On the Other Side of Freedom

by DeRay Mckesson

  Without data, it’s hard to challenge the assumptions, stereotypes, and justifications that the police push. For instance, law enforcement commonly advances the notion that there is a relationship between community violence and police violence—that the police were more violent in communities that were themselves more violent, and that the police simply have to use more force in deadlier ways to maintain peace and order in dangerous cities. However, the data plainly does not support this: some police departments kill people far less frequently than others. The level of community violence in each city did not explain the level of police violence there.

  Rather than being determined by crime rates, police violence reflects a lack of accountability in the culture, policies, and practices of the institutions of policing, as investigations into some of the most violent police departments in America have shown. We now had the data to help us understand the problem in a more holistic sense. Perhaps more important, the data illustrated the problem and gave people a different language to describe the realities communities had experienced.

  The data also pointed to solutions. Why were police in some cities much less likely to kill people than others? What was it about the way a police department functioned that could explain their rate of violence? We were essentially operating from square one, since nobody had collected the data to even begin to draw data-driven conclusions about this issue. Not the academics and criminologists. Not the department of justice. Certainly not the police.

  The secrecy of police departments extends beyond the numbers to the very policies themselves that outline when an officer is allowed to use deadly force. These “use of force” policies are almost never accessible, never publicly discussed. We were able to find them through a series of exhaustive Freedom of Information requests. We found each police department had different rules and standards of conduct, each a different system of accountability—or seemingly no system of accountability at all. Some departments had policies that required police to use tactics like de-escalation as a way to prevent police shootings. Others explicitly advised police that they did not need to use these tactics.

  For example, we found that the San Francisco police have one of the most restrictive use of force policies in the nation.* Officers are required to de-escalate situations whenever possible. If that fails, they must exhaust all other reasonable means of addressing a situation using less lethal force before using their guns. And if those options all fail, officers are required to give a verbal warning before using their guns. They are further required to report every time they point their guns at someone, and are restricted from using their guns against anyone who poses a threat only to themselves or who is inside a vehicle. Furthermore, each bullet an officer fires is evaluated on this standard—even if the first bullet fired is deemed justified, officers can still be held accountable for the circumstances in which they fired the next bullet during that encounter. Police in nearby San Jose, by contrast, don’t follow these standards. The San Jose Police Department’s use of force policy instructs officers that they “need not retreat or desist in the reasonable use of force. . . . There is no requirement that officers use a lesser intrusive force option before progressing to a more intrusive one.”*

  And it turns out these policies matter, a lot. Departments that had the most restrictive use of force policies were 72 percent less likely to kill people than those with the least restrictive policies.

  When the protests began, I would have said, as many others have said, that police violence was bad people making bad decisions in the midst of a bad system. But now I realize that there are literally structures and systems that protect the police from accountability and encourage the types of behaviors and attitudes that do harm to communities.

  When challenged, the police use the immense platform that society has afforded them to construct “truths” that are not based in fact. As people challenge the police to address statistics showing black people are more likely to be impacted by various forms of police violence, the police use their platform to blame black communities instead: We just respond to the issues. We just go where the crime is, they’ll say as they rattle off statistics about crime in black communities. The police have harped on this line of thinking so relentlessly that now most everyone in America has heard it.

  But the data shows this isn’t true.

  An analysis of marijuana arrests in New York City found that even when two areas call the police about marijuana at the same rates, police were more likely to arrest people in the area that has more black and brown residents. These disparities could not be explained by crime rates or rates of calling the police.*

  It’s a similar story for police killings. The police would have us believe that every officer who kills someone is in a dangerous situation, encountering a dangerous person, fearing for their lives, and thus forced to use deadly force to defend themselves or others from harm. We’ve all heard this narrative; the police have made it ubiquitous. But it too is a myth. We looked at the data on killings by police and found that police are not only killing people in areas with higher crime rates, but also in areas with lower crime rates. Most police killings began with police responding to suspected nonviolent offenses or cases where no crime had been reported. And at least 57 percent of all cases involved someone who was not threatening anyone with a gun—cases that, in virtually any other country, would have been resolved without the police killing them.* The data is clear that community violence doesn’t explain rates of police violence. The police were choosing to be violent regardless.

  When challenged with these facts, the police construct new narratives to justify their behavior. When we identified more restrictive use of force policies as a solution to police violence, and presented them to the police, the police responded by saying such policies would “handcuff” officers, preventing them from protecting themselves or others from harm. They didn’t have any data to support their conclusions. But we did. It turns out that the police departments with the most restrictive use-of-force policies are also the safest for officers and have similar crime rates as other departments.

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  IF THE CONTROL of information is what has historically provided police departments with the ability to shape an uncontested narrative of crime, criminals, and appropriate response, it is the police unions that have solidified, through contracts, a secondary “justice” system for police that shields them from accountability.

  In my positions in human capital departments in school systems before the protests began, part of my work entailed managing and implementing the labor agreements and teachers’ contracts between the school district and the labor unions. I had seen that these documents contained rules and policies that those who’d never read them simply didn’t know existed, or didn’t realize that the school district operated a certain way because of a seemingly small clause in a contract.

  That made me think about police union contracts as a site to explore.

  It turns out that cities and police unions had been negotiating, behind closed doors, policies that made it nearly impossible to hold officers accountable. If you submitted a complaint of police misconduct too many days after an incident or decided to submit anonymously, contracts in many cities mandated that the police toss it out. If the police take more than 180 days to investigate the complaint, in many cities they have to toss it out. If they find that the officer being investigated has an extensive record of previous misconduct, they can’t use that as a factor in determining discipline. And forty-three of the eighty-one contracts we reviewed required the officers’ records of misconduct to be periodically purged from the system.* For instance, twelve-year-old Tamir Rice was killed by the Cleveland Police Department in 2014. In Cleveland, disciplinary records of police officers are removed from an officer’s file after two years and written reprimands are removed after six months. The clause in the Cleveland police union contract reads: “Verbal
disciplinary warnings and disciplinary written reprimands shall be removed from a police officer’s record after six months, but all other disciplinary actions or penalties will be removed after two years from the date the discipline was administered.”* But, why? Why should these be removed from an officer’s file? It means that when an incident occurs, there’s literally no way of us knowing whether the officer has a pattern of engagement in certain parts of a city, with certain demographics of people, or of manifesting certain behaviors. These clauses are meant to obscure key information from the process of accountability.

  But there are other things that we found that make even less sense. The police union contract in Portland, Oregon, includes a clause that reads: “If the City has reason to reprimand or discipline an officer, it shall be done in a manner that is least likely to embarrass the officer before other officers or the public.”* How that plays out in practice is immensely unclear. But what is clear is that the police benefit from a set of structural protections unavailable to any private citizen.

  It went deeper still. Even in cases where an officer does get disciplined for misconduct, most police union contracts give them an easy way out. Police union contracts in 73 percent of cities give officers who’ve been disciplined the ability to appeal to an arbitrator who can reverse the decision. In most of these cities, either the police officer being investigated or the police union, or both, help select the arbitrator who hears their case.* And so, according to the Washington Post, in places like San Antonio and Philadelphia, seven in ten officers who are fired for misconduct end up getting their jobs back (plus back pay) on appeal.*

  After focusing our analysis on the hundred largest cities, we are now working to analyze another eight hundred contracts, in cities with more than thirty thousand residents. Where union contracts fall off, too often the law itself is structured to protect the police in extraordinary ways. In California, for instance, the law states that if an investigation of an officer takes more than a year, then no discipline can be enacted on the officer, regardless of the outcome of the investigation. And who controls how long the investigations last? The police do, of course. And this matters because in 2015 the San Francisco police department sought to fire nine officers for exchanging racist text messages. But they appealed that decision on the basis that the investigation into their text messages took longer than a year. And the lower court eventually agreed with them and overturned their termination. This is because the law gives them a unilateral right to have an investigation completed at a speed that is not offered to another class of citizens. Luckily, a higher court disagreed with this interpretation, and this is now being litigated. But why should the police have such an extraordinarily different set of rules than everyone else?

  In addition, most analyses and policy solutions regarding police violence focus primarily on men, given that 94 percent of the people killed by police are men. But this is relevant solely if we understand the entire scope of police violence to be actions that result in death. When we start to examine the police violence that doesn’t necessarily result in death, like sexual harassment, sexual assault, and domestic violence, we gain a more expansive understanding of the problem and start to rightly identify the ways that women and members of the gay, trans, and queer communities are impacted by the violence of the police. As one can imagine, this data is even harder to find than information on those killed because in most cities and states, complaint data is not published or even collected in a way that makes it reportable.

  And the laws in some places are working against us. In Louisiana, for instance, the so-called Officer’s Bill of Rights states that any complaint of domestic violence is expunged from the officer’s record if it’s submitted anonymously, which it would likely be to avoid retaliation, and if it’s not sustained by the department, which only one in thirteen complaints nationally are. In Baton Rouge, following the killing of Alton Sterling, Baton Rouge police chief Murphy Paul implored the public to “please stop resisting,” and to always follow the orders of the police, and that if you think an officer has been biased, unprofessional, or acted unconstitutionally, to “pick up the phone and file a complaint.”* He noted that when you do so, “most complaints will be resolved by the police department communicating or articulating to you that we had the legal right to do what we did.”* Police Chief Paul is transparent in highlighting that filing a complaint will not likely lead to anything other than the police department reminding you that the rules are in their favor. It’s also interesting that he asked the public to call to file a complaint, because in Baton Rouge it’s impossible to call in a complaint of a police officer; they must be completed either online or by mail, they cannot be anonymous, and they can be dismissed for a host of factors within ten days, at the discretion of Internal Affairs. This isn’t accountability.

  In 2017, 1,147 people were killed by the police, and officers were charged with a crime in only thirteen of these cases—1 percent of all killings by police. Nine of these thirteen cases had video evidence, most captured by police body and dash cameras.* We will continue to see video be important in bringing about any semblance of accountability in future cases. Body cameras, for instance, began being implemented before there were a clear set of best practices about their use. But now we know that police departments should not be able to upload the footage to third-party sites that use the video for surveillance or facial recognition technologies, the public and the district attorneys should have oversight of how the footage is used and accessed, officers should be prevented from reviewing the footage before completing initial reports, and citizens should be able to know if they have been filmed. Such footage can be an important tool in holding an officer accountable. In the absence of clear oversight, body cameras and other video-based tools can become avenues for surveillance of communities.

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  THE ADVERSE EFFECTS of irresponsible policing in communities are plain enough, and have become a popular topic; but why, I wonder, don’t more people challenge the institution of policing? I’ve now come to attribute the reasons to three things: the first is that people think that the absence of police being indicted, convicted, or fired for occurrences of police violence means that no wrongdoing took place, and therefore no changes are necessary; second, they believe that communities have so much conflict and that consequently policing is such a hard job that they accept instances of police violence as the cost of doing business; and last, people literally cannot imagine a way of managing conflict that is not rooted in negative power, the main style of policing.

  In some ways it all makes sense. For so long the police controlled the narrative. They were the only ones who were regarded as telling the story from a position of credibility. But in this moment, their control over information is slipping, revealing an unchecked institution that is inherently incapable of policing itself and providing the set of services to the community that the community needs and desires.

  As gut wrenching as it is to know the numbers, as infuriating as it is to read policies and contracts that enable brutality, I remain hopeful. I am hopeful because the choices that were made, the choices that resulted in our current state of affairs, are becoming clearer and clearer. The problem with the police isn’t hidden. We can make a series of different choices. Will we?

  FOUR

  Bully and the Pulpit

  The less you think about your oppression, the more your tolerance for it grows.

  —ASSATA SHAKUR

  When I was nine years old, my babysitter put water on a grease fire and our house burned to the ground. My father, sister, and I moved to Grandma’s house then, to a different part of town—leaving our small but separate bedrooms to now share a bed in her living room—about fifteen minutes away. And my sister and I started going to a new school. The thing that I remember most vividly from that year is the walk home from school. I remember the sweaty palms, the dry mouth, the bravado, the focus, the runnin
g. I remember Uncle Barry sometimes meeting us at the top of the hill.

  And I remember the fear.

  There was a bully on our block on the walk home, always present even when I couldn’t see him. And every day, the ten minutes between the school parking lot and my grandmother’s yard were full of anxiety. I’ve thought a lot about that year since then, especially after teaching sixth grade and seeing the way children are taught about power—about who has it and who doesn’t; how to wield it and how to share it; and how one gains or loses it. And most important, what it is.

  I’ve thought a lot more about the role of the bully too—about how he moves, adapts, and survives over time; about his source of legitimacy; about the impact of his power. Of late, I’ve thought about the bully in the context of our present world versus the world that we aim to create for the future, and considering him has transformed the way I think about both.

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  THE CURRENCY OF the bully is fear. It is what he trades in and what he feeds on—fear and confusion. He is violent in the obvious ways that we see and feel, in the physical assaults, but also in the quieter ways, the belittling and the taunts, the mental assaults. His goals are straightforward: to harm you and then convince you that no damage was done or that you deserved it. He aims to strip you of your power, to normalize the interaction so that you are simultaneously traumatized and left questioning if what you experienced actually happened, if what you felt was real.