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Can We Trust the Police to Intervene in Fellow Officer Misconduct?
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Can We Trust the Police to Intervene in Fellow Officer Misconduct?

The outrage much of the nation and world has expressed at the police killing of George Floyd has been accompanied by demands for greater punishment of all of the officers involved. These demands call attention to an often-overlooked element of the problem of police violence: those subjected to unlawful police practices largely depend on other police for protection, but this law enforcement action is typically withheld. This deeply racialized combination of over-policing and under-protection enables and aggravates police violence, contributing to its persistence, frequency, and harm. Calls for justice in this case, as in others, require that we acknowledge the complicity of all of the officers at the scene of this crime and hold police professionally and legally accountable for their unjust actions and inaction.

It is noteworthy that all four of the officers at the scene of the Floyd killing were fired by the Minneapolis Police Department (MPD) within a day of the incident, as video of the killing went viral. In past incidents of this sort, if anyone was suspended or fired, it was usually only the officer who had used excessive force. More often than not, nothing happened to police bystanders who failed to act as they are ethically and legally required.

What enabled this quick termination? In 2016 the MPD amended its use of force policy to clarify a “duty to intervene,” requiring every officer “present at any scene where physical force is being applied to either stop or attempt to stop another [officer] when force is being inappropriately applied or is no longer required.” Consistent with federal law requiring police to intervene when aware that another officer is violating someone’s civil rights, the MPD policy clarifies that when officers know another officer is using excessive force, they must try to stop it. And so, following George Floyd’s killing, the MPD fired not just the officer who used deadly force, but two officers who held George Floyd down, and a fourth who stood and watched. 

Of course, what this policy did not do is actually stop “inappropriately applied” force – crushing a handcuffed man’s throat and depriving him of oxygen – from being used in the first place, or cause another officer to stop what was “no longer required.” Such an intervention would likely have saved George Floyd’s life. The policy did not prevent another police killing.

In our research on the “duty to intervene,” we stress that such policies are alone unlikely to change officer behavior, in part because the obligation is often vaguely and narrowly framed.

The duty to intervene is frequently riddled with caveats requiring legal interpretation: reasonable, excessive, appropriate, necessary. This is not an accident. In Graham v. Connor, the United States Supreme Court held that whether an officer’s use of force is justified is based upon whether it was “objectively reasonable.” Which is to say, when a jury sits in judgment of an officer, months or years after a use of force took place, it must try to guess whether a hypothetical reasonable officer, if placed in the same situation, would also have done what the actual officer actually did at the time. Given the ubiquity of explicit and implicit racism and other biases, we can see how white officers who victimize nonwhite civilians are routinely granted wide latitude in assessments of the reasonableness of their violent acts, by fellow officers, prosecutors, jurors, and the general public.

Limits of duty to intervene policies are bound up with broad latitude in defining excessive force. Law and policy are unclear as to what excessive force is, expecting officers to “know it when they see it.” Except they don’t, and unlawful and often racist police violence persists. Similarly, police routinely fail to perceive their duty to intervene or to act on that obligation.

Despite the rewriting of MPD’s use of force policies, millions spent retraining its officers, and the implementation of a raft of policy recommendations from President Obama’s Task Force on 21st Century Policing, MPD officers still did not recognize what we all did upon watching the smartphone video, and what other civilians voiced at the scene: that an officer was killing Floyd through his use of excessive force. Other officers present either did nothing or actively assisted while George Floyd kept exclaiming, “I can’t breathe.” Perhaps the officer who stood and watched realized it was wrong, but decided that a deep-seated expectation to “back the blue” outweighed his duty to intervene. Policing scholars have long noted how this kind of distorted sense of loyalty hampers meaningful police reform and allows police misconduct to persist.

During the protests following the killing of George Floyd, a smartphone camera recorded a Buffalo Police Department (BPD) officer shoving 75-year old Martin Gugino to the pavement. Shortly after the officer’s suspension, all 57 active members of the BPD emergency response team resigned from the unit in protest, according to the BPD police union. As in Minneapolis, this case illustrates that police officers and organizations are steeped in an organizational culture of impunity, an expectation that they will not be held to account, doggedly defended by police unions, and reinforced by civil immunity in law. So accustomed are officers to deference to their judgment, that it is unsurprising that the 57 officers’ protest was directed not at the use of excessive force against an elderly man, but at BPD’s decision to hold a fellow officer responsible for his actions.

This closing of ranks around a fellow officer when their use of force is questioned recalls and has thankfully resurfaced the case of Buffalo Police officers Cariol Horne. In 2006, Horne, a Black female BPD officer, attempted to physically restrain her white male partner, Officer Gregory Kwiatkowski, who she observed strangling an already pummeled and handcuffed Black civilian. Law on the books is clear in requiring police to intervene if they are aware of another officer violating someone’s civil rights, as in this case, but the law in action is another matter. 

After Officer Horne courageously performed that vital law enforcement function of policing another officer, she was then herself assaulted by her partner Kwiatkowski in an attack so violent that she lost several teeth. Despite her apparently upstanding police work, Officer Horne was charged with 13 criminal counts, including obstruction, and eventually removed from the police force. Further conveying disdain for her intervention, the city fired Horne, a 19-year veteran, withholding her pension as an added sanction, and the police union refused to represent Officer Horne in an appeal. For his part, Kwiatkowski continued to serve as a police supervisory role of lieutenant, despite numerous infractions, until he was allowed to retire (not fired) following an investigation of his use of excessive force – yet again – in 2009. 

We know the costs of inaction and keep returning to reforms proven not to work. Costs include continued police violence directed in particular towards communities of color,  brutalization of police cultures that remain immune from civil and criminal liability, and resulting civil unrest. As the Kerner Commission noted back in 1968, the kinds of protests filling our streets today have almost always been ignited by acts of police brutality or excessive force. After every uprising, commissions investigate what happened, recommend some mix of retraining and policy reforms, and police departments swear to rebuild (sic) trust with communities. 

There is no past trust to return to and legalistic fixes and policy reforms premised upon the idea that rearrangements of words in policy, like some incantation, will convince officers to stop using excessive force or to intervene when they observe it, just do not work. Following every policy change, departments retrain officers on the new line between justifiable and excessive force, as if they are operating systems we can patch with new code. We need a transformative change in police culture, and it is unclear if this is possible. Calls to defund and abolish police challenge us to be more honest and intentional about this need for transformative change. 

Whatever the future of public safety, we will need authorities “standing up” for equal justice, rather than “standing by” while fellow officers brutalize the people they are sworn to protect. Upstanding police action must be more common than aiding and abetting police bystanders if police violence is to end, and policing is to gain broad societal legitimacy.

This may sound naive or inconsequential. It is not. Cariol Horne suffered greatly but may have saved a man’s life. On March 31, 2020, in Seattle, an officer removed another officer’s knee from a protester’s neck, limiting harm. News media praised the Seattle intervention as heroic and exceptional, which is telling; though law and policy often require this of police, the public hardly expects it. 

We hear so much of police bravery, yet rarely in relation to the vital work of policing fellow police. Such acts should be expected, supported, and celebrated, as norms that can transform police culture and public expectations of policing and public safety, and actively ensure greater equality of protection under the law. Ultimately, police culture will only change when we address the racial animus and punitive excess of the broader political culture of which policing is a part. Until we do that, we will suffer the familiar pattern of unlawful police violence, enabled by fellow officers withholding police protection, and the public demanding an end to this injustice. 

 

Peter A. Hanink is a professor of Criminology & Sociology at California State Polytechnic University, Pomona. His research focuses on race and policing.

Anjuli Verma is a professor of Politics at the University of California-Santa Cruz. Her research focuses on punishment and inequality, the politics of law, and social change.

Geoff K. Ward is a professor of African and African-American Studies at Washington University in St. Louis. His research focuses on the legacies of racial violence.

 

Suggested citation: Peter A. Hanink, Anjuli Verma and Geoff K. Ward, Can We Trust the Police to Intervene in Fellow Officer Misconduct?, JURIST – Academic Commentary, June 19, 2020, https://www.jurist.org/commentary/2020/06/hanink-verma-ward-trust-police/.


This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at commentary@jurist.org


 

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