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Better policing requires a fundamental public distrust of the police

police-beating-kids-2By Simon Davies

Earlier this week, police in the rugged US state of New Mexico settled a $1.6M law suit brought by a drugs suspect who had been unlawfully subjected to a humiliating array of cavity searches and anal probes.

The lawsuit, filed in January 2013 by David Eckert against the Deming and Hidalgo County sheriff’s office, had claimed that police sought a search warrant to enter Eckert’s cavity on the basis that they thought he appeared to be clenching his buttocks when he got out of his car.

public_corruption_1Precisely how police had reached the conclusion that the man was clenching his buttocks remains unclear.

Even though officers had little more than speculation to justify the first cavity search (which had failed to produce any results) they reportedly then allowed arrogance and obsession to obstruct common sense. This fuelled an escalation of bad policing choices as officers kept on demanding increasingly intrusive procedures.

Two X-rays, two digital probes of his anus, three enemas, and a colonoscopy failed to discover the slightest trace of the drugs that police claimed he was hiding. To add insult to injury, the local hospital then stuck Eckert with a $6,000 bill for the ordeal.

Seasoned observers of American law enforcement culture will respond that Eckert’s treatment falls into the more mundane end of the spectrum of police misconduct, which tends to range from the disturbingly bizarre (a highway patrolman who recently arrested and handcuffed a fireman who was attending the scene of an accident) to alleged outright murder.

This frequent high-profile coverage explains why in recent times many people have come to suspect all police officers of potential criminality. Older citizens may tell you they formed this view soon after the infamous 1991 covert video of Los Angeles police brutally beating the intoxicated motorist Rodney King.

You could also argue that to hold the police in general suspicion is only right and fair, given that new policing techniques of mass surveillance assume that every citizen is a potential criminal.

Such instances can trigger an instinctive view that until proven otherwise, we should assume that each officer might engage in unlawful, unethical or legally questionable actions in the course of their work.

On a more analytical level you could also argue that to hold the police in general suspicion is only right and fair, given that new policing techniques of mass surveillance assume that every citizen is a potential criminal.

This latter argument unnerves me. If we believe police are wrong to support a culture of mass surveillance in which the burden of proof and the presumption of innocence are reversed, then we’d be foolish to go down that same road (or at least, we’d be foolish to go down that road without careful thought).

In my view, although both of the above grounds might be emotionally valid reasons to mistrust police, they are also intellectually unsafe.

An act of aggression by a dog reflects upon the breed rather than the species (and definitely upon the owner rather than the breed). Similarly, the misbehaviour of ‘n’ quantity of police should not in itself form the basis of our view of the entire species. There are other considerations.

Without wishing to strain the canine metaphor, there are parallels between the police world and the dog world in which both breeds can become institutionally bad. The challenge is to determine the tipping point when a breed becomes measurably unstable and dangerous – and in what circumstances.

I believe the sheer number of high-profile instances of police misconduct provides no real help with this challenge. There may well be – to pluck a figure from the air – a million online reports of police abuse. Or three million. These are sensational and powerful cases, but they are dwarfed by a greater invisible number of lawful interactions between police and public. At what point – statistically – does a problem move from marginal, to persistent, to endemic? Who sets the statistical threshold that determines when police misconduct has reached the point of systemic corruption? Sadly, there are no such parameters.

A police officer is totally dissimilar to you or I. To believe otherwise would be to go along, child-like, with the propaganda of our school years.

There are however – beyond those grounds – several compelling reasons that should persuade everyone to fundamentally mistrust all police. Indeed – contrary to urban myth – fundamental public mistrust is essential to good policing.

This, of course, is not the message many of us were taught at home and at school. We were led to believe that all police are fundamentally decent people whose task is to predictably and fairly serve the public. At the heart of this view was the line that a police officer is “just like you or I”.

This is a falsehood.  A police officer is totally dissimilar to you or I. To believe otherwise would be to go along, child-like, with the propaganda of our school years.

And to continue believing, as thinking adults, that mistrust of police will lead to a breakdown of social order is plain illogical. In reality, any mature citizen should be deeply suspicious of anyone who enjoys such sweeping, erratic and (often) unaccountable power.

At many levels, police officers are agents of the state. Those that are not robotically programmed to seek out and destroy illegality in all its forms, are – to put it bluntly – corrupt hypocrites who bend the rules to suit their own personal belief system.

Authorities legitimate this latter endemic misconduct with the description “Discretion in Policing“. Discretion in policing is in fact “discriminatory policing”, and is a critically important device to ensure that law enforcement and judicial systems do not become overwhelmed with cases. It is also the very reason why police are not like you or I and the very reason why police should not be trusted.

“What harm can it do”, you might exclaim, “when officers turn a blind eye to a bit of dope smoking in a field?”police-brutality

As it turns out, such pliability does enormous harm. Giving police so much flexibility provides legislators with a heat sink to stabilize difficult and unfair laws. If police were required to unequivocally enforce every violation they encountered, the lawmakers would soon be forced to re-evaluate what they put into the statutes. It also provides police with licence to discriminate limitlessly against people they don’t like.

Of course, for the moment, the majority seems happy with the status quo. Because the police are “just like us” we trust that they go soft on the “right” people (insert preferred race, gender, age, sexuality, profile or social class here), focusing their prosecution efforts on the sort of people we don’t like (insert preferred race, gender, age, sexuality, profile or social class here). No points for guessing which groups end up on the better side of the discretionary equation.

Until police are required to stop bending the rules I must continue to assume that they are all guilty of corruption. That is an ethically sound position.

It’s unsafe to “fundamentally” trust any agent of power. Such trust is, at best, a fragile work in progress based on a constantly shifting tension with the public.

I am taking into account the reality that police are routinely briefed on current prosecution guidelines and case law, but Discretion in Policing moves beyond this realm into selective discrimination. Yes, removing flexibility from policing invites all sorts of nightmarish scenarios, but until we come to grips with the true dangers of the current system we are stuck with an extremely volatile policing environment.

I’m one of the many who believe it’s unsafe to “fundamentally” trust any agent of power. Such trust is, at best, a fragile work in progress based on a constantly shifting tension with the public. An intrinsic trust in the agents of power of the state helps neither their evolution, nor a healthy interaction with the public. The public and police need to know precisely where they stand with each other, rather than being subjected to random negotiation.

Furthermore, widespread acclamation of agencies often results in an apologist culture and institutional complacency, rather than a desire to improve the true basis of trust.

A, perhaps, even more compelling reason to mistrust police is their increasingly complex institutional nexus. When we deal with police these days we are interacting with the front-end of organisations that are risk averse and highly strategic. On this point I side with renowned British FOI campaigner Heather Brooke, who observes:

“Many of us are under the delusion that the police exist solely to deal with crime and keep us safe. That is to ignore the major focus of many of today’s top cops on managing reputation – both of their force and, by default, their careers.”

This introduces an important dynamic that makes the “police are just like us” argument even more unsafe.

When I deal with the police, I expect ruthless adherence to law and I require a respect for truth and for process. Sadly, that congruence seems unlikely anytime soon. In the meantime, we should continue to promote a healthy scepticism of the police. It’s nothing personal. Police are only human.

And that’s the problem.