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Controversial Police Methods
For most of its history in America, the work of the patrol officer and the investigator constituted the vast majority of police work. Uniformed officers patrolled the streets of America’s cities, serving as a highly visible deterrent to crime and attempting to catch criminals in the act. If patrol failed, the investigator’s job was to follow up, solving crimes by questioning victims, witnesses, and suspects. Only since the 1960s has empirical research highlighted the limits of both preventive patrol and criminal investigations in dealing with America’s crime problem. It was not until the early 1990s that this research spawned a new wave of police reform aimed at proactive policing strategies. These proactive strategies meant that police efforts would shift (at least to some degree) from responding to calls for service to initiating action.
Any American who pays attention to law enforcement has heard of the strategies: “broken windows,” “stop and frisk,” “zero tolerance.” These are all variations on what has broadly been called “proactive policing.” This is an unfortunate development. The idea of proactivity is logically sound, and it has nothing to do with the heavy-handed, authoritarian, and racist models that particular departments have placed under the umbrella. Proactivity means that police will do more than wait around for a 911 call; officers can be forces for social change that can prevent crimes rather than respond to them. In other words, proactive policing involves efforts to seek out and prevent the causes of crime before it happens, as opposed to a more reactive policy of just dispatching police when calls for service come into 911.
The foundational elements of proactivity include an emphasis on prevention, mobilizing resources based on police initiative, and targeting the broader underlying forces at work that may be driving crime and disorder. This contrasts with the standard or traditional model of policing, which involves an emphasis on reacting to particular crime events after they have occurred, mobilizing resources based on requests coming from outside the police organization, and focusing on the particulars of a given criminal incident.
For our purposes, proactive policing is differentiated from the personal decisions of police officers to be proactive in particular situations and instead refers to a strategic decision by police agencies to use proactive police interventions in a systematic way to reduce crime. Today, proactive policing strategies are used broadly in the United States. Such strategies are not isolated programs used by a limited number of agencies, but rather a set of ideas that have spread across the entire ecosystem of policing.
Each approach to proactive policing is derived from a different theoretical model, each focusing on a different method for preventing crime and disorder. A place-based approach seeks to capitalize on empirical findings about the concentration of crime in small micro-geographies. A problem-solving approach assume that when the police focus on solving specific problems, rather than applying broadly defined generalized strategies, greater crime prevention gains will be achieved. In a person-focused approach, empirical data on the concentration of crimes among a small part of the criminal population form the key element of the logic model.
And finally, with a community-based approach, the importance of the community in solving crime problems is the primary logic model of prevention. In practice, these approaches often entail overlapping police strategies and programs in the field. One conclusion that can be drawn from reviewing these approaches is that they are, overall, used widely in American policing. This widespread use of proactive policing practices makes careful assessment of their consequences for crime, communities, legality, and bias and discrimination particularly important.
Policing in the United States has always been maligned by critics for heavy-handed strategies that pay little regard for civil liberties and civil rights. In recent times, these criticisms have evolved into a full-blown crisis of confidence in policing. Incidents of perceived (or genuine) police misconduct have given rise to protests across the nation against what is seen as unfair and abusive police practices. We will consider that crisis of confidence in a later section, but it is, unfortunately, important to consider how proactive policing strategies may contribute to this current crisis. A mere superficial study if the issue reveals that just because a particular strategy that is labeled proactive shows a noteworthy impact on crime, it does not mean that the strategy should be utilized. Attitudes of citizens toward police, legal issues, and ethical issues must all be considered as well. If a practice is unethical or illegal, it doesn’t matter whether it will reduce crime or not. The damage to police credibility within the communities that they serve is too great a cost. If citizens come to fear encounters with police more than they fear confrontations with criminals, then the strategy is a failure.
Issues of Law
The most important legal constraints on proactive policing are the Fourth Amendment to the U.S. Constitution and the Equal Protection Clause of the Fourteenth Amendment. There is nothing inherent in the idea of proactivity that suggests that officers must violate these important constitutional provisions, but any proactive strategy could lead to Fourth Amendment violations to the extent that it is interpreted to require officers to engage in stops, searches, and arrests that violate constitutional standards. This risk is especially relevant for stop, question, and frisk (SQF), broken windows policing, and hot spots policing interventions if they use an aggressive practice of searches and seizures to deter criminal activity. Note that the ideas and theories that supposedly underpin these strategies were not interpreted this way by their creators. Many times, we find that these good names were misappropriated by authoritarian agencies in an effort to lend respectability to programs that ignore civil rights and deserve no respect on their own.
Americans generally regard the courts as the guardians of civil liberties and a pillar of our democracy. Critics of the rulings related to “high crime areas” hold that the courts are the facilitators of police infringement of civil liberties. In other words, proactive policing strategies may curtail the potency and scope of constitutional protection and reduce the availability of constitutional remedies. When agencies identify “high crime areas” pursuant to place-based proactive policing strategies, courts may allow stops by officers of individuals within those areas that are based on less individualized behavior than they would require without the “high crime” designation. In Illinois v. Wardlow, the Supreme Court held that presence in a high-crime area is one of only two factors necessary for creating reasonable suspicion to stop an individual. Given the impact of Wardlow and its progeny, geographically oriented proactive policing strategies may lead presumably identical citizen-police interactions to be treated differently under the law.
The Equal Protection Clause guarantees equal and unprejudiced treatment of citizens by government actors including law enforcement. The clause extends to all policies, processes, and acts taken by police officers and their agencies. This, of course, includes departmental policies and the actions of individual officers in the implementation of proactive policing strategies. As a result, Equal Protection claims may arise with respect to any proactive policing strategy to the extent that it discriminates against individuals based on their race, religion, or national origin, among other attributes. Since most policing policies today do not expressly target racial or ethnic groups, most equal protection challenges require proving a discriminatory purpose in addition to discriminatory effect in order to establish a constitutional violation.
Specific proactive policing strategies such as SQF and “zero tolerance” versions of broken windows policing have been linked to violations of both the Fourth Amendment and the Equal Protection Clause by courts in private litigation and by the U.S. Department of Justice in its investigations of police departments. Ethnographic studies and theoretical arguments further support the idea that proactive strategies that use aggressive stops, searches, and arrests to deter criminal activity may decrease liberty and increase Fourth Amendment and Equal Protection violations.
Illinois v. Wardlow
The officers’ actions did not violate the Fourth Amendment. This case, involving a brief encounter between a citizen and a police officer on a public street, is governed by Terry, under which an officer who has a reasonable, articulable suspicion that criminal activity is afoot may conduct a brief, investigatory stop. While “reasonable suspicion” is a less demanding standard than probable cause, there must be at least a minimal level of objective justification for the stop. An individual’s presence in a “high crime area,” standing alone, is not enough to support a reasonable, particularized suspicion of criminal activity, but a location’s characteristics are relevant in determining whether the circumstances are sufficiently suspicious to warrant further investigation…. In this case, moreover, it was also Wardlow’s unprovoked flight that aroused the officers’ suspicion. Nervous, evasive behavior is another pertinent factor in determining reasonable suspicion, and headlong flight is the consummate act of evasion. In reviewing the propriety of an officer’s conduct, courts do not have available empirical studies dealing with inferences from suspicious behavior, and this Court cannot reasonably demand scientific certainty when none exists. Thus, the reasonable suspicion determination must be based on commonsense judgments and inferences about human behavior….Officer Nolan was justified in suspecting that Wardlow was involved in criminal activity, and, therefore, in investigating further. Such a holding is consistent with the decision in Florida v. Royer, that an individual, when approached, has a right to ignore the police and go about his business. Unprovoked flight is the exact opposite of “going about one’s business.” While flight is not necessarily indicative of ongoing criminal activity, Terry recognized that officers can detain individuals to resolve ambiguities in their conduct, and thus accepts the risk that officers may stop innocent people. If they do not learn facts rising to the level of probable cause, an individual must be allowed to go on his way. But in this case the officers found that Wardlow possessed a handgun and arrested him for violating a state law….
Department of Justice’s Investigation of Baltimore City Police Department
Today, we announce the outcome of the Department of Justice’s investigation of the Baltimore City Police Department (BPD). After engaging in a thorough investigation, initiated at the request of the City of Baltimore and BPD, the Department of Justice concludes that there is reasonable cause to believe that BPD engages in a pattern or practice of conduct that violates the Constitution or federal law. BPD engages in a pattern or practice of:
(1) making unconstitutional stops, searches, and arrests;
(2) using enforcement strategies that produce severe and unjustified disparities in the rates of stops, searches and arrests of African Americans;
(3) using excessive force; and
(4) retaliating against people engaging in constitutionally-protected expression.
This pattern or practice is driven by systemic deficiencies in BPD’s policies, training, supervision, and accountability structures that fail to equip officers with the tools they need to police effectively and within the bounds of the federal law.
A Tale of Two Cities
Recent high profile events have highlighted the critical importance of mutual trust and cooperation between law enforcement officers and the people that they serve. A commitment to constitutional policing builds trust that enhances crime-fighting efforts and officer safety. Conversely, frayed community relationships inhibit effective policing by denying officers important sources of information and placing them more frequently in dangerous, adversarial encounters. These principles exist in stark contrast in the city of Baltimore. In this city, police officers confront a long history of social and economic challenges that impact much of the City, including the perception that there are “two Baltimores:” one wealthy and largely white, the second impoverished and predominantly black.
Community members living in the City’s wealthier and largely white neighborhoods told us that officers tend to be respectful and responsive to their needs, while many individuals living in the City’s largely African-American communities informed us that officers tend to be disrespectful and do not respond promptly to their calls for service. Members of these largely African-American communities often felt they were subjected to unjustified stops, searches, and arrests, as well as excessive force. These challenges amplify the importance of using policing methods that build community partnerships and ensure fair and effective enforcement without regard for affluence or race through robust training, close supervision, data collection and analysis, and accountability for misconduct.
Starting in at least the late 1990s, City and BPD leadership responded to the City’s challenges by encouraging “zero tolerance” street enforcement that prioritized officers making large numbers of stops, searches, and arrests—and often resorting to force—with minimal training and insufficient oversight from supervisors or through other accountability structures.
How Would You React?
The following excerpt from the Justice Department’s Report describes the illegal, embarrassing, and intrusive search practices of BPD:
“During stops, BPD officers frequently pat-down or frisk individuals as a matter of course, without identifying necessary grounds to believe that the person is armed and dangerous. And even where an initial frisk is justified, we found that officers often violate the Constitution by exceeding the frisk’s permissible scope. We likewise found many instances in which officers strip search individuals without legal justification. In some cases, officers performed degrading strip searches in public, prior to making an arrest, and without grounds to believe that the searched individuals were concealing contraband on their bodies.”
How would you respond if you or your loved one were treated in such a manner?
These practices led to repeated violations of the constitutional and statutory rights, further eroding the community’s trust in the police. Proactive policing does not have to lead to these consequences. On the contrary, constitutional, community-oriented policing is proactive policing, but it is fundamentally different from the tactics employed in Baltimore for many years. Community policing depends on building relationships with all of the communities that a police department serves, and then jointly solving problems to ensure public safety. The task is to build up communities and partner with them in the fight against crime and disorder, not to alienate community members and provoke mistrust and outrage.
The idea that the “quality of life” in a neighborhood has a direct impact on crime and disorder was best established in a 1982 Atlantic article by Kelling and Wilson.
“Broken windows,” the notion that addressing small problems can avert more serious crimes, has strong evidence of efficacy when the tactic focuses on improving a neighborhood, such as cleaning up vacant lots and, indeed, “fixing broken windows.” In Kelling and Wilson’s original article, making arrests for minor offenses as never discussed, let alone advocated. When the Broken Windows strategy is interpreted to mean “zero tolerance” it is no longer Broken Windows. With widespread arrests of people for certain “quality of life” infractions, there is little evidence of crime reduction and ample evidence of alienating communities. In fact, the original architects of the theory specifically state that police are not the solution because arrest often isn’t a lawful option:
“But the substantive problem remains the same: how can the police strengthen the informal social-control mechanisms of natural communities in order to minimize fear in public places? Law enforcement, per se, is no answer: a gang can weaken or destroy a community by standing about in a menacing fashion and speaking rudely to passersby without breaking the law.”
Does “Zero Tolerance” Really Work?
Civil libertarians would argue that police should never be allowed to act contrary to the Bill of Rights, regardless how effective a practice is in detecting criminals and bringing them to justice. Some people would say that the ends can justify the means. If bad policing results in violated constitutional rights but results in the apprehension of large numbers of criminals, then the results are worth the price. When we examine the record on systematic harassment of African Americans in Baltimore by police, we find a paltry result gained by severely diminishing the dignity of Baltimore’s minority citizens. The following excerpt from the Justice Department’s report makes the evidence of pitiful returns obvious:
“BPD’s stops often lack reasonable suspicion. Our review of incident reports and interviews with officers and community members found that officers regularly approach individuals standing or walking on City sidewalks to detain and question them and check for outstanding warrants, despite lacking reasonable suspicion to do so. Only 3.7 percent of pedestrian stops resulted in officers issuing a citation or making an arrest. And, as noted below, many of those arrested based upon pedestrian stops had their charges dismissed upon initial review by either supervisors at BPD’s Central Booking or local prosecutors.”
References and Further Reading
Ferguson, A. G. (December, 2011). Crime Mapping and the Fourth Amendment: Redrawing “High-Crime Areas.” Hastings Law Journal.
Kelling, G. L. & Wilson, J. Q. (1982). Broken Windows: The police and neighborhood safety. The Atlantic.
Illinois v. Wardlow, 528 US 119, (2000)
Modification History File Created: 08/15/2018 Last Modified: 06/14/2019
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