The Perils Of Over-Regulating The Police: A Case Study

This is Dirt Harry's badge. Seconds later, he throws it into a river. Lots of other police will be doing the same.

This is Harry “Dirty Harry” Callahan’s badge. Seconds later, he throws it into a river. Lots of other police officers will soon be doing the same.

Yesterday, for the third time in my life, I was the first one on the scene after a fellow human being’s death. This time, it was a very close friend and, though it has little to do with this post, a wonderful man. I had headed out to his home because I was worried: an unusually reliable and conscientious individual, he had missed several appointments the last few days and hadn’t been answering e-mails and phone calls. When I was told about this, I immediately suspected the worst, and sadly, I was right.

His car was outside his house, and though it was mid-day and he was supposed to be somewhere else, I could see that the TV was on. In front of his door, getting soaked in the rain,  was a package: it had been delivered there on December 2. I got no response to my bangs on the door. It was time to call 911.

The police responded quickly. I’m not going to name the department, which has an excellent reputation here, and I do not fault the officers, who were diligent and polite, and who set about investigating the scene professionally and quickly. Nonetheless, after a full 90 minutes, after which they could not discern any more than I had before they came, they would not enter the house.

They told me that they could not risk being sued, and that there were elaborate policies and procedures that had to be checked off first. The officers had to track down their supervisor (it was a Saturday), and, they said, more than one official would have to sign off, to protect the department

“He could be drunk; he could be shacked up; he could just want to be alone,” they told me. “The law says his privacy can’t be breached, even by us.”

“But he’s not any of those things,” I said. “He doesn’t do any of those things, and if he were OK, there wouldn’t be a four-day-old package outside.”

“Maybe he took a trip on a whim.”

“He would have called and cancelled those commitments,” I said. “Look, you and I both know that he could be inside, on the brink of death, with every second bringing him closer. The only alternative is that he’s died already. If you won’t do it, let me break in, chase me, and you’ll find him legally as you pursue me. How’s that?”

The police weren’t sold. Finally, after a full 90 minutes, they requisitioned a ladder from a neighbor and were able to see into a second floor window. My friend was visible on the floor, and then they moved quickly, breaking down the door. They were too late by days. They might have been too late by minutes though. All those procedures and policies that forced the police to avoid taking action that in this case, under these circumstances, were prudent and that might have saved a life imperiled.

The lesson is only this: if we cannot trust police to make decisions like this, we obviously are not going to trust them to decide when to fire their weapons. Laws, rules and procedures are rigid, and have to be examined slowly; real life operates in the shadows of uncertainty, among the loopholes, gray areas and ambiguities, and it moves fast. The protests and demands in the wake of the recent police controversies will undoubtedly result in more regulations, policies and laws, but there is good reason to believe that they will also make us less safe rather than more safe, and make it difficult to find reasonable, dedicated, ethical men and women willing to serve as police, a job which, we seem to be deciding, should be subjected to strict liability whether the officer acts too quickly, or not quickly enough—judged, of course, after the results are in.

This is ironic and self-defeating, because what society needs is police officers we can trust to make life-and-death calls under the pressure of reality. That can only be achieved by better human beings in blue uniforms, not by tougher laws, regulations and policies. The laws, regulations and policies, pressed to extremes in response to extreme situations, will kill many more citizens than they protect. They will also drive out the kinds of people we need in police work, leaving us with a less trustworthy profession, as well as a less effective one.

25 thoughts on “The Perils Of Over-Regulating The Police: A Case Study

  1. Jack,

    First of all, condolences for the loss of your friend. It must have been a seriously frustrating experience going through the stress of a probable death and struggling to get through a bureaucracy at the same time.

    That said, I must point out something in the way you have portrayed this sad event. You note that “if we cannot trust police to make decisions like this, we obviously are not going to trust them to decide when to fire their weapons.” And you argue that more regulations are going to make the police even more handicapped in their activities.

    I find this maddening.

    In the case of your friend, the police acted stupidly and refused to take responsibility, blaming regulations. If there was a time to exercise judgment, this was it: as you note, your friend could have been dying. By following bureaucratic regulations, they were ENDANGERING A LIFE, and refusing to take responsibility for it. This was a case of NOT DOING THE RIGHT THING – a sin of omission, if you will.

    The cases of Ferguson, Staten Island and Cleveland are all cases of DOING THE WRONG THING. Sins of commission, not omission, if you will. In all three of these cases, no one had to die; regulations would have suggested a less aggressive approach to policing. But by over-ruling regulations, the police decisions’ effects were to ratchet UP the odds of life lost.

    I suggest you can’t have it both ways. If the effect of increased regulations on the use of deadly force is to reduce the response time in cases like your friends, then this is not a case of bad regulations – it is a case of stupid cops who refuse to take responsibility. Conversely, if officers are over-aggressively defaulting to deadly force, then this is precisely the kind of situation where greater regulation is called for.

    Regulations didn’t cause bad police behavior in your friend’s case – blame-throwing, spineless police did that. And since regulations didn’t seem to restrain aggressive police behavior in the shootings, it’s lost on me how even less regulation would change that for the better.

    • It ought to be clear, Charles,—especially in the context of recent posts— that I am talking about the Ferguson situation only. (Please don’t aggravate me by lumping that situation with the other two.) In Staten Island, neither good judgment nor regulations were followed. In Cleveland, a bad cop who shouldn’t have been hired violated common sense and regulations. These are irrelevant to the post.

      The unconscionable, politically-driven, factually and legally ignorant onslaught against a police officer defending himself will result in dead officers, defiant perps, and a recruitment crisis.

      • Jack, in fact you make it VERY clear that you’re just talking about Ferguson. In fact, your entire treatment of these phenomena is to deny that there is no “phenomena” here at all, no forest at all, just a bunch of trees. Where other people see excessive police violence aimed disproportionately at black folks, you see a string of separately-analyzable events.

        I suspect we both view ethics as largely personal. But just like incitement to riot is a crime along with rioting, and subornation of perjury is a crime along with lying, there ought to be room in your moral calculus to address the underlying causes of the national rash of demonstrations, besides saying they’re wrong on a particular case.

        You suggest, “In Cleveland, a bad cop who shouldn’t have been hired violated common sense and regulations.” NO! What happened in Cleveland was a SYSTEMIC failure. How is “shouldn’t have been hired” NOT a systemic failure? That was not a one-off rogue cop event – a department HIRED that cop.

        Also in Cleveland, the Justice Department has just found “a PATTERN of “unreasonable and unnecessary use of force” that resulted in dangerous and reckless behavior by officers.” That’s systemic, and it’s real.

        You suggest, “In Staten Island, neither good judgment nor regulations were followed.” NO! What happened in Staten Island was straight-up, by the books policy, by a cop who routinely followed what “broken windows policing” has come to mean. How is doing what he’s done hundreds of times NOT a systemic failure? It’s not an exception, it’s the rule.

        And let’s take the Ferguson case head-on. You want to argue the justice of firing shots when a cop feels he’s threatened, particularly by someone larger and aggressive. But a mature cop knows the best confrontation is one avoided in the first place: why was the stop made from within the car, driving by? Why did the officer pursue Brown, rather than waiting 60 seconds for backup? If all you do is analyze the minute decisions going on in someone’s head at the moment of trauma, you miss a whole lot of forest for the trees.

        There are two gigantic patterns here, and you’re not speaking to the ethics of either one of them. One is systemic police abuse, worsened by the post-Iraq free-for-the-taking militarization of municipal police forces.

        But don’t take my word for it: take uper-cop Fran Serpico’s word. He says, and I quote:

        “Police departments are useless at investigating themselves…Today the combination of an excess of deadly force and near-total lack of accountability is more dangerous than ever: Most cops today can pull out their weapons and fire without fear that anything will happen to them, even if they shoot someone wrongfully. All a police officer has to say is that he believes his life was in danger, and he’s typically absolved. What do you think that does to their psychology as they patrol the streets—this sense of invulnerability? The famous old saying still applies: Power corrupts, and absolute power corrupts absolutely.”

        “And with all due respect to today’s police officers doing their jobs, they don’t need all that stuff anyway. When I was cop I disarmed a man with three guns who had just killed someone. I was off duty and all I had was my snub-nose Smith & Wesson. I fired a warning shot, the guy ran off and I chased him down. Some police forces still maintain a high threshold for violence: I remember talking with a member of the Italian carabinieri, who are known for being very heavily armed. He took out his Beretta and showed me that it didn’t even have a magazine inside. “You know, I got to be careful,” he said. “Before I shoot somebody unjustifiably, I’m better off shooting myself.” They have standards.

        But of course, what does Frank Serpico know?

        The other systemic issue is race: I know you hate like the dickens to admit it, but there is institutional racism in this country, and that’s not the same thing as someone consciously saying “I hate black people and want to kill them.” But the absence of the latter psychology (thankfully) does not vitiate, excuse or mitigate the existence of the former.

        And if you don’t think there’s a pattern here, try this from Nick Kristof:

        “White Americans may protest that our racial problems are not like South Africa’s. No, but the United States incarcerates a HIGHER proportion of blacks than apartheid South Africa did. In America, the black-white wealth gap today is GREATER than it was in South Africa in 1970 at the peak of apartheid.”

        I suggest there are some ethical issues there that deserve a lot more exploration than the interior psychology of Officer Wilson when bullets he fired turned Brown into The Hulk. (allegedly).

        • But Charles, outside of appeals to authority (you do know that Frank Serpico is not a man without an agenda, having been abused by his own department, and that he is talking about his experiences from a much darker time in police procedure), you are sill making an untenable argument based on bias. The fact that there is a systemic problem does not mean that any individual case can be assumed to be systemmic. The excessive use of force in Cleveland doesn’t prove in any way that this was the cause of the recent shooting. I was just in Cleveland, and spoke with one guy who knows the other cop in the car, and a Cleveland cop. The shooting cop was a rogue—if he had followed basic procedures, that kid would be alive. If the HR system was competently run, the kid would be alive. If the dispatcher had told the officers that the gun was “probably fake”, the kid might be alive. How can you possibly use this as an example of the systemic problems being debated?

          The same is true in Staten Island. It was a legitimate arrest. It was negligent homicide, at least in appearance—unless the death was caused by intervening cause, like a heart attack unrelated to the choke hold. How can you call that arrest policy, when the reason the death was called a homicide was substantially because the choke hold is forbidden policy?

          And this paragraph seems completely off topic:

          But a mature cop knows the best confrontation is one avoided in the first place: why was the stop made from within the car, driving by? Why did the officer pursue Brown, rather than waiting 60 seconds for backup? If all you do is analyze the minute decisions going on in someone’s head at the moment of trauma, you miss a whole lot of forest for the trees.

          That’s second guessing, and that’s all it is. We weren’t there. The issue in the grand jury wasn’t how good a cop Wilson was—he made mistakes. It was whether he committed murder. That’s all I’m talking about, and all anyone should be talking about. This is exactly like the Zimmerman trail verdict: Zimmerman was an asshole, and that created the situation, but that’s not what got Martin killed. Similarly, what got Brown shot was resisting arrest, attacking the cop, and charging, and systemic problems have nothing to do with any of those. Conflating the issues is a lousy way to understand them.

          I agree: racial distrust is part of the reason for many of these episodes. That does not mean that it is fair and rational to presume, like Eric Holder, absent evidence, that it is a factor in any specific episode. Why do you and others resist that obvious fact?

          • Jack, you claim I’m resisting the “obvious fact” that racial distrust may not be a factor in any specific episode. For the record, I think every case has to be looked at on its own merits, which is what you claim too – isn’t it?

            But since, as you agree, “racial distrust is part of the reason for many of these episodes,” you’ve also got to look at it in every case to see if it played a role, or if it didn’t.

            I don’t get what you think I’m resisting?

            I think we DO differ on one thing: you say that “The issue in the grand jury wasn’t how good a cop Wilson was—he made mistakes. It was whether he committed murder. That’s all I’m talking about, and all anyone should be talking about.”

            For the record, I think we all ought to be talking about something ELSE BESIDES the narrow findings of a grand jury: we ALSO ought to be talking about the built-in biases of the grand jury system as it is being revealed in various cases. And I’m far from alone in urging that ethical analysis be brought to bear on THAT question.

            You continue to bring the issues in Ferguson, Cleveland, SI et al back to SPECIFIC findings in SPECIFIC cases. You’re arguing ethical trees. But there’s an ethical forest out there. So I raise my main question yet again: Where are the ethical issues in the forest, apart from the trees?

  2. Jack — this is very sad. I’m so sorry.

    Your point about rules and regulations baffles me though. Why didn’t you immediately break into the house? Calling 911 and waiting for help to arrive took minutes, additional precious minutes that the police wasted when they arrived on the scene. I doubt you would have been arrested for B&E. My guess is that your decision to call 911 was you yourself feel bound by rules and regulations, so we shouldn’t fault the police for wanting the same protection.

    I always try to do the right thing — even if it means acting and asking for permission after the fact. Maybe I have more leeway to act that way though, given that I am white and female. I don’t know.

    • I’ll tell you exactly why: I wasn’t 100% sure it was Bill’s car. (Later, I saw a name tag between the seats). The officers ran the plates. I also would have assumed that given the evidence the police would go right in. Next time—and with my luck in this area, there will be a next time—don’t worry: I won’t wait for the police.

  3. My condolences on your loss. I truly am sorry.

    ” real life operates in the shadows of uncertainty, among the loopholes, gray areas and ambiguities, and it moves fast.”

    That is one of the absolute best descriptions of life that I have eve4r heard. Now I’ll read the rest of the post.

  4. I’m sorry about your friend.

    It’s bad enough when employees of stores can’t do the right thing for fear of their employers being sued if moral luck doesn’t come down on their side. Police officers should be able to exercise good judgment when the situation warrants it, rather than dilly-dally til some mystery supervisor okays it.

  5. I’m sorry to hear about that. This happened to a neighbor of mine a few years ago. I live in a small town, so the police just opened his door on the word of a neighbor that he needed help (he had a serious heart condition). He was dead, but his coffee was still hot.

    The problem with police forces is not a lack of regulations, it is the people on the police forces themselves. No amount of regulation is going to turn a bad cop into a good cop. Lots of regulation may turn a good cop into a timid, ineffective cop. We need to encourage (as a society) good people to become police officers. We stringent background checks, an end to the segregation of the police from the populace, and some effective methods of firing bad police officers. We need to make police officers trusted and valued members of our communities and they need to BE members of our communities.

    I heard a good example of how NOT to do this recently when talking to a manager of a private security company. He told me he was horrified to find out that three people he refused to hire (because of what he found in his background check) were hired by the TSA.

  6. If you think the over-regulation of police departments has consequences, I can assure you the same negative influences are at work in your local hospital.

  7. A letter to the Washington Post on 12/5 illustrates the attitude that concerns me.

    Robert H. Winter, Potomac, Md. writes in part…

    “Whether Michael Brown was an adult or teenager, large or small, or had hit police Officer Darren Wilson , the issue is whether the officer acted appropriately with respect to the use of deadly force.Too often, situations arise in which the police are in the right yet do not take action to minimize the use of force.

    Could Mr. Wilson have driven a short distance away? Fired fewer shots? Was Mr. Brown’s death the only realistic way for Mr. Wilson to have dealt with the situation?

    Notwithstanding the oft-repeated statements of police authorities and district attorneys, I fear such incidents reflect an attitude that once the police are in the right, the use of deadly force becomes largely discretionary and the potential for an officer to be held accountable largely theoretical”

    This is naive,impractical, and dangerous. Winter, like Jesse Jackson and others who have never been in such situations, thinks it reasonable to place law enforcement officials in the position of having to calibrate precisely whether 4 shots will be deemed reasonable, or whether 5 will result in a life-destroying murder trial for “excessive force”…all while they are in the midst of fast moving, potentially deadly situations. “Could Mr. Wilson have driven a short distance away?” is pure hindsight bias, a “what if?” constructed after the fact. We cannot subject police officers to that kind of scrutiny in a criminal trial context and expect any sane man or woman to accept the job. “Was Mr. Brown’s death the only realistic way for Mr. Wilson to have dealt with the situation?” What kind of standard is that? “If there was any way that the officer might have dealt with the threat that in hindsight would not have killed Mike Brown, then the officer is guilty of a crime.” These are just irresponsible and unfair arguments. If they have any effect on public policy, society and justice will suffer.

  8. Jack, I am very sorry for the loss of your friend. There is a larger issue at play here, and I can only describe it using the same words that an attorney–as well as others recently–on a CNN news program used several days ago. I tried and could not find out her name, but she was extremely coherent and amazingly perceptive about something that I too have noticed over several years and fervently believe.

    There is a movement–and I do not suggest, nor did she, that this involves a plot or a conspiracy or a deliberate master plan–but a movement, a tendency, for police departments across the nation to become more militarized. Certainly that was not an issue with the situation with Bill, nor, actually,I don’t think, in Ferguson. It is however, something that contributes heavily to the general distrust of policemen that you address.

    This is chilling:
    And this:
    A general overview:

    It is hard to convince your child that the policeman is your friend when he is riding in an armored car and holding a Uzi. I am sure this move to a more military police presence is in response to the fear of terrorist threats, but we are not terrorists; we are citizens. One thing comes to mind: When you are a hammer, everything looks like a nail.

    Again, my sympathy at Bill’s death.

    • Someone has to explain to me how this isn’t just an issue of optics over performance. I really don’t care how militarized police are, as long as they are fair, lawful, respectful and good at their jobs. Why should it matter what equipment they use or uniform they wear? I see this whole issue as part and parcel of the anti-military biases generally that have undermined US security abroad. If I’m not breaking the law, I’m not intimidated by an armed police officer.

      The argument really bewilders me when it leads to a whole town burning, with a police force having armored vehicles standing by and watching, so as not to be accused of being militarized. Would critics rather see businesses burn? Apparently so.

      There was no suggestion of militarization in my experience trying to seek help for my friend, just three very nice, apparently capable cops standing around afraid to take action because they didn’t want to be disciplined or sued.

  9. And I made it clear that I was suggesting no issue of militarization in connection with your friend’s death. And I agree with all you said about their hesitancy to act out of fear of being disciplined or sued. I was addressing only one element of your post, that of the deterioration of trust in the police in general, and I heartily disagree with you that the increasing militarization of such is not a major factor in that deterioration. This has nothing to do with, and suggests no criticism of, the military itself. The military is supposed to be militarized. Our police departments are not. As far as those not breaking the law having nothing to fear from the police…
    I could fill the page and then some.

    • But Shelly, what do any of those stories have to do with militarization? Incompetent, botched raids where they go to the wrong house is about incompetence, not equipment. A no knock raid has nothing to do with Militarization either, but police procedures. Mistaken arrests have been around since police were armed with sticks. So I repeat—Someone has to explain to me how this isn’t just an issue of optics over performance. So far, you are making my case.

  10. Police departments have been quasi-military for many years, and it has not seemed to hurt their ability to enforce the law. As early as 1974, Austin, Texas P.D. referred to it’s officers on patrol as “the troops”. S.W.A.T. units have traditionally used what they thought of as “Military” weapons, tactics and mode of dress; never mind that a properly trained infantry squad could and would wipe them out in minutes. Note, also, that most states and/or cities ban the mounting of weapons on the surplus (obsolete) armored and tracked vehicles or helicopters. They do NOT ban a man carrying a weapon being mounted on those vehicles. I also point out that many police officers are ex-military so are bringing to the job an environment with which they are already familiar. Rank structures are similar, and the police in the United States, at least, carry weapons, perhaps as a holdover from the Old West, perhaps not.

    Given the rise in crime rates (see Chicago, Detroit), many of these escalations of Police equipment and training are needed. This became evident a number of years ago when a Los Angeles bank robbery went south and the robbers began shooting at the converging police with automatic (not the semi-automatic versions described as automatic, but rock-and-roll full automatic) assault weapons. The out-gunned police (9 MM pistols and shotguns) did the best they could and, like Israel, vowed “Never again”. Strangely enough, many in the National Media agreed, at the time. So, what we are referring to as the “Militarization” of the Police is being undertaken for 2 reasons: 1) to provide a higher likelihood that the officers will get to, at the end of the day, go home to family, and 2) so that the public, which they are sworn to protect and defend, will also, at the end of the day, get to go home and family.

    Does this increase the likelihood that a perpetrator may not make it to trial? Quite likely. Do I care? Not so much. As I am sure will be pointed out repeatedly, death tends to be relatively final, with no appeal. And, after all, the most dangerous criminal has the right to due process. Unfortunately, crime, violent crime, is not something one does accidentally. It requires a conscious decision, often along with a misplaced almost arrogant sense of invincibility. Getting shot, and probably killed is the most natural consequence in the world of that attitude. Ask Michael Brown. Like it or not he jeopardized the well-being of an armed police officer, apparently arrogantly disregarding the consequences of his behavior and, quite probably putting the officers life at risk. I am assuming that Wilson, like many police officers these days, was wearing a very militaristic bullet-proof vest under his shirt, but, since Ferguson is a fairly poor community (and rapidly becoming poorer) possibly not, so he might have been better off if Brown had shot him, first. At least he would still have a job.

    All this is by way of saying that militarization of departments is not necessarily a bad thing. The use to which the training and equipment is put may be a bad thing, but I have not seen, in any report, any attempt to oppress or exert Nazi-like control over the citizenry. So, am I in favor of the “Militarization”? You bet. I am in favor of anything that makes it more likely that they will be able to survive the work day. And make no mistake, that is always a question for a police officer, just like it is for the combat soldier. Am I also in favor of more and better training? Also, you bet. Need I repeat? And the management, or “command” element of the police need to be taught How and When to use the equipment and training.

    • A well thought-out response, and, actually, I agree with much that you say. I still contend that it is this increased militarization that is responsible for the lessening in the degree of trust the public feels in dealing with the police. And coupled with the undeniable fact that it would take virtually an act of God for a policemen to be indicted for his actions, no matter what they were, only adds to the increasing shift in unease and distrust.

      • The last part, of course, is true. I don’t see why gear and uniforms have any effect on trust at all. I think it works the other way: people who don’t trust the police already are alarmed the more fire-power they have.

  11. I spoke to my neighbour about this and he said in the few times he had been sent to go to somebody’s home to check on their welfare he had called the local hospital and the person had been there each time. He also said it would take at least thirty minutes of checking around the house etc. before having to think about breaking in but that there was NEVER a time when he was unable to contact a supervisor.

  12. That’s a sad story, Jack, and my condolences. It must be noted, of course, that this is hardly an uncommon one. In many police departments- as in so many other endeavors, public and private- people are so intimidated by the idea of litigation or bad press that they go to utterly foolish lengths to avoid it; lengths that defy common sense or even ethics. Under the circumstances that you describe, the responding police having exhausted every reasonable option, they should have forced entry. They should have had that option, in any case. As you say, minutes could have counted.

    BTW: I was involved in executing a forced entry once. In this case, it was a drunken man who had gone berserk, attacked his wife and daughter with potentially lethal force and locked himself in his apartment behind what proved to be a VERY sturdy door. There were two young boys still inside. When he didn’t respond to our calls, I and my partner tried to break it down, only to rebound off the door. My partner, however, was a former lumberjack from Oregon… and knew what to do. He obtained a fire ax from the stairwell and chopped as neat a hole above the door knob as you could ask for. The man in question had actually left the key in the door, enabling me to turn it and gain entry. The boys were terror stricken, but okay. The man was apprehended after a brief struggle. But had we hesitated for 90 minutes, as those policemen of your experience had to, things might have turned out different.

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