car, however,
had no broken light. Because of the absence of any lawful justification for the
stop, and in light of the factually unsupportable proffered justification, my
friend and I both drew the conclusion that our race motivated the stop.
As a lawyer, I have also represented residents of public housing who were
plaintiffs in a case seeking to require the New York Police Department to re-
spect their constitutional rights to remain free of illegal stops and arrests. 71
The
case challenged the practice of stopping public housing residents during so-
66. Nicholas K. Peart, Why Is the N.Y.P.D. After Me?, N.Y. TIMES (Dec. 17, 2011), http://www.ny
times.com/2011/12/18/opinion/sunday/young-black-and-frisked-by-the-nypd.html [http://
perma.cc/W6R7-AHYN].
67. Id.
68. Id.
69. Id.
70. Id.
71. Davis v. City of New York, 959 F. Supp. 2d 427, 430 (S.D.N.Y. 2013).
the yale law journal 126:2222 2017
2238
called “vertical sweeps”—police patrols in stairwells, hallways, and public spac-
es. 72
At the same time, my clients also wanted to be protected by law enforce-
ment—protected and respected. To my clients, there was nothing inconsistent
about these dual goals.
Minority communities share a desire for effective policing. Even where
crime is a problem, however, communities want law enforcement that is ade-
quately trained, supervised, or disciplined where appropriate, and any ap-
proach to policing that does not manifest respect for members of the commu-
nity or too readily and unnecessarily permits uses of force remains a concern.
B. A Law Enforcement Perspective
Like many minority communities, law enforcement officers typically also
want to increase public safety in the communities they serve. Most officers who
attend police academies around the nation do so to serve and protect. 73
Policing
is a dangerous and stressful job, which requires split-second life-and-death
judgments that can be difficult to assess in hindsight. Officers are the govern-
ment’s first-responders to the broadest array of social problems. When other
societal structures fail, the police must still answer calls for assistance. Moreo-
ver, the line officer does not create police policies, but must follow them and
implement those set by police leadership and politicians. If those policies prove
unpopular on the streets, line officers are the ones who bear the brunt of the
community’s response. On top of these challenges, the police live with the con-
sequences of pressures on law enforcement budgets for training and equip-
ment 74
and political pressures about crime trends and spikes. 75
72. This same practice had led to the fatal shooting of Akai Gurley in New York. See Joseph De
Avila & Rebecca Davis O’Brien, Shootings Stir Concerns About ‘Vertical’ Patrols, WALL ST. J.
(Feb. 5, 2016), http://www.wsj.com/articles/shootings-stir-concerns-over-vertical-patrols
-1454721849 [http://perma.cc/6JHZ-9LP5] (describing the circumstances of Akai Gurley’s
killing).
73. Anthony J. Raganella & Michael D. White, Race, Gender, and Motivation for Becoming a Police
Officer: Implications for Building a Representative Police Department, 32 J. CRIM. JUST. 501, 505-
06 (2004) (finding that most recruits in a small NYPD sample joined for altruistic and prac-
tical reasons).
74. See Office of Cmty. Oriented Policing Servs., The Impact of the Economic Downturn on Ameri-
can Police Agencies, U.S. DEP’T JUST. 12, 20 (Oct. 2011), http://www.ncdsv.org/images
/COPS_ImpactOfTheEconomicDownturnOnAmericanPoliceAgencies_10-2011.pdf [http://
perma.cc/3VSW-FRJ6] (analyzing how police department budget cuts have caused under-
staffing and failure to respond to certain service calls).
75. See, e.g., Pervaiz Shallwani & Mark Morales, NYC Officials Tout New Low in Crime, but Homi-
cide, Rape, Robbery Rose, WALL ST. J. (Jan. 4, 2016), http://www.wsj.com/articles/nyc-offi
cials-tout-new-low-in-crime-but-homicide-rape-robbery-rose-1451959203 [http://perma.cc
/D57X-PSVF]; Tasha Tsiaperas & Naomi Martin, Rising Crime, Heavy Criticism Won’t Get
policing through an american prism
2239
Many officers feel that the public does not understand all of the challenges
of their job. In a recent Pew survey of police officers, eighty-six percent of offic-
ers said that the public does not understand the challenges and risks they face
too well or at all. 76
Notably, forty-two percent of white and Hispanic officers
say the public does not understand the dangers at all, compared to twenty-nine
percent of black officers. 77
Former New York City Police Commissioner Bill
Bratton noted that the current climate is counterproductive: “My officers spent
much of the fall [of 2015] being accused of terrible, untrue things. They were
shouted at, spat upon, even assaulted. Two were assassinated for nothing more
than being cops.” 78
In many situations, the acts of one officer or a group of
officers are attributed to every officer. 79
And, through all of this, the responsi-
bility to protect the public does not cease.
Aware of the distance that exists between some police officers or depart-
ments and the communities they are sworn to protect, some law enforcement
officials across the country have supported the idea that they should not be
judged solely on crime statistics, but also on the quality of the relationships
their departments have with local communities. 80
At an October 2016 meeting
of the International Association of Chiefs of Police (IACP), Terrence Cunning-
ham, IACP president and police chief of Wellesley, Massachusetts, stated that
law enforcement needs to “acknowledge and apologize for the actions of the
past and the role that our profession has played in society’s historical mistreat-
ment of communities of color.” 81
He called this admission a “first step” and said
that “by working together, we can break this historic cycle of mistrust and
Dallas Police Chief Fired—Yet, DALL. MORNING NEWS (Apr. 1, 2016), http://www.dallasnews
.com/news/crime/2016/04 /01/rising-crime-heavy-criticism-wont-get-dallas-police-chief
-fired-yet [http://perma.cc/48A6-YTLQ].
76. Morin et al., supra note 10, at 27.
77. Id.
78. Police Commissioner Bratton’s Remarks at Queens Black History Month Discussion Panel,
N.Y. POLICE DEP’T NEWS (Feb. 24, 2015) [hereinafter Police Commissioner Bratton’s
Remarks], http://nypdnews.com/2015 /02/police-commissioner-brattons-remarks-at-queens
-black-history-month-discussion-panel [http://perma.cc/6FXL-MYVD].
79. See D.K., What the Cops Say, ECONOMIST (Apr. 27, 2015), http://www.economist.com
/blogs/democracyinamerica/2015 /04 /policing-america [http://perma.cc/32TW-LL4D] (in-
terviewing a police officer who says that “[t]he media take one incident and they magnify it
to the point where people think that must be all law enforcement and it really hurts offic-
ers”).
80. See Tom Jackman, U.S. Police Chiefs Group Apologizes for ‘Historical Mistreatment’ of Minori-
ties, WASH. POST (Oct. 17, 2016), http://www.washingtonpost.com/news/true-crime/w
p/2016/10/17/head-of-u-s-police-chiefs-apologizes-for-historic-mistreatment-of-minorities
[http://perma.cc/KU48-UKTG].
81. Id.
the yale law journal 126:2222 2017
2240
build a better and safer future for us all.” 82
On more than one occasion, former
Commissioner Bratton likewise acknowledged that “the relationship with the
police has been ruptured” in communities of color. 83
He has also stated that
“[t]he best parts of American history would have been impossible without the
police. Many of the worst parts of black history would have been impossible
without the police, too.” 84
These law enforcement officials have influence in their community, but not
all share their views. A 2017 Pew survey of police officers found that sixty per-
cent of white and Hispanic officers believe police have excellent or good rela-
tions with the black communities they serve, compared to thirty-two percent of
black officers. 85
Although perceptions of police-community relations vary
widely inside and outside of law enforcement, more than nine in ten officers
agree that it is important for an officer to “know the people, places, and the cul-
ture in the areas where they work in order to be effective at their job.” 86
This
knowledge should include training and reflection on the ways in which race
and tactics may affect or inform the police-community dynamic. The majority
of police are committed to doing their job well, and believe that understanding
the community is a key part of achieving that goal.
C. A Political Perspective
Politicians also want effective police in the communities they represent. Re-
sponding to the flashpoints between communities and police, many political
leaders across the country increasingly see the need to reassess the American
approach to policing. For example, from 2015-2016, thirty state legislatures
passed laws related to body-worn cameras, 87
and at least twenty-seven states
and the District of Columbia now have laws requiring mental health training
82. Id.
83. Police Commissioner Bratton’s Remarks, supra note 78.
84. Pervaiz Shallwani, Commissioner: NYPD Must Face Hard Truths, but so Must Critics, WALL
ST. J. (Feb. 24, 2015), http://www.wsj.com/articles/nypd-must-face-hard-truths-but-so
-must-its-critics-commissioner-william-bratton-says-1424822589 [http://perma.cc/W8QC
-YHE7].
85. Morin et al., supra note 10, at 53.
86. Id. at 48.
87. Body-Worn Cameras Interactive Graphic, NAT’L CONF. ST. LEGISLATURES (Aug. 30,
2016), http://www.ncsl.org /research/civil-and-criminal-justice/body-worn-cameras-inter
active-graphic.aspx# [http://perma.cc/VK5J-GSHB].
policing through an american prism
2241
for police, crisis intervention teams, or both. 88
These political leaders want
public safety achieved quickly. They must navigate the politics of racial fis-
sures, budgetary pressures, labor negotiations, 89
and the tragic incidents that
can dominate media cycles, mobilize protests, and threaten political offices. 90
One advocate for reform blends both law enforcement and political experience.
As a seven-term Congressman with thirty years of law enforcement experience,
Congressman Dave Reichert has expressed a feeling of urgency about police re-
form:
This has got to be a priority; otherwise this country is going to collapse
into some serious chaos in our cities—not just between police and
community, but divided by race, divided by economic status . . . . Let’s
not burn down the city but work together to go through the process to
find the truth, to hold people accountable, and improve the training
and our hiring process and go about this in the correct way. 91
I’ve had my throat cut with a butcher knife. I’ve been in situations
where it’s life and death. I’ve held the hand of a person who is grasping
for their last breath. I’ve collected body after body of little girls on the
street. I come at this from a whole different world. Unless you’re a cop,
you don’t get it. 92
When you have a diverse community, police officers need to be sen-
sitive to every one of those diverse issues in communities. They should
know how to interact, talk and get training in how to build a relation-
ship with people of all walks of life. 93
Another sign that there may be an emerging space for discussions about
ways to improve police-community relations came in the wake of the killing of
Philando Castile. Following the incident, Senator Tim Scott, a Republican and
one of two black members of the Senate in the 114th Congress, gave a speech
88. Law Enforcement Overview, NAT’L CONF. ST. LEGISLATURES (Dec. 16, 2016), http:// www.nc
sl.org /research/civil-and-criminal-justice/law-enforcement.aspx#2 [http://perma.cc/E764
-AUTM].
89. For a detailed history of police unions and their role in police reform, see Catherine L. Fisk
& L. Song Richardson, Police Unions, 85 GEO. WASH. L. REV. (forthcoming 2017).
90. Former New York City Mayor David Dinkins lost his reelection bid following racially
fraught incidents that amplified police-community tensions in Brooklyn. See Janet
Cawley, Giuliani Defeats Dinkins in Down-to-Wire New York Mayor’s Race, CHI. TRIB. (Nov. 3,
1993), http://articles.chicagotribune.com/1993-11-03 /news/9311030172_1_rudolph-giuliani
-mayor-david-dinkins-black-vote [http://perma.cc/CB4M-79WX].
91. Rachael Bade, The GOP’s Top Cop, POLITICO, May 14, 2015, at 1, 12.
92. Id.
93. Id.
the yale law journal 126:2222 2017
2242
on the Senate floor about his personal history with the police. 94
He asked his
colleagues to “[i]magine the frustration, the irritation, the sense of a loss of
dignity that accompanies each of those stops” and recounted how, even as an
elected official, he had been stopped seven times by law enforcement in one
year. 95
Kamala Harris, the former Attorney General of California and now
United States Senator from that state, is another politician who has demon-
strated her commitment to developing better law enforcement policies. Senator
Harris stated that “what we have to do is . . . get to the point of having a dia-
logue that understands that we have many common principles across these ra-
cial lines and start from that point . . . . [L]aw enforcement more than anybody
to do its job needs to have the trust of the community it polices.” 96
Strong po-
litical disagreements remain, but there is some indication of a bipartisan recog-
nition of the need for some reforms.
Although these and many other politicians have demonstrated commitment
to police reform, President Donald Trump has signaled that he favors aggres-
sive policing tactics, including what he has called nationwide stop-and-frisk. 97
Moreover, in November 2015, Senator Ted Cruz chaired a Senate Judiciary sub-
committee hearing titled “The War on Police,” during which he characterized
the Obama Administration’s treatment of police use of force as creating “a cul-
ture where the men and women of law enforcement feel under siege.” 98
Presi-
94. David Weigel, On the Senate Floor, Black GOP Senator Talks of Disrespect from Police, WASH.
POST (July 13, 2016), http://www.washingtonpost.com/politics/on-the-senate-floor-black -gop-senator-talks-of-disrespect-from-police/2016/07/13 /db67c7de-4949-11e6-bdb9-70168
7974517_story.html [http://perma.cc/G79B-ABHU].
95. Conor Friedersdorf, The Senate’s Only Black Republican Opens Up About Being Mistreated by
Cops, ATLANTIC (July 15, 2016), http://www.theatlantic.com/politics/archive/2016/07/the
-senates-only-black-republican-opens-up-about-being-mistreated-by-police/491435 [http://
perma.cc/8EXT-JS57].
96. Curbing Crime: When Being Tough Isn’t Enough, NAT’L PUB. RADIO (July 25,
2011), http://www.npr.org /2011/07/25 /138674201/curbing-crime-when-being-tough-isnt-e
nough [http://perma.cc/K852-JY6U].
97. See Katie Reilly, Donald Trump Proposes Nationwide Use of Stop-and-Frisk, TIME (Sept. 21,
2016), http://time.com/4503315 /donald-trump-stop-frisk [http://perma.cc/7L55-RGF6].
When the Southern District of New York found the policy unconstitutional in 2013,
de Blasio did not appeal the ruling and settled the case. Press Release, Office of the Mayor,
Mayor de Blasio Announces Agreement in Landmark Stop-And-Frisk Case (Jan. 30,
2014), http://www1.nyc.gov/office-of-the-mayor/news/726-14 /mayor-de-blasio-agreement
-landmark-stop-and-frisk-case [http://perma.cc/4QZV-U5RH].
98. Sylvan Lane, Ted Cruz: Obama Administration Is Waging a “War on Police,” DALL. MORNING
NEWS (Nov. 17, 2015), http://www.dallasnews.com/news/politics/2015 /11/17/ted-cruz-bar
ack-obama-war-on-police [http://perma.cc/NAF2-CBUX].
policing through an american prism
2243
dent Trump’s Attorney General Jeff Sessions further stated that “law enforce-
ment . . . has been unfairly maligned and blamed.” 99
Moving forward, policies under President Trump’s Administration are like-
ly to galvanize views on both sides of the national debate. Nonetheless, even
Attorney General Sessions says that he believes mutual respect between police
and communities is essential, and that community policing has proven to work
to some degree. 100
At a meeting with six law enforcement leaders in his
hometown, Speaker of the House Paul Ryan “said he doesn’t want to federalize
police practices,” but supported de-escalation training and preparation of
communities for incidents “when the worst happens.” 101
If politicians can agree
that the safety requires public approval—adherence to the Legitimacy and
Trust Principles—they should find themselves supporting those policies fa-
vored by the communities they serve.
i i i . t h e f u t u r e o f p o l i c e r e f o r m : c o m m o n g r o u n d
Effective and enduring reform requires all stakeholders to recognize that
they are working toward the same goals: promoting public safety effectively,
but not at the expense of civil rights or liberty. The recent attention on how to
balance these goals means that now it is even more important that we work
toward a new and more constructive paradigm—one built on trust. Doing so
requires stakeholders to resist the temptation to focus on their differences and
instead to recognize that they share the same goals.
I argue that returning to the Peelian principles, which frame policing as the
democracy-enforcing exercise it originally aspired to be, can help the various
stakeholders do this. Stakeholder groups disagree about the details, degree,
and method of reform. All groups, however, agree that certain democratic val-
ues—the Trust, Legitimacy, and Equality principles—are values that no stake-
holder should be willing to compromise. There is no doubt that different
groups define these concepts differently. But the more fundamental the values,
the less significant the differences might be. At the very least, these common
values provide a place where negotiations can begin.
99. Transcript: Jeff Sessions’s Prepared Remarks at His Attorney General Hearing, N.Y. TIMES (Jan.
10, 2017), http://www.nytimes.com/2017/01/10/us/politics/sessions-remarks-transcript
.html [http://perma.cc/2MJU-6N7X].
100. Id.
101. Frank Schultz, Police Chiefs, Rep. Ryan, Talk About Preventing Police Shootings, JANESVILLE
GAZETTE (Jan. 17, 2017), http://www.gazettextra.com/20170117/police_chiefs _rep_ryan
_talk_about_preventing_police_shootings [http://perma.cc/86G7-STLC].
the yale law journal 126:2222 2017
2244
President Obama’s Task Force on Twenty-First Century Policing embraced
this approach. The Task Force, established by an executive order, 102
was created
to strengthen community policing and enhance trust between law enforcement
and the communities they serve. Recognizing the interests at stake, the Task
Force brought together different groups—law enforcement professionals,
community leaders, and policy experts, among others—to provide a holistic
view of the today’s policing challenges. 103
The Task Force introduces pillars of
twenty-first century policing that significantly resemble Peel’s principles in the
nineteenth century. For example, the first “pillar” on which reform rests is
“trust and legitimacy.” 104
Another pillar is “[c]ommunity [p]olicing [and]
[c]rime [r]eduction.” 105
The Task Force recommends that rather than seeing
themselves as “warriors,” police should embrace a “guardian” mindset and set
out to protect their communities. 106
There are compelling case studies from cities around the country in which
successful policing improves public safety alongside legitimacy, trust and sanc-
tity of life. For example, following a major reform effort in 2013, Camden, New
Jersey saw a fifty-two percent drop in homicides over the last three years, 107
alongside a forty-two percent decrease in excessive force complaints. 108
Alt-
hough some residents still do not approve of the police and cite harassment for
minor infractions, others have reported increased interaction with the commu-
nity and safer streets. 109
In October 2016, police officers in Camden, New Jer-
102. Exec. Order No. 13,684, 79 Fed. Reg. 76,865 (Dec. 18, 2014).
103. Task Force on Policing, supra note 17, at v (listing a community organizer, police organization
leader, and legal scholars among task force members).
104. Id. at 9.
105. Id. at 41.
106. The warrior model of policing is a militaristic style that emphasizes battle, whereas the
guardian officer’s goal is to treat individuals humanely and with respect. See Kindy, supra
note 21 (discussing guardian officer training of thousands of new recruits outside of Seat-
tle); Task Force Policing Report, supra note 17, at 11 (“Law enforcement culture should em-
brace a guardian mindset to build public trust and legitimacy. Toward that end, police and
sheriffs’ departments should adopt procedural justice as the guiding principle . . . to guide
their interactions with the citizens they serve.”).
107. Demarco Morgan, Camden Police Emphasize Community Relations, Non-Lethal Force, CBS
NEWS (Jul. 8, 2016, 8:02 PM), http://www.cbsnews.com/news/camden-new-jersey-police
-emphasize-community-relations-non-lethal-force [http://perma.cc/XDA3-5R2T].
108. Tom Jackman, De-Escalation Training To Reduce Police Shootings Facing Mixed Reviews at
Launch, WASH. POST (Oct. 15, 2016), http://www.washingtonpost.com/local/public-safety
/de-escalation-training-to-reduce-police-shootings-facing-mixed-reviews-at-launch/2016
/10/14 /d6d96c74-9159-11e6-9c85-ac42097b8cc0_story.html [http:// perma.cc /7F5N-XBRS].
109. Kate Zernike, Camden Turns Around with New Police Force, N.Y. TIMES (Aug. 31,
2014), http://www.nytimes.com/2014 /09/01/nyregion/camden-turns-around-with-new-po
lice-force.html [http://perma.cc/W7AR-RLET].
policing through an american prism
2245
sey arrested a man, reportedly high on drugs, who was threatening another
man in a restaurant with a knife. 110
The responding officers could have quickly
resorted to the use of force, even deadly force, in these circumstances because
the man posed a danger to the public and the officers. The officers, however,
were trained in de-escalation techniques and instead walked with the man for
several city blocks, clearing pedestrians ahead of him and telling other re-
sponders to stand by, as he wildly waved his knife at them. 111
The officers de-
fused a tense situation and eventually arrested the man, employing some force
through the use of a taser, not a gun. 112
Had the police officers not been trained
to deescalate dangerous situations and used that training effectively in the field,
this could have been another incident where use of force resulted in a tragedy.
But here, the officers exercised restraint and focused on the sanctity of life. As
one law enforcement leader explained, restraint can reduce so-called “lawful
but awful” incidents where the use of force may be justified under the law but
tragic nevertheless. 113
Data are somewhat limited because these kinds of institutional and cultural
changes are notoriously difficult to measure. But there is evidence that legiti-
macy, trust, and equality will help officers do their jobs effectively. According to
a Police Executive Research Forum (PERF) national survey of 282 police agen-
cies that implemented some form of community policing, more than ninety
percent of agencies reported improved police-citizen cooperation, increased in-
volvement of citizens, increased information from citizen to police, and im-
proved citizen attitudes toward police. 114
Almost eighty percent of agencies re-
ported reduced police-citizen physical conflict. 115
One limitation of this survey
is that some departments have integrated some aspects of community policing
more fully than others. 116
But the community policing model has shown prom-
110. Jackman, supra note 108.
111. Id.
112. De-Escalation Training: Could These Tactics Diminish Racially Charged Police Shootings?,
INSIDE EDITION (Dec. 7, 2016, 4:07 PM EST), http://www.insideedition.com/head
lines/20330-de-escalation-training-could-these-tactics-diminish-racially-charged-police-sho
otings [http://perma.cc/98QA-GG4Z].
113. Chuck Wexler & Scott Thomson, Making Policing Safer for Everyone, N.Y. TIMES (Mar. 2,
2016), http://www.nytimes.com/2016/03 /02/opinion/making-policing-safer-for-everyone
.html [http://perma.cc/7HAW-DD3P].
114. Lorie Fridell, The Results of Three National Surveys on Community Policing, in COMMUNITY
POLICING: THE PAST, PRESENT, AND FUTURE 39, 44-45 (Lorie Fridell & Mary Ann Wycoff
eds., 2004).
115. Id.
116. Gary Cordner, The Survey Data: What They Say and Don’t Say About Community Policing, in
COMMUNITY POLICING: THE PAST, PRESENT, AND FUTURE, supra note 114, at 59, 65 (“[P]olice
agencies have tended to adopt a relatively modest version of community policing . . . . In-
the yale law journal 126:2222 2017
2246
ise and can be tailored to different community needs. In the following Part, I
describe three different approaches to community-centered police reforms, all
of which have had successes in reducing crime and improving trust.
i v. pat h w ay s t o r e f o r m
If stakeholders have some shared goals and common interests in reform
that reduce crime and improve trust, the next question is how to pursue those
reforms. Here, I analyze three pathways: a formal DOJ investigation, collabora-
tion with the DOJ Office of Community Oriented Policing Services (COPS)
office, and a do-it-yourself model.
The key stakeholders play varying roles under the different pathways, and
their roles and contributions underscore the need for democratic accountability.
For any reform to succeed, police leaders need to demonstrate why it is im-
portant and credibly articulate the benefits to the rank-and-file officers who
will be charged with incorporating the new practices into their everyday shifts.
Likewise, policy directives without effective training from able instructors and
measurement of adherence are unlikely to succeed. 117
The community also pro-
vides invaluable insight that may not be obvious to the police department or to
lawmakers dealing with policies on paper. Engagement with the community
through surveys, town halls, and meetings can rebuild trust and increase the
probability that communities will remain engaged in developing solutions, co-
operating in implementation, and focusing on effectiveness. Durable reform
requires the buy-in of effected constituencies to sustain and advance improve-
ments in both policing and police-community relations.
As I discuss further below, although all of these pathways require buy-in
from multiple stakeholders, one distinction between the first pathway (a DOJ
investigation) and the latter two (collaboration with the DOJ COPS office and
the do-it-yourself pathway) is which stakeholders initiate the reform effort and
what their respective roles may be. The former pathway typically—though, not
always—relies on the DOJ to initiate the effort, and the latter two pathways
typically rely on other stakeholders to initiate the effort. Writing at the start of
the Trump Administration, it is difficult to predict precisely what his admin-
istration will do with respect to police reform. But there are some early indica-
tions that under his administration, the DOJ will be less likely to initiate inves-
creases in the implementation of internal organizational aspects of COP have outpaced the
adoption of most forms of citizen participation.”).
117. Re-Engineering Training on Police Use of Force, POLICE EXECUTIVE RES. F. 61 (Aug.
2015), http://www.policeforum.org /assets/reengineeringtraining1.pdf [http://perma.cc
/AAC5-2DTD] (describing how the credibility of trainers is one of the most important com-
ponents of training).
policing through an american prism
2247
tigations to catalyze reforms. 118
The Trump Administration’s approach will
prove significant, too, for the COPS collaborative reform pathway since that
approach is also driven by the DOJ. If the DOJ retreats, consistent with some
early statements of the Administration’s leadership, then the do-it-yourself
pathway—which depends on other stakeholders recognizing their shared inter-
est in reform—will become more important.
A. DOJ Pattern-or-Practice Investigations: The Challenge and Opportunity
In the Obama Administration, the DOJ invested significant resources into
pattern-or-practice investigations. Across the country, the DOJ investigated po-
lice departments to determine if they were engaged in a pattern or practice of
constitutional violations and, if so, to require negotiated reforms to their polic-
ing practices in order to better defend values of equality, accountability and
community engagement and safety. 119
Since his appointment, Attorney Gen-
eral Sessions’s views on the topic have become more concrete. In its consent de-
cree negotiations with Baltimore, the DOJ requested a ninety-day delay, 120
cit-
ing an attorney general memorandum that, among other things, states, “It is
not the responsibility of the federal government to manage non-federal law en-
forcement agencies.” 121
The DOJ pattern-or-practice cases “begin with investi-
gations of allegations of systemic police misconduct and, when the allegations
118. At his confirmation hearing as nominee for Attorney General, Senator Jeff Sessions stated
that consent decrees are “not necessarily a bad thing,” but that “these lawsuits undermine
the respect for police officers and create an impression that the entire department is not do-
ing their work consistent with fidelity to law and fairness, and we need to be careful before
we do that.” John Fritze, Jeff Sessions Voices Concern About Uses of Consent Decrees for Police,
BALT. SUN (Jan. 10, 2017), http://www.baltimoresun.com/news/maryland/politics/blog/bal
-jeff-sessions-voices-concern-about-use-of-consent-decrees-for-police-20170110-story.html
[http://perma.cc/3727-Q5VZ]; see also Kevin Rector, Trump, the Self-Styled ‘Law and Order’
Candidate, Could Change Tone on Policing, Federal Oversight, BALT. SUN (Nov. 9.
2016), http://www.baltimoresun.com/news/maryland/politics/bs-md-trump-criminal-just
ice-20161109-story.html [http://perma.cc/DHU9-3PUX] (speculating that a Trump Ad-
ministration would decrease enforcement of consent decrees).
119. How Department of Justice Civil Rights Division Conducts Pattern-or-Practice Investigations, U.S.
DEP’T JUST., http://www.justice.gov/file/how-pp-investigations-work/download [http://
perma.cc/N4PX-5DEM].
120. Kevin Rector, Justice Department Asks Court for 90-day Pause to ‘Review and Assess’ Baltimore
Police Consent Decree, BALT. SUN (Apr. 3, 2017), http://www.baltimoresun.com/news/mary
land/crime/bs-md-ci-consent-decree-pause-20170403-story.html [http://perma.cc/REA2
-MX2T].
121. Memorandum from the Attorney General for Heads of Department Components and Unit-
ed States Attorneys (Mar. 31, 2017), http://www.justice.gov/opa/press-release/file/954916
/download [http://perma.cc/JNX4-EEUZ].
the yale law journal 126:2222 2017
2248
are substantiated, end with comprehensive agreements designed to support
constitutional and effective policing and restore trust between police and com-
munities.” 122
These DOJ investigations are one nexus where the stakeholders
discussed in Part II collide and collaborate. Several times during the Obama
Administration, following a police shooting or fatality of a civilian in custody,
the tragedies became both local and national media events. Families and com-
munity leaders protested and called for an investigation. 123
In some cases, the
community and/or political leaders may call for police resignations; in other
cases, political leaders may even find themselves under similar pressure. 124
And, in a few of these cases, the DOJ opened an investigation. 125
Some political leaders have invited a DOJ investigation in response to polic-
ing controversies. In Baltimore, then-Mayor Stephanie Rawlings-Blake stated
that the DOJ’s federal review would help to reform her city’s police depart-
122. Civil Rights Div., The Civil Rights Division’s Pattern and Practice Police Reform Work:
1994-Present, U.S. DEP’T JUST., http://www.justice.gov/crt/file/922421/download [http://
perma.cc/2HJ8-A46Y].
123. See Leonard Greene & Victoria Bekiempis, Family of Ramarley Graham, 18-Year-Old Shot by a
Cop in the Bronx, Tells U.S. Attorney’s Office To Quit the ‘Foot Dragging,’ N.Y. DAILY NEWS
(Feb. 1, 2016, 6:41 PM), http://www.nydailynews.com/new-york/bronx/family-demands -justice-bronx-police-shooting-victim-article-1.2516127 [http://perma.cc/2PTN-WBJ7];
Jaeah Lee, The Texas Trooper Who Pulled Over Sandra Bland Was Just Indicted, MOTHER JONES
(Jan. 6, 2016), http://www.motherjones.com/mojo/2016/01/texas-trooper-sandra-bland-in
dicted-perjury-encinia [http://perma.cc/32M7-W7NX]; David Lohr, Alton Sterling’s Family
Demands Action from Baton Rouge Officials, HUFFINGTON POST (Jan. 4, 2017, 7:07 PM
EST), http://www.huffingtonpost.com/entry/alton-sterling-protesters-demand-action_us
_57eae080e4b024a52d2b5514 [http://perma.cc/Z9DF-2FDP].
124. See Emily Harris, Charlotte Protesters Demand Mayor’s Resignation over Black Man’s Slaying,
REUTERS (Sept. 27, 2016, 12:01 PM EST), http://www.reuters.com/article/us-usa-police
-charlotte-idUSKCN11X0A0 [http://perma.cc/BAB5-V3H9] (reporting on community pro-
tests for the resignations of the police chief, mayor, and lawmakers following a police killing
of Keith Scott); Matt Pearce, Ferguson Police Chief Steps Down; Official Calls It ‘Long Overdue,’
L.A. TIMES (Mar. 11, 2015), http://www.latimes.com/nation/la-na-ferguson-police-chief
-20150311-story.html [http://perma.cc/8JZ8-JT6T] (reporting the resignation of the Fergu-
son police chief and city manager).
125. For example, the DOJ opened an investigation in Ferguson following Michael Brown’s kill-
ing, and in Baltimore after Freddie Gray died in police custody. See Press Release, U.S. Dep’t
of Justice, Justice Department Announces Findings of Two Civil Rights Investigations
in Ferguson, Missouri, http://www.justice.gov/opa/pr/justice-department-announces-find
ings-two-civil-rights-investigations-ferguson-missouri [http://perma.cc/YAN8-Q352] (an-
nouncing results of civil rights investigations into the Ferguson police department and the
shooting of Michael Brown); Mark Puente, After Freddie Gray Death, U.S. Starts Civil Rights
Probe of Baltimore Police, BALT. SUN (May 8, 2015), http://www.baltimoresun.com/sports/bs
-md-justice-announce-20150508-story.html (discussing the DOJ’s probe of the Baltimore
Police Department following Freddie Gray’s death).
policing through an american prism
2249
ment, 126
and even her political opponents agreed that a “binding federal re-
view” would “repair” the “fractured relationship” between police and the mi-
nority community. 127
Likewise, a spokesman for Chicago Mayor Rahm Eman-
uel welcomed the DOJ’s engagement to “restore trust” in the Chicago Police
Department and improve the city’s “system of police accountability.” 128
Indeed,
as part of its investigation, the DOJ engages with the public, civic and religious
leaders, police officers, both rank-and-file and leadership, police unions, and
activists. 129
The first stage of the DOJ’s investigation is the preparation of a findings
report, which assesses systemic deficiencies that contribute to unconstitutional
patterns or practices in the police department. 130
Following a findings report,
the DOJ typically seeks a consent decree under court order. The decree is often
grounded in community policing principles. Echoing Peel, the DOJ has ex-
plained, “Community policing is democracy in action. It requires the active
participation of local government, civic and business leaders, public and private
agencies, residents, churches, schools, and hospitals. All who share a concern
for the welfare of the neighborhood should bear responsibility for safeguarding
that welfare.” 131
126. See Luke Broadwater, Baltimore Mayor Seeks Federal Investigation of Police Department,
BALT. SUN (May 6, 2015), http://www.baltimoresun.com/news/maryland/politics/bs-md-ci
-doj-partnership-20150506-story.html [http://perma.cc/FPM4-437C] (reporting that the
mayor had asked the Justice Department to conduct a full-scale civil rights investigation).
127. Id. Commenting on a federal court’s entry of a Consent Decree requiring appointment of a
monitor and judicial supervision of the agreement, which sets out a framework for reform of
the Baltimore Police Department, Mayor Pugh stated that the Judge’s approval was “a great
victory for the citizens of Baltimore as well as our Police Department.” Kevin Rector, Federal
Judge Approves Baltimore Policing Consent Decree, Denying Justice Department Request for Delay,
BALT. SUN (Apr. 7, 2017), http://www.baltimoresun.com/news/maryland/baltimore-city/bs
-md-ci-consent-decree-approved-20170407-story.html [http://perma.cc/E32J-WCYB].
Similarly, Police Commissioner Kevin Davis said, “We expect that this process will lead us to
the goal we all share: a Baltimore Police Department that leads the progress of the policing
profession.” Id.
128. Sari Horwitz, Ellen Nakashima & Wesley Lowery, Justice Department Will Investigate Practices
of Chicago Police, WASH. POST (Dec. 6, 2015), http://www.washingtonpost.com/news/post
-nation/wp/2015 /12/06/justice-department-will-launch-investigation-into-practices-of-chi
cago-police [http://perma.cc/99UG-FEZH].
129. Civil Rights Div., Investigation of the Baltimore Police Department, U.S. DEP’T JUST. 4 (Aug.
10, 2016), http://www.justice.gov/opa/file/883366/download [http://perma.cc/TVF6
-ZMT4].
130. Id.
131. Bureau of Justice Assistance, Understanding Community Policing: A Framework for Action, U.S.
DEP’T JUST. 4 (1994), http://www.ncjrs.gov/pdffiles/commp.pdf [http://perma.cc/F7TE
-5LQL].
the yale law journal 126:2222 2017
2250
One example where the DOJ promoted this approach to policing was in
Ferguson, Missouri. According to the DOJ’s findings report in Ferguson, offic-
ers had targeted the African American community for years as a way to gener-
ate revenue for the city 132
—an approach wholly at odds with community polic-
ing and equality. The consent decree that the DOJ subsequently entered into
with the City of Ferguson required the police to engage with the community in
a different way. The DOJ met with residents before issuing the findings report,
and residents expressed their concerns to the city at city town halls. 133
Because
consent decree negotiations between the city and DOJ were private, the com-
munity placed special emphasis on the public fairness hearing before the con-
sent decree was approved. 134
Although the City Council initially voted to
amend the consent decree plan, the DOJ filed a lawsuit against Ferguson, pres-
suring the City Council to approve the measure. 135
While the process in Fergu-
son was not the picture of collaboration, stakeholder participation built buy-in
and momentum. Even Ferguson’s attorney, while still refusing to acknowledge
that the department’s conduct was illegal, said it was best for the city to turn its
attention to reforms rather than litigation. 136
Cleveland is another example where the DOJ has drawn upon Peel’s princi-
ples. The DOJ findings report acknowledged that the Cleveland Police De-
partment made important changes to its use-of-force policies, but also provid-
ed specific ways in which Cleveland could continue to move forward with
improvements to its policies and training. 137
In the settlement agreement that
132. See Civil Rights Div., Investigation of the Ferguson Police Department, U.S. DEP’T JUST. 6 (Mar.
4, 2015), http://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03
/04/ferguson_police_department_report_1.pdf [http://perma.cc/ZL8M-8WH8] (“The
confluence of policing to raise revenue and racial bias thus has resulted in practices that not
only violate the Constitution . . . but also undermine community trust.”).
133. Camille Phillips, Activists, Ferguson Residents, Call for Public Hearing Once Consent Decree Is
Filed, ST. LOUIS PUB. RADIO (Dec. 3, 2015), http://news.stlpublicradio.org /post/activists
-ferguson-residents-call-public-hearing-once-consent-decree-filed [http://perma.cc/982E
-3RJD].
134. Id.
135. Laura Wagner, Ferguson City Council Accepts Consent Decree Worked Out with Justice
Department, NAT’L PUB. RADIO (Mar. 15, 2016), http://www.npr.org /sections/thetwo
-way/2016/03 /15 /470598733 /ferguson-city-council-accepts-deal-with-justice-department
[http://perma.cc/JH7B-XUFH].
136. Rachel Lippman, Federal Judge Approves Ferguson Consent Decree, ST. LOUIS PUB. RADIO (Apr.
19, 2016), http://news.stlpublicradio.org /post/federal-judge-approves-ferguson-consent-de
cree [http://perma.cc/DA7G-TMG4].
137. See Civil Rights Div., Investigation of the Cleveland Division of Police, U.S. DEP’T JUST. 1 (Dec.
4, 2014), http://www.justice.gov/sites/default/files/opa/press-releases/attachments/2014 /12
/04/cleveland_division_of_police_findings_letter.pdf [http://perma.cc/V9MQ-ZE59]
policing through an american prism
2251
followed, the Cleveland Police Department agreed to policies that require offic-
ers to “use de-escalation techniques whenever possible and appropriate, before
resorting to force,” 138
train officers to recognize individuals suffering from
medical or mental conditions, 139
and create a Mental Health Response Adviso-
ry Committee. 140
All of these provisions foreground the lives of community
members and, as stated in the second sentence of the settlement agreement,
view “a strong relationship that is built on mutual trust and respect” as neces-
sary to achieving the goal of officer and public safety. Mayor Frank Jackson had
a key role in driving the process, and the community has a large role moving
forward. Mayor Jackson called on the DOJ to investigate the police department
and has the trust of community leaders, one of whom stated that “[i]f Jackson
hadn’t been around to grab the bull by the horns, this agreement might not
have happened.” 141
While negotiating the consent decree, the city solicited
community input through written reports and listening sessions. 142
The nego-
tiated consent decree calls for a thirteen-member Community Police Commis-
sion with representatives from corporate boardrooms, churches, the police un-
ion, a professional association of black officers, and community groups. 143
Some community members contend that the consent decree should not have
been signed until the judge heard directly from stakeholders, 144
but a promi-
nent civil rights attorney praised the deal and urged patience and persis-
tence. 145
The DOJ investigations come with their own challenges, however. The
process can be disruptive to local police forces, as these investigations are time-
(noting that the department had “taken some steps to improve the Division’s use of force
policies and procedures” but still had a “need for sustainable reform”).
138. Settlement Agreement at 12, United States v. City of Cleveland, No. 1:15-cv-01046-SO (N.D.
Ohio May 26, 2015) (emphasis added), http://www.clearinghouse.net/chDocs/public/PN
-OH-0008-0008.pdf [http://perma.cc/DQ4S-NG8K].
139. Id.
140. Id. at 34.
141. Leila Atassi, Cleveland Consent Decree on Police Use of Force Could Define Mayor Frank Jackson’s
Legacy, CLEVELAND.COM (May 28, 2015, 6:45 PM), http://www.cleveland.com/cityhall/index
.ssf/2015 /05 /cleveland_consent_decree_on_po.html [http://perma.cc/XH4V-2394].
142. Eric Heisig, Federal Judge Approves Cleveland Consent Decree, Calls It a ‘Good, Sound Agree-
ment,’ CLEVELAND.COM (June 12, 2015, 11:23 AM), http://www.cleveland.com/court-justice
/index.ssf /2015 /06 /federal _judge_overseeing_cleve.html [http://perma.cc/P662-853Z].
143. Henry J. Gomez, Cleveland Consent Decree Provides Blueprint for Long-Elusive Police Reforms:
The Big Story, CLEVELAND.COM (May 26, 2015, 9:17 PM), http://www.cleveland.com/metro
/index.ssf/2015 /05 /cleveland_consent_decree_provi.html [http://perma.cc/JX2V-SN4M].
144. Heisig, supra note 142.
145. Gomez, supra note 143.
the yale law journal 126:2222 2017
2252
consuming. For example, investigations can last well over a year, 146
and the set-
tlement negotiation process may proceed for many months after that. 147
Addi-
tionally, ongoing law and order obligations do not cease while the investigation
proceeds, though department leadership must divide its attention to meet the
considerable demands of the investigation. Not only is that investigation ex-
pensive, but remedies can also be expensive to implement and require signifi-
cant additional funding, as they often entail multi-year commitments, includ-
ing data collection, a monitoring team, and new infrastructure. 148
These costs
must be weighed in context, including the cost of maintaining the status quo.
Significantly, the immediate future for DOJ investigations under President
Trump is uncertain. The U.S. Attorney General has discretion over whether to
initiate and pursue these investigations. 149
As mentioned above, there are early
reports that Attorney General Jeff Sessions may have little appetite to do so. 150
At the “The War on Police: How the Federal Government Undermines State
and Local Law Enforcement” Senate Judiciary Committee meeting, Senator
Sessions stated, “There is a perception, not altogether unjustified, that this De-
partment, the Civil Rights Division, goes beyond fair and balanced treatment,
but has an agenda. That’s been a troubling issue for a number of years, frank-
146. See, e.g., Civil Rights Div., supra note 129, at 14.
147. For example, the Newark Police Department reached a settlement almost two years after the
findings report was issued. Press Release, U.S. Dep’t of Justice, Information about the
Department of Justice’s Consent Decree with the Newark Police Department (Feb. 24,
2017), http://www.justice.gov/usao-nj /information-about-department-justice-s-consent-de
cree-newark-police-department [http://perma.cc/57ZV-LYPD].
148. See Simone Weichselbaum, The Problems with Policing the Police, TIME, http://
time.com/police-shootings-justice-department-civil-rights-investigations [http://perma.cc
/L63E-QQLX] (“[O]fficials have railed at the high cost of the Justice Department’s reform
plans, including the multi-million-dollar fees paid to the monitors who make sure local offi-
cials comply with federal mandates.”).
149. 42 U.S.C. § 14141 (2016).
150. Jonathan Smith, former head of the DOJ’s Special Litigation Section, which handles pattern
and practice investigations, has stated that he predicts the new Trump Administration DOJ
will reverse some recently adopted legal positions and “withdraw to nonpartisan and uncon-
troversial investigations.” Alice Speri, As Attorney General, Jeff Sessions Would Destroy the
DOJ’s ‘Crown Jewel,’ INTERCEPT (Jan. 10, 2017, 10:07 AM), http://theintercept.com/2017/01
/10/as-attorney-general-jeff-sessions-would-destroy-the-dojs-crown-jewel [http://perma.cc
/G2L5-UZ6N]. Law Professor Jonathan Turley forecasted, “The Justice Department is likely
to be one of the most transformed departments in the cabinet in a Trump administration,
and with an Attorney General Sessions, you’d obviously see a very strong law-and-order fig-
ure at the top.” Eric Lichtblau, Jeff Sessions, as Attorney General, Could Overhaul Department
He’s Skewered, N.Y. TIMES (Nov. 18, 2016), http://www.nytimes.com/2016/11/19/us/politics
/jeff-sessions-donald-trump-attorney-general.html [http://perma.cc/TDY3-F257].
policing through an american prism
2253
ly.” 151
Even if the DOJ no longer prioritizes pattern-or-practice investigations
during President Trump’s administration, stakeholders and leaders committed
to reform can nevertheless pursue the other pathways, and they can mine exist-
ing consent decrees from previous DOJ investigations for core subject matter
areas for those reforms. Progress will depend on the will and creativity of these
local and state law enforcement leaders working together with their communi-
ties and political leaders.
B. DOJ Community-Oriented Policing Service Collaborative Review
Even in the absence of pattern-or-practice investigations, the DOJ has an-
other mechanism for supporting police reform efforts. The DOJ’s COPS works
with law enforcement to build trust with local communities and implement po-
licing best practices through technical assistance and a collaborative review
process. 152
The COPS model is distinct from the pattern-or-practice investigative au-
thority of the DOJ in a few important respects. In a COPS collaborative review,
participation is voluntary and is initiated by police departments rather than the
DOJ, which means that these reviews only happen when police departments
recognize that they have a shared interest with the DOJ and other stakeholders
in reform. 153
In COPS reviews, the DOJ’s recommendations are not binding,
but police departments must demonstrate a commitment to significant re-
form. 154
Thus, whereas some perceive the DOJ’s formal investigations as fun-
damentally critical of police, COPS reviews are often seen as more collaborative
with police.
In COPS reviews, the COPS office conducts a detailed assessment of the
department, including data and records analysis, interviews, observation, and
research. 155
The COPS office then issues a series of assessment reports and rec-
151. Subcomm. on Oversight, Agency Action, Federal Rights and Federal Courts, Online Video:
The War on Police: How the Federal Government Undermines States and Local Law Enforcement,
U.S. SENATE (Nov. 17, 2015), http://www.judiciary.senate.gov/meetings/the-war-on-po
lice-how-the-federal-government-undermines-state-and-local-law-enforcement [http://
perma.cc/NTJ8-YWMQ].
152. Office of Cmty. Oriented Policing Servs., Collaborative Reform Initiative for Technical Assis-
tance, U.S. DEP’T JUST. (June 2016), http://cops.usdoj.gov/pdf/technical_assistance.pdf
[http://perma.cc/6SZY-SNM2].
153. Id.
154. Id.
155. Id.
the yale law journal 126:2222 2017
2254
ommendations over the course of many months. 156
COPS collaborative reform
is specifically focused on issues that may affect public trust. 157
Understanding that the COPS office can provide support for those who
seek reform, Ed Lee, the mayor of San Francisco and the city’s former police
chief, began the collaborative reform process in February 2016. 158
The assess-
ment process included dialogue with community members in listening ses-
sions, forums, and one-on-one interviews. 159
The mayor’s office and govern-
mental representatives, as well as public agencies, provided staff and resources
to the process as well. 160
The final assessment report issued in October 2016
found racial disparities in stops 161
and uses of deadly force, 162
as well as a lack
of accountability measures. 163
After the report was released, Mayor Lee an-
nounced that the city would “accept and implement every single recommenda-
tion.” 164 The recommendations cover all of the Peelian principles, from trust—
“[San Francisco Police Department] should take an active and direct role in
community engagement at the neighborhood level” 165
—to restraint—“[t]he
SFPD should work with the Police Commission to obtain input from the
stakeholder groups and conduct an after-action review [of the use-of-force pol-
icy] . . . to identify ways to improve input and expedite the process in the fu-
ture for other policy development.” 166
As noted in the assessment report, “[t]he
156. Id.
157. Id.
158. Vivian Ho, U.S. Justice Department Urges Changes in SFPD After Fatal Shootings, S.F. CHRON.
(Oct. 12, 2016), http://www.sfgate.com/bayarea/article/U-S-Justice-Department-urges
-changes-in-SFPD-9966886.php [http://perma.cc/D9MV-MV6B]; Mayor Lee Administers
Comprehensive Police Department Reforms, OFF. MAYOR, http://sfmayor.org /police-reforms
[http://perma.cc/5SGS-E76E].
159. Office of Cmty. Oriented Policing Servs., Collaborative Reform Initiative: An Assessment of the
San Francisco Police Department, U.S. DEP’T JUST. 3 (Oct. 2016) [hereinafter San Francisco Re-
form], http://ric-zai-inc.com/Publications/cops-w0817-pub.pdf [http://perma.cc/4F8H -ELV7].
160. Id.
161. Id. at 71.
162. Id. at 37.
163. Id. at 245.
164. James Queally & Joe Mozingo, Feds Fault San Francisco Police for Violence Against Minorities
and Recommend 272 Reforms, L.A. TIMES (Oct. 12, 2016), http://www.latimes.com/local/la
now/la-me-ln-san-francisco-police-bias-20161012-snap-story.html [http://perma.cc/SF2X
-TF4B].
165. San Francisco Reform, supra note 159.
166. Id. at 38.
policing through an american prism
2255
input of multiple persons across the range of San Francisco communities con-
tributed immensely to the assessment process.” 167
There are other examples of the value of the COPS pathway for some juris-
dictions. The Las Vegas Police Department (LVPD) was the first agency to
complete the collaborative review process, which it first initiated in 2011. 168
In
the COPS Office’s final report of the department, investigators found that the
LVPD had implemented ninety percent of the DOJ’s seventy-five recommenda-
tions, which included new use-of-force policies and de-escalation training. 169
Police killings have also decreased from twenty-five in 2010 to sixteen in 2014, a
decline that many attribute to the reform effort. 170
Even so, COPS reviews require substantial investments of time and super-
visor attention and recommendations typically require local commitment to
provide resources for reforms. This pathway may endure as DOJ faces some
pressure to render some assistance where future flashpoints may erupt. Even if
President Trump’s DOJ shrinks its role in initiating formal investigations, that
does not necessarily mean that it would also shrink its role in supporting COPS
reviews, though the future in this area is also uncertain.
C. Do-It-Yourself Pathway
Observing the impact of use-of-force incidents on other jurisdictions, po-
lice departments and political leadership may decide to take steps to make sure
their department is embracing best practices. These jurisdictions may seek to
avoid a Ferguson moment. Other jurisdictions may find themselves at the cen-
ter of use-of-force flashpoints and will have to respond to the facts on the
ground with or without DOJ support. Others may face litigation or threats of
litigation and may choose or be ordered to resolve the litigation. Reform is pos-
sible in these situations. Often the impetus for change emerges from a crisis
when concerns from various stakeholders boil over. These tragedies—as well as
the public outcry and the threat of a DOJ investigation and/or private litiga-
tion—often spur a police force to undertake reform.
167. Id. at 3.
168. Adam Geller, Could Training Stem Police Shootings? Las Vegas Is a Test, LAS VEGAS SUN
(June 20, 2015), http://lasvegassun.com/news/2015 /jun/20/could-training-stem-police
-shootings-las-vegas-tes [http://perma.cc/V3LQ-MLDR].
169. Press Release, Office of Cmty. Oriented Policing Servs., Justice Department Releases the Fi-
nal Report on the Collaborative Reform Process with Las Vegas Metropolitan Police De-
partment (May 21, 2014), http://www.cops.usdoj.gov/Default.asp?Item=2718 [http://
perma.cc/7VYY-Q5Q8].
170. Geller, supra note 168.
the yale law journal 126:2222 2017
2256
Without these catalysts or outside pressure, it may be difficult for some po-
lice departments to invest in the demanding process of reform, though some
accept this challenge. Acknowledging the need for change without such a clear
impetus is hard, but the frequency of videos of fatalities, concerns about bias,
and outcry in many communities call for an honest assessment of whether re-
form is needed. Given the likelihood that the DOJ may not be as proactive in
initiating investigations in the Trump Administration as it was in the Obama
Administration, communities that acknowledge the need for reform may
choose to be self-starting. Even during a Trump Administration, stakeholders’
shared interests can endure, and the friction exposed or created by the recent
election may create an even greater need to strengthen trust between police and
communities.
For example, in Chicago, the DOJ issued a report finding constitutional vi-
olations in the Chicago Police Department prior to President Trump’s inaugu-
ration. Mayor Rahm Emanuel expressed his commitment to reform, regardless
of the new administration’s policies, stating that “the Chicago Police Depart-
ment . . . is already on the road to reform, and there are no U-turns on that
road.” 171
There is uncertainty but also the possibility of embracing promising
models of reform with or without a federal impetus.
There are communities that have already been successful in rolling out re-
form without outside pressure from DOJ. For example, in Dallas, the police
department self-initiated department reforms that dramatically transformed its
practices. 172
Historically, Dallas “had a higher per-capita rate of police-involved
shootings than New York, or Los Angeles.” 173
After the 2012 police shooting of
James Harper and the protests that followed, Chief David Brown announced
the Dallas Police Department’s commitment to community policing reforms. 174
More trainings, new de-escalation policies, and the release of police data led to
a decrease in both crime rates and excessive force complaints. 175
While depart-
ment leadership advanced reform, the community input was also an important
factor.
171. Dan Hinkel, Bill Ruthhart & David Heinzmann, Justice Report Questions Emanuel Police
Changes, CHI. TRIB. (Jan. 13, 2017), http://www.chicagotribune.com/news/local/politics
/ct-chicago-police-justice-department-rahm-emanuel-20170113-story.html [http://perma.cc
/RXT5-828T].
172. Christopher I. Haugh, How the Dallas Police Department Reformed Itself, ATLANTIC
(July 9, 2016), http://www.theatlantic.com/politics/archive/2016/07/dallas-police/490583
[http://perma.cc/GM77-MSDQ].
173. Id.
174. Id.
175. Id.
policing through an american prism
2257
Even well-oiled organizations ask for help, such as for outsiders to check on
their practices. Just as the DOJ can provide an outside perspective on best prac-
tices, lawyers and consultants can also provide an objective assessment of de-
partmental policies and procedures. Private litigants can also act as catalysts for
change. 176
Recently, the NYPD issued a report discussing its efforts to reform
its “Numbers-Driven Organization,” including the “stop, question and frisk”
policies challenged in litigation, through community-focused engagement and
targeting resources toward known, serious crimes. 177
The NYPD also agreed to
pay a seventy-five million dollar settlement in a lawsuit alleging that hundreds
of thousands of summonses were issued without a legal basis. 178
In that case,
private litigants pushed for reforms and negotiated a settlement that requires
the city to reiterate its ban on arrest quotas. 179
Politicians, citizens, and de-
partments have actionable roles to play in reform, which is both possible and
necessary at the local and state level.
The Police Executive Research Forum (PERF), an independent nonprofit
police research and policy organization comprised of police officials, academics,
and federal government leaders, is an excellent resource for best practices. 180
At
a recent PERF meeting, roughly two hundred of the nation’s most prominent
police chiefs, DOJ officials, and White House officials met in our nation’s capi-
tal to discuss how their departments can adopt new policing initiatives. 181
Top
officials from the nation’s largest police departments “were urged to implement
new training and departmental policies that supporters believe[d] could lead to
a decrease in the number of fatal shootings by officers each year.” 182
Broad
themes within these best practices also holistically combine Peelian principles
176. See supra notes 55-57, 71 and accompanying text for a description of the Floyd and Davis law-
suits challenging police practices.
177. Tackling Crime, Disorder and Fear: A New Policing Model, N.Y.C. POLICE DEP’T
4-5 (2016), http://home2.nyc.gov/html/nypd/html/home/POA/pdf/Tackling_Crime.pdf
[http://perma.cc/9RVM-7U4N].
178. Benjamin Weiser, New York City To Pay up to $75 Million over Dismissed Summonses, N.Y.
TIMES (Jan. 23, 2017), http://www.nytimes.com/2017/01/23 /nyregion/new-york-city
-agrees-to-settlement-over-summonses-that-were-dismissed.html [http://perma.cc/G9ZU
-HMLE].
179. Id.
180. The Police Executive Research Forum website provides numerous resources and publica-
tions. See Free Online Documents, POLICE EXECUTIVE RES. F., http://www.policeforum.org
/free-online-documents [http://perma.cc/FRM9-4D6U].
181. Wesley Lowery, Police Chiefs Consider Dramatic Reforms to Officer Tactics, Training To Prevent
So Many Shootings, WASH. POST (Jan. 29, 2016), http://www.washingtonpost.com/news
/post-nation/wp/2016/01/29/police-chiefs-consider-dramatic-reforms-to-officer-tactics -training-to-prevent-so-many-shootings [http://perma.cc/QHC8-98SV].
182. Id.
the yale law journal 126:2222 2017
2258
of legitimacy and restraint—putting the sanctity of human life at the heart of
everything a police department does, having police departments hold them-
selves to higher standards than those set by the law, and reminding agencies of
the need to be transparent in providing information following use-of-force in-
cidents. 183
Reforms are long-lasting when police departments commit themselves to
constantly training officers on the latest policing practices and monitoring ad-
herence. Whether or not there is a DOJ consent decree, a department’s success
in implementing reforms will ultimately be determined over time and on a
case-by-case basis. Without a catalyst like the DOJ, change will only happen
when people recognize their common ground from which to move forward.
Police departments can and do share ideas of how best to implement reforms
before a tragic shooting occurs. And cities can look to DOJ consent decrees and
assessment reports reached in other cities to understand what reforms should
be implemented. Committed local and state politicians can lead reform projects
regardless of what the federal role may or may not be in the Trump Admin-
istration. A proactive approach may not only save a department from becoming
the next tragic headline, but could also saves lives, avoid unrest, and promote
greater cooperation in service of more effective policing.
c o n c l u s i o n : a n a m e r i c a n m o m e n t
Policing is dangerous, and no amount of reform will completely eliminate
the risks that police officers face or change the fact that tragic police-encounter
deaths will occur. In too many places, the current state of police-community re-
lations serves both the community and the police poorly. The hope is that by
adopting reforms, police-community relations can improve and police officers
will reduce the likelihood that excessive force will be used and lower the likeli-
hood of tragedy. When tragedies or flashpoints erupt, a foundation of commu-
nity trust and goodwill can calm tensions and lower the temperature. The im-
ages that flash across our screens understandably lead some to despair. But
stakeholders from all perspectives can benefit by focusing on the common
ground—improving public safety, which can be achieved through an embrace
of Peel’s principles and the correlated community policing tactics. For police
officers, reform represents an opportunity to improve their ability to serve their
communities more safely and effectively, and to gain or regain the faith of those
whom they swear to guard and serve. For political leaders, reform offers a
chance to ensure both that the communities they represent are protected by
effective and fair policing, and that the police in those jurisdictions are able to
183. Guiding Principles, supra note 11, at 25-26.
policing through an american prism
2259
secure the trust of the communities and employing best practices. And for
communities, reform is a chance to heal wounds, protect constitutional rights,
and start anew. The federal role in police reform under President Trump may
change, but the facts on the ground remain the same. Some police depart-
ments, cities, and communities will embrace the do-it-yourself self-reform op-
tion, which does not rely on the federal government to initiate or drive the re-
form process. Because it is difficult to reform without some catalyst, private
reform litigation may also play a role. Regardless of the particular catalyst or
pathway to reform, it can help improve police-community relations. That, in
turn, often leads to a safer community, and that seems worth the effort from
every perspective.
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