A Concrete Proposal To Save Black Lives

The shooting deaths this past week of two black men, as well as five police officers, feel like a new low in the tensions between police and people of color.

In Alton Sterling’s death, the Justice Department has already opened a civil rights investigation.

In Philando Castile’s death, Governor Mark Dayton has asked the White House to order a Justice Department investigation.

While this is reassuring, it raises the question: why are such investigations not automatic? They should be, and making them so will save black lives.

Many people are pointing to endemic racism in this country as the cause of Castile’s and Sterling’s deaths, and the shootings in Dallas as a response to the same racism. They are of course right that racism is a problem, but the solution ends up being somewhat fuzzy: dialogue, understanding, tolerance, awareness (all of which I am in favor).

But here’s a thought experiment: assume every black person killed by police was killed by a racist police officer. Some 990 people were killed in 2015, of whom 258 were black; meanwhile there are 900,000 police officers in the United States. In our thought experiment, the police responsible for the 258 black persons’ deaths — even if we assume an average of two or so officers per shooting — account for less than 5 percent of 1 percent of all police officers in the country.

Let’s extend the 2015 fatalities back twenty years — for 5,160 black persons’ deaths by police. That’s still — by my back-of-the-envelope math — only half a percent of the 900,000 police in the Untied States. Do we really think there have been only 10,000 or so racist police in the last twenty years? That only half a percent of current police are racist?

Obviously, not every racist police officer is a killer. But every police officer — racist or not — has the potential to be a killer. And here is the adjacent problem to racism: violence. Police in the United States have extraordinary latitude in the use of lethal force, a symptom of our society’s much bigger problem with violence.

Estimates on police violence are hard to find — police departments tend to keep those numbers a secret. One of the best sources is the Christopher Commission report, issued after the beating of Rodney King in 1991. According to the report, the LAPD had a violence problem alongside its racism problem:

The commission highlighted the problem of “repeat offenders” on the force, finding that of approximately 1,800 officers against whom an allegation of excessive force or improper tactics was made from 1986 to 1990, more than 1,400 had only one or two allegations. But 183 officers had four or more allegations, forty-four had six or more, sixteen had eight or more, and one had sixteen such allegations.

At the time of the report, LAPD had 8,450 officers: 16% had one or two complaints of excessive force, but just over 2% had four or more complaints. What’s more, complaints were investigated by LAPD, which ‘sustained’ only 42 of 2,152 complaints. The report further says that punishments for excessive force were minor, and complaints rarely kept officers from promotion — even in the 83 cases where complaints led to civil settlement or judgment of more than $15,000 against the LAPD.

Many people remember that when the officers involved in the King beating were tried in state court, they were acquitted — which lead to riots in LA. However, when four of the officers were tried by Federal court, two were convicted. Federal courts and juries have typically been less tolerant of violent police than local courts.

The decision to bring officers to trial in Federal court comes from the Justice Department, which gets its authority from Title 18 U.S. Code, § 242, which allows the Department to prosecute anyone who “willfully subjects any person […] to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States”. This article points out that the statute is written in a way that makes prosecution difficult — indeed, the vast majority of cases are not prosecuted — but it also wrongly implies that the law is the only way violent police can be brought to heel.

There is another law — 42 USC § 14141 — that allows the Justice Department to investigate

whether the police department has engaged in a pattern or practice of stops, searches, or arrests that violate the Fourth Amendment; use of excessive force; discriminatory policing; violation of the constitutional rights of criminal suspects; or violation of First Amendment rights.

Under 42 USC § 14141, the Justice Department is only allowed to pursue civil cases against police departments suspected of violation. That means nobody goes to jail, but it also means that the Justice Department can impose wide-ranging reforms on violent police departments.

But since the law was passed in 1994, the Justice Department has only conducted 68 investigations. Not brought 68 court cases — 68 investigations, many of which never make it to court. In the last three years there have been only 6 — in Cleveland, Ferguson, two in Lousiana, Baltimore, and Chicago.

In cases where police have killed a person, the Justice Department should automatically invoke 18 USC § 242 and 42 USC § 14141 to investigate both the police officers and the police department. Granted that many of these investigations will not result in trial or settlement, but the Justice Department should not wait for public outrage or protests to make the decision. Police officers and their departments should take it as given that they will be investigated — fairly but scrupulously — when they take a life.

Clearly, the Justice Department could be more ambitious in taking § 242 and § 14141 investigations to trial, but even if they don’t, the threat of investigation should force departments to rethink how they train their officers in the use of force, and whether they will tolerate the most violent officers in their ranks.

The investigations will also bring to light abuses and violations that police departments wish to keep secret, making those departments more transparent and thus more tractable to public pressure to reduce violence. It is much easier to identify which police are violent, versus those who are racist, and thus much easier to debadge those officers prone to violence.

Automatic § 242 and § 14141 investigations will also signal a normative shift, that the Federal government will no longer turn a blind eye to lethal force. Police will be held to a higher standard in their use of force, and police fatal shootings will be intrinsically suspect — as they already are in the eyes of many Americans.

I have written before that America has a violence problem, one of the causes of which is the decentralized control of violence. Where in many developed countries a strong central government closely regulates the use of force, in the United States our system allows — among other things — thousands of police departments to make up their own rules about the use of force. Making § 242 and § 14141 investigations automatic is an immediate and concrete way that the Federal government can assert its monopoly on violence, absent a new law from Congress or a Constitutional Amendment.

By constraining police departments in their use of lethal force, § 242 and § 14141 can save lives — especially black lives. Although this policy also will save lives among other racial groups, I want to be clear that I affirm the goals of and need for the Black Lives Matter movement. This proposal also affirms the fact that most police officers are fair and judicious in their official duties. It is a policy targeted squarely at the bad police and the bad departments in this country.

I also want to be clear that the rules which allow police to regulate their own use of force are the product of the racism built into the United States’ form of government — rules which had as an original goal the preservation of slavery in various states. This racism is in large part — but not solely — responsible for the high levels of violence experienced in American society. It enables violence that even whites experience at the hands of public authorities.

I believe it is necessary to address racism, in order for our country to move forward peacefully. But I also know that — where the goal is saving black lives — violence is the more immediate problem. Taking a step back from the racism problem, and focusing on the violence problem, will have concrete and immediate benefit for Americans of all races, even while helping people of color most of all.

I wish, but dare not hope, that we might get rid of all the racist police officers in this country. But I believe, and rather insist, that we can get rid of the violent officers — those responsible for unjustified, unnecessary killings. Doing so requires a much firmer hand from the Federal government, and § 242 and § 14141 investigations are an easy first step.

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