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Putting law in order, part 1 of 2

After the killing of George Floyd by Minneapolis police officer Derek Chauvin and the ensuing protests that swept the country, President Donald Trump repeatedly mentioned the need for “law and order,” using the well-worn phrase as if it were one word with a single, self-evident meaning.

In the 1960s — a time of civil rights and anti-Vietnam War protests — criminologist Jerome Skolnick argued that law and order are not the same, nor are they complementary. For Skolnick, in democratic societies such as the United States, law AND order are in conflict and always will be. Herein lies a major problem of policing.

We require police to maintain order but do so under the rule of law that emphasizes the rights of citizens — the right of free speech, the right of assembly and the right to protest, for example. No such problem exists in totalitarian countries such as North Korea and China. In these societies the “rule of law” does not exist, and police can be as heavy-handed and violent as need be in maintaining order, the fundamental goal of totalitarian regimes.

If Skolnick is correct in his law-and-order interpretation, how is it that some police forces in this country drift (or make a more dramatic and conscious shift) towards preserving order at the expense of the rule of law? One key factor is a police subculture that encourages, condones or even demands that police engage in the use of excessive force in some circumstances.

The Christopher Commission — the investigatory body that critically examined the Los Angeles Police Department in the aftermath of the 1991 Rodney King beating that triggered protests and riots across the country — found that officers who engaged in brutality were treated leniently at the command level as their behavior did not violate the department’s “internal moral code.” Anthony Bouza, a 24-year New York Police Department veteran and commander of a Bronx precinct, has suggested that in some departments, “Cops develop the sense that they can exercise power without too great a risk of being called … strictly into account for its use.”

The Commission to Investigate Allegations of Police Corruption and the Anti-Corruption Procedures of the NYPD (1992) found that a willingness to abuse people who challenged police authority is a way for officers to demonstrate they are tough cops who can be trusted by their colleagues. The commission’s report stated: “Brutality, like other forms of misconduct, thus sometimes serves as a rite of initiation into aspects of police culture.”

In what has been called the “Dirty Harry problem,” so named for the no-nonsense, inclined-to-use-physical-force San Francisco detective made famous by actor Clint Eastwood, some officers resort to “dirty means” such as intimidation, violence, even physical torture in dealing with individuals they determine are guilty.

The commission investigating NYPD corruption (noted above) stated: “Officers also told us that it was not uncommon to see unnecessary force used to administer an officer’s own brand of justice: a nightstick to the ribs, a fist to the head, to demonstrate who was in charge of the crime- ridden streets they patrolled and to impose sanctions on those who ‘deserved it’ as officers, not juries, determined.” One Bronx police officer told the commission he was called “the Mechanic” because he routinely “tuned up people” — police slang for beating people up.

During the weeks of protest after the George Floyd killing, the police in Minneapolis and other cities have been highly criticized for being too eager to engage in violence, even when physical force was not necessary, or at least not the first (or best) alternative to utilize in a situation.

In a recent opinion piece, James Comey, former FBI director and deputy attorney general, stated the pressure to conform in law enforcement is “extraordinary,” noting this makes sense as police officers depend upon each other, often for their lives. In addition, the belief that much of society hates law enforcement makes the police subculture especially strong as the perception of an outside threat almost always increases in-group solidarity — an “us versus them” world view.

Comey outlines his concern about a law-enforcement subculture that views police as “warriors standing as the last line of defense in the battle between order and chaos.” If Comey is correct about a warrior mindset among some police, Secretary of Defense Mark Esper’s statement that we “have to dominate the battlespace” and President Trump forwarding a tweet comparing protesters to terrorists only reinforces this perspective, further driving a wedge between the police and many people in communities they are sworn to “protect and serve.”

According to Comey, contributing factors to police violence include bad cops moving to other departments, a culture of lying in “many” forces, the overuse of SWAT and the poor physical fitness of some officers “which makes all encounters rachet quickly to weapons and other tools.” Regarding lying, police being less than truthful at all phases of an investigation as well on the witness stand is referred to in some departments as “testilying.”

It’s hardly surprising that so many African Americans and police officers see each other as the enemy. From the early 17th century when the U.S. was a British colony, African Americans have experienced 400 years of racism, including almost 250 years of legal slavery. The police did not create economic, political and social inequality in this country, but have been given the responsibility of maintaining order under the constraints of the rule of law in a society with ongoing racial tension that sporadically erupts into violence. (Beginning with the post Civil War period of Reconstruction — 1865 to 1877 — the overwhelming number of racial violence victims have been African Americans).

Speaking of how George Floyd died, Chuck Wexler, director of the Police Executive Research Forum, states that “no police academy that we know of teaches a police officer to use their knee, to put it on their neck … because that can impact breathing and their carotid artery … so when police look at that video they are shocked those tactics were used.” Video of the incident shows that Floyd was unresponsive the final three minutes Officer Chauvin was choking him.

Was officer Derek Chauvin a “bad apple” in an otherwise rule-of-law-oriented department, or was he just another bad apple in a thoroughly rotten bushel, an order-above-the-rule-of-law police force? Have some (many or most?) police departments moved from a rule-of-law orientation to one of maintaining social order at any cost? If so, has this shift come primarily at the expense of people of color and the poor? Could a George Floyd-type killing take place in all-white, affluent neighborhoods? Will meaningful police reform result from Floyd’s death, or in the wake of the protests will it be police business as usual?

George J. Bryjak lives in Bloomingdale and is retired after 24 years of teaching sociology at the University of San Diego. A list of sources will accompany part 2 of this essay.

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