- The American Conservative - https://www.theamericanconservative.com -

How to Stop Brutality-Adjacent Policing

What happened to Sandra Bland [1]? This is a question many Americans (particularly, and rightfully, black American women) are asking, following the death of a young civil rights activist in a Waller County, Texas jail cell two weeks ago. Was any of it—her arrest after a traffic stop [2] by state trooper Brian Encinia, her three-day detention, the neglect that resulted in her alleged suicide by hanging—legal?

Bland’s death remains under investigation, but the dashboard camera footage [3] of her interaction with Encinia shows the escalation of a warning for the failure to signal into the forceful detention of an epileptic woman. Surprisingly, much of what occurred between Encinia and Bland appears to have been legal, if imprudent. Encinia’s tactics could be called “brutality-adjacent policing,” in which the standard for behavior is the bare legal minimum rather than actively good policing.

The phrase comes from Leah Libresco’s reflection on California’s “affirmative consent” law, which Libresco called an attempt to minimize “rape-adjacent sex [4]”—the “gray area” into which many rape cases fall, in which one partner believes he or she is behaving appropriately, while the other partner experiences the interaction as rape. Libresco continues, “Rape-adjacent sex gives cover to serial predators, who are believed to be the main driver of sexual assaults on campus, since the kind of sex they’re trying to have doesn’t look very different from the sex everyone else is already having.”

Brutality-adjacent policing works in much the same way: the officer believes he or she is behaving appropriately, while the civilian experiences the interaction as brutality. This way of policing gives cover to bad actors, because the kind of policing they are exercising doesn’t look very different from the policing everyone else, “good cops” and “bad cops” alike, is exercising.

Advertisement

For instance, the major legal quandary in Encinia’s arrest of Bland arises from the point at which he asked her to put out her cigarette. When she refused, he ordered her to exit her vehicle. The former order was in fact a request, which Bland was within her rights to decline, but the latter was a command that Encinia had the legal authority [5] to enforce. Encinia was not required to justify his command, and the impression that he gave the command in service of his ego rather than his safety is legally irrelevant—though socially damaging. When a police officer chooses to force compliance (giving a command) rather than encourage cooperation (writing warnings, ignoring frustration, explaining good safety habits), he or she not only wastes police resources on inconsequential issues, but also breaks down trust between police and civilians in a very tangible way. It is legal policing, but it is not good policing. (It is worth noting that most relevant authorities, including the local district attorney and mayor, seem to agree [6]. The State Department of Public Safety is currently conducting an inquiry, having stated that the trooper violated unspecified protocol.)

The obvious, but faulty, assumption is that the civilian side of the encounter could easily be improved. After all, it is fairly clear that Sandra Bland was arrested for an “unwritten crime … contempt of cop [7],” a phenomenon more or less avoidable by deference to the police. It is true that Bland could have responded more “respectfully” (that is, quietly) to Encinia’s actions. In fact, Orin Kerr explains [8], the way the law is structured would have pressured her to do so: it is often impossible for a citizen to know when an officer is giving a lawful order, either because of unfamiliar laws or uncontrollable circumstances such as unknown evidence. “Faced with this, a citizen’s cautious strategy might be just to do everything the officer says regardless of whether the officer’s command is lawful.”

In reality, Charles M. Blow [9] is right to say that the parameters of “respectable behavior” vary from person to person, and, crucially, those parameters are informed by race, gender, and circumstance. Everything from Encinia’s mood that day to his socialized expectations of a black female civilian is beyond prediction, and those factors proved just as crucial for Bland’s fate. Her safest option, legally and otherwise, would have been total deference to the police, but this is unreasonable to demand in a democratic society—not to mention impractical, since police, not civilians, are the ones trained to anticipate and resolve conflict.

That training is where concrete progress can be made. Former police officer and legal scholar Seth Stoughton [10] has called the tragic police-civilian encounters propelling the #BlackLivesMatter [11] movement “symptoms of a systemic problem: a police culture that trains and encourages officers to adopt a ‘warrior mindset.’” The “warrior” mindset trains officers to prioritize personal survival in each encounter, as if in response to a uniformly hostile environment. The highly-publicized murders of police officers, such as recent killings in California [12] and New York [13], illustrate the very real nature of the danger faced by police officers in their day-to-day work.

But when danger and defense are the only factors informing a police officer’s default attitude toward civilians, it is easy to lose sight of the power dynamic at play. As Lonnae O’Neal [14] has reported, police officers are, by the numbers, significantly more of a threat to civilians than civilians are to them: according to the FBI [15], 51 officers were killed in the line of duty in 2014, while according to a Washington Post database of police shootings [16], police have shot and killed 544 people this year thus far. (“Of that number, 76 people were unarmed or had a toy weapon and at least 34 of them were driving a vehicle,” O’Neal notes.)

Without minimizing the occasional necessity of a “warrior” mindset in the face of life-or-death situations, Stoughton proposes an alternate model for everyday use and emphasis in modern policing: that of the community “guardian.” The “guardian” takes a long-term view of how to achieve the goal of community protection, prioritizing “service over crime-fighting.” Training officers to be “guardians,” Stoughton suggests, could involve encouraging more non-enforcement encounters in order to build relationships in the community; training in de-escalating conflict and tactical restraint; and incorporating analysis of police-civilian encounters gone wrong in early training.

In short, better policing requires the recognition that Brian Encinia’s actions would have been devastating even if Sandra Bland were alive. It requires hearing the #BlackLivesMatter movement’s call not just to protect black lives from police brutality, but black living from brutality-adjacent policing. It requires raising the necessary but insufficient standard of legality to a stronger standard of guardianship, and shifting the focus from officer safety to community protection.

Catherine Addington is an editorial fellow for The American Conservative.

Follow @caddington11 [17]
//

16 Comments (Open | Close)

16 Comments To "How to Stop Brutality-Adjacent Policing"

#1 Comment By Rachel On July 29, 2015 @ 12:26 am

I like the terms “brutality-adjacent policing” and “rape-adjacent.” I think it’s beneficial to have terms that adequately describe the fact that, for most of these situations, it’s not obvious whether someone was making the best decision, or doing something good or bad, and that someone’s perception of whether the behavior or action was good or bad depends on that person’s role.

I also think it’s important to recognize that laws provide the framework of society, but they’re not intended to be the final authority in every situation. After all, there are many things that are immoral and/or unethical that are not strictly illegal.

#2 Comment By SteveM On July 29, 2015 @ 7:51 am

Law enforcement at all levels is suffused with sociopaths who mutually reinforce their warped idea of “warrior policing” in the squad room.

To think that that kind of psychopathology between the ears of Goon cops can be trained away is ludicrous. They may attend the training because it is mandated and then dismiss everything they hear because of the critical mass of warped values that they share.

And make no mistake, there are no “few bad apples” in a barrel of good cops. The video captures show that as the primary Goons do the beat downs, their “good cop” pals watch without intervention and then sign off on the false charges of resisting arresting and assaulting an officer.

This Washington Post story is instructive:

[18]

The Goon Cop Webster kicked in the face of a compliant suspect breaking his jaw. Webster’s partner was all in to the beat down. If every single cop on the Dover police force was swapped in for Webster’s partner in that situation do you think even one of them would have reported on Webster’s criminal assault and the associated false charges leveled against the suspect Dickerson?

Nope, at some level the apples are all rotten. And no amount of training is going to fix that.

#3 Comment By John On July 29, 2015 @ 10:20 am

Beyond how police officers are trained, there is the polity they serve. And we should not discount the extent to which police officers engage in brutality because their community’s leadership prefers it.

Take [19] for instance. Between January of 2011 and September of 2014, the city paid out $5.7M in judgments or settlements relating to over 300 police brutality claims. The city budgeted $4.2M in FY15 in anticipation of being sued to hire counsel, settle claims or pay judgments. It’s noteworthy that the O’Malley administration began a practice of “clearing corners” wherein police would round up mostly young black males from street corners suspected to have frequent criminal activity, often without even the pretext of a charge. Once downtown, the suspects could sign a form indemnifying the city against false arrest to be freed that night or the next day, or wait to take their chances with the magistrate on Monday morning. These aren’t tactical choices. These are political choices that come through the mayor’s office from the voters.

I am hoping that the charges being filed against the officers involved in Freddie Gray’s death lead to more police officers pushing back on their superiors when they ask for questionable enforcement tactics without putting it in a written order. Because the police are following orders, for the most part – even if some are excessive in carrying those orders out. The voters and their elected officials must share responsibility for a culture of policing wherein being young, black and male suffices for probable cause. What do we do about that? I have no idea.

#4 Comment By Uncle Billy On July 29, 2015 @ 2:42 pm

I have noticed, that often police escalate situations which could possibly be kept at a lower level of conflict. Quite often, people are thrown to the ground and handcuffed, without actually resisting arrest. Frequently, the person said something that the police officer did not like, and the the officer got physical for no real reason. All too often, people who are handcuffed, face down on the ground, get tasered when they are no threat to the police. The cops are angry and taser the person to “teach them a lesson.”

Cops are human too and I understand the pressures and dangers of the job, but there are too many people getting tasered while handcuffed and on the ground, who are no threat. This is not careful police work, this is police brutality.

#5 Comment By KXB On July 30, 2015 @ 10:29 am

The article makes a good point about training, but leaves out the issue of liability. Right now, the cost of brutality cases is not borne by the police officer or the department as a whole, but the taxpayer. If the likelihood of punishment/accountability is non-existent, what incentive is there to change behavior?

OTOH, it is instructive to see how law enforcement behaves when the threat to their safety is very real, and not just imagined. In the case of the Aurora movie theater shooting, the Charleston church shooting, or the tax-dodgers at the Bundy ranch – in each of these cases you had armed men who demonstrated they were willing to shoot anyone that came near them. Consequently, the police calibrated their response to lessen the chances of more violence, and also to protect themselves from getting shot.

The cases in Texas, Staten Island, and Cincinnati – there was never any danger to the police in question. Escalation of violence was completely at the discretion of law enforcement. Since the police thought they could control the situation, they had little reason to hold back. And if things went sideways – no problem, as they are effectively exempt from the law.

#6 Comment By Bruce On July 30, 2015 @ 11:17 am

We should remove guns from the person of police. If their weapons were in the police car, most of these killings would not happen. Further, police might think twice before escalating compliance. And it would not increase risk to police: shoot-outs create casualties on both sides

#7 Comment By Larry Wilson On July 30, 2015 @ 6:02 pm

Phenomenal article. Sharing extensively.

#8 Comment By David Smith On July 30, 2015 @ 7:02 pm

He told her to put out her cigarette. Without that, the incident could have ended with a simple citation. Is smoking a cigarette illegal? This was nothing more than an attempt to humiliate her and had nothing to do with the reason he stopped her. She may have lost her temper, but people do that when they are provoked. A woman spent three days in jail and died, for a simple traffic violation. We should all be outraged.

#9 Comment By Rick On July 31, 2015 @ 12:01 am

Training will not work since it’s the very nature of policing that compels a very predictable us vs. them mentality and “unit solidarity.” Milgram demonstrated this tendency 45 years ago and yet we still seem amazed that these incidents keep happening.

You can take the most compassionate, conscientious, gentle, thoughtful person in the world and if you put a uniform on them and give them special legal powers for control they’ll transform pretty quickly into cynical narcissist quasi-sociopaths in short order.

They’ll either become direct perpetrators or enablers, but either way abuse of power in the way we conduct policing is inevitable — it’s hard wired into our DNA and encouraged by our socialization.

I’m a white middle class male and I’ve been harassed by ego trip cops more than a dozen times for no good reason. They’re jerks 95% of the time. I’ve only had one good encounter with a cop in my life.

I can’t even imagine what blacks, hispanics or poor whites go through. Lives are often ruined for decades and for what?

#10 Comment By Richard On July 31, 2015 @ 8:30 am

It’s easy and convenient to throw all the blame on law enforcement officers. Yes, it’s important and necessary to do so when the facts warrant. But let’s not allow ourselves, the voters, to escape accountability here. With the incidents we have been seeing (and, thankfully, seeing publicized) we are reaping the harvest of a generation-long “war on crime”, in which we have been willing co-conspirators. Policemen will not become guardians until we the public elect leadership who expect that policemen change their M.O. from warriors to guardians.

Richard

#11 Comment By Barney Fife On August 1, 2015 @ 12:26 am

The cases in … Staten Island, …there was never any danger to the police in question. Escalation of violence was completely at the discretion of law enforcement.

Are you referring to Garner? If so, you are incorrect. Garner escalated the situation by flailing his arms and refusing to be arrested. Should the cops have retreated at that point? If so, then change the law. But until then, the cop must make the arrest. How would you have made the arrest? My point is; the arrest had to be made. Should the cop have tasered him? Then if he died the cop would be blamed for tasering him. Should the cop have knelt behind him and have another cop push Garner down? Then the cop would be blamed if Garner hit his head and died? I don’t know a better way to effect the arrest of Garner, and I am saying that seriously. How should the cop have arrested him?

Are you saying it was just cigarette sales so the cop should not have even tried to arrest him? Fine, the change the law.

Are you saying if a suspect resists, the cop should give up? Would that not encourage resisting?

Are you saying the cop should not have put his arm around Garner’s neck? How else would the cop have gotten him to the ground and gotten his hands in cuffs?

Are you saying the cops should have waited for more back-up so they could have taken Garner into custody while still on his feet? Then the cops would be blamed for using too many cops should Garner have suffered and asthma attack and died?

What should the cops have done there? I am truly asking here?

#12 Comment By Barney Fife On August 1, 2015 @ 12:30 am

Cops are human too and I understand the pressures and dangers of the job, but there are too many people getting tasered while handcuffed and on the ground, who are no threat. This is not careful police work, this is police brutality.

Simple. Lobby city governments to change their use of force policies. Chicago PD allows tasers only on active resistors.

#13 Comment By Barney Fife On August 1, 2015 @ 12:33 am

we are reaping the harvest of a generation-long “war on crime”,

there is no such thing as a ‘war on crime.’ You are making things up – and that doesn’t help.

State statutes prohibit certain activities: robbery, theft, graffiti, etc.

Are these prohibitions what you are referring to as the ‘war on crime?’ If so, should we then allow these activities? I am not sure what you are saying here. Please be more clear.

#14 Comment By Barney Fife On August 1, 2015 @ 1:11 am

The author writes:

In short, better policing requires the recognition that Brian Encinia’s actions would have been devastating even if Sandra Bland were alive. It requires hearing the #BlackLivesMatter movement’s call not just to protect black lives from police brutality, but black living from brutality-adjacent policing. It requires raising the necessary but insufficient standard of legality to a stronger standard of guardianship, and shifting the focus from officer safety to community protection.


Like I have said, I am trying to learn here. How then do we “Stop Brutality-Adjacent Policing?” Apparently, we stop it by recognizing that “better policing requires the recognition that Brian Encinia’s actions would have been devastating even if Sandra Bland were alive.”

Ok, I’ll accept that. Encinia should not have ordered Bland out to the vehicle out of anger, no matter that he was within his legal rights. Got it. Seriously, I’ve got it. But … and this is a bug BUT … simply ordering her out of the car, even though it was out of rage, anger, power, pride, whatever … is NOT “devastating.” Sorry, I’m trying here. I really am. If she had not kicked him, her only inconvenience would have been being asked to extinguish her cigarette and exit the vehicle. She was NOT under arrest when the cop asked her to exit the vehicle.

So, sorry, author. I am not buying. I know you think you are seeing things clearly, but you are not. The cops actions were NOT devastating. I am trying to be convinced, but I just can’t. My integrity won’t allow.

Your article did NOT answer the question: “How to Stop Brutality-Adjacent Policing?”

This is a tragedy because this poor girl committed suicide. That’s horrible. Truly horrible. But you are trying to explain that tragedy via the actions taken by Encenia, and I just can’t buy it. Sorry.

#15 Comment By Gary M On August 1, 2015 @ 8:48 pm

Police don’t even make it into the top ten deadliest occupations in America. Yes they are necessary. But the attitudes need to change and we have to stop always trying to blame the victim. Run from a cop, get shot eight times in the back. Don’t put out your cig? Three days in a cell will larn her. Society has given the police a free hand for too long. Cameras on every cop all day long is just a start. This has been a problem in society since at least the days of the Romans. Quis custodiet ipsos custodes?

#16 Comment By MENSAN2 On August 18, 2015 @ 7:16 pm

Mr. Barney Fife states that he wishes to learn, then makes what he believes are factual comments to outline or underscore his various statements such as; “She was NOT under arrest when the cop asked her to exit the vehicle.” Unfortunately BF is wrong! You see, once you are unable to leave the scene you are then technically under arrest. Should this ever occur to you in the future you can easily find out if you are under arrest by simply asking the officer if you are free to go. Often, however, a cop will ignore your query by asking you a question, whether relevent or not to the current situation. You, of course have the right to use the Fifth Amendment should you choose to while the cop is out of line for asking questions of you. Regardless, once again ask the cop if you are free to go and should he say “No” then you are, in fact, under arrest. It’s the law. Read the statutesa sometime.