Tag Archives: George Floyd

Keenan Anderson Lived Through Being Tased

Why the Police Had to Deal with Keenan Anderson

Keenan Anderson was high on cocaine and weed on January 3, 2023, at about 3:35 in the afternoon. He was driving his BMW at the intersection of Venice Boulevard and Lincoln Boulevard in Los Angeles. Driving under the influence of drugs or alcohol is dangerous and illegal even if the driver doesn’t crash, but Keenan Anderson did crash his BMW into other cars. Instead of remaining at the scene, as the law requires, Anderson ran from his crash.

Next, Anderson apparently tried to carjack an Uber driver, but failed to get into the car and continued running. The driver said, “I am Uber driver and he was trying to steal my car while he hit other cars right here.” The driver did not use the word carjack, but civilians rarely use technical crime labels. If the driver was in the car when Anderson tried to “steal it,” then Anderson committed an attempted carjacking. The driver may have been standing near the car while Anderson attempted to steal it. This seems less likely because Anderson would need a key to start the car. It also seems unlikely that an Uber driver would have his car parked and be standing near it, rather than driving it to a fare, or driving it to an area where he could expect a fare. Even if Anderson were only trying to steal an empty car, that’s still grand theft of an automobile, which is a felony, although less serious than carjacking.

Bystanders saw the crash and watched Anderson run. They flagged down an LAPD officer who saw Anderson running into the street. The officer radios in the call, describes it as a possible DUI, and asks for backup.

The Stop

The officer approached Anderson, who was running in the middle of the street. It’s important to understand that it is illegal to run from the scene of a traffic collision, and it’s illegal to run in the middle of the street. Although Anderson was not protecting himself from being hit by a car, the officer protected Anderson and everyone else by ordering Anderson out of the street. Anderson said, “somebody is trying to kill me” but wouldn’t say who, and eventually got out of the street.

The officer told Anderson to sit on the sidewalk. Anderson wouldn’t sit down at first, and said things that didn’t make sense. Instead of telling the officer that he was high and had crashed his car, he told the officer that his car broke down and that he was asking for repairs. The officer stayed with Anderson and spoke to him for about 7 minutes.

Then Anderson got up and tried to leave. He asked the officer for water; the officer agreed. He asked to sit in a place where he could be seen; the officer agreed. But he wouldn’t sit down. The officer said, “I don’t want you in the road” but Anderson ran away from the officer back into the intersection.

The officer caught back up with Anderson in the middle of the road. He yelled at Anderson to get on the ground. Anderson complied. He told Anderson to get on his stomach. Anderson did not get on his stomach. Other officers came to help put handcuffs on Anderson, who was becoming more and more irate. He was shouting things that didn’t make sense. The officer said, “Keenan, relax!” But Anderson did not relax and shouted, “they are trying to kill me!” The video doesn’t not show the officers trying to kill Anderson or hurt him in any way.

As Anderson continued to try to avoid handcuffing, the officers warned him 13 times that if he did not stop, they would tase him. He did not stop. Anderson shouted, “these are actors!” One black officer had an elbow near Anderson’s neck as the officer attempted to grab Anderson’s wrist. A third officer warned the black officer “watch your elbow,” and the black officer moved his elbow.

Officers were able to put handcuffs and leg restraints on Anderson, as Anderson said, “This is an act… they’re not police.” After he was handcuffed, Anderson said, “They think I killed C Lo… They’re trying to sedate me… I know too much… they sedated me.”

Anderson was Given Immediate Medical Care and Taken to the Hospital

After Anderson was restrained, Anderson was conscious and speaking. He continued to make claims that were not connected with reality, like “I know too much” and “they’re trying to sedate me.”

Officer rolled Anderson on his side to make sure that he could breathe while he was restrained.

Officers let paramedics from the Los Angeles Fire Department examine Anderson to make sure that he was not hurt by the taser.

LAFD could not take him to a hospital in the fire truck, so they waited for an ambulance. Anderson was placed in a wheelchair.

The ambulance arrived five minutes later and took Anderson to the hospital. Four and a half hours after he was arrested he died from a heart attack.

The Toxicology Unit of the Forensic Science Division tested Anderson’s blood. They found cocaine metabolite and THC.

The situation was summarized by the Uber driver, who can be heard on a cell phone recording. He says, “That guy right there, he caused that accident, he was trying to steal my car. Yeah, the police is doing the right job right now. Don’t think that the police is trying to abuse him.”

The Arrest Video

There are a lot of videos about the death of Keenan Anderson. Most of them are short, sensationalized news segments that don’t show the complete arrest. LAPD put out a longer version that appears to contain all the relevant body camera video, along with commentary from the Department. It is age-restricted and can be seen here.

This incident is a test for the body worn camera and the anti-police movement. Body worn camera should also protect police in situations like this, where the officers acted appropriately and the suspect did not. That’s one of the reasons why police agencies agreed to the cameras.

But if media refuses to show the actual video, or edits in a deceptive way, or gatekeeps the video in a way that makes it difficult for people to see what actually happened, then the police agencies don’t get the benefit of the video.

Did Tasers kill Keenan Anderson?

Keenan Anderson’s decision to drive while high caused his car crash. His decision to get high probably contributed to his decision to try to carjack the Uber driver. His decision to get high probably contributed to his decision to run from the cops. In other words, if Keenan Anderson had not done drugs, this would not have happened. The first cause of Keenan Anderson’s death is Keenan Anderson.

Did the officers contribute to his death with their tasers? We will have a credibility answer after an autopsy. In the meantime, there is “no consensus” that tasers are dangerous to the heart. Even among those who believe that tasers are dangerous to the heart, the danger presents at the time of the taser use, not four hours later in a hospital. It’s important to remember that Anderson’s heart was beating after the incident, in the ambulance, all the way to the hospital, for four and half hours before his death. But the electrical effect of the taser was long over when he died.

There is a consensus among doctors that cocaine kills in the exact way that Keenan Anderson died. Cardiotoxicity induced by cocaine can result in sudden death. In other words, cocaine can cause a heart attack. Cocaine or its metabolites can stay in your system for 2-3 days.

Notes

Keenan Anderson’s family is asking for $50 million dollars for his death. That might give them a reason to shade the story in their favor.

Featured image from PJ Media.

The Minneapolis 8

George Floyd was killed in Minneapolis. Days later, the City Council pledge to dismantle its police force, saying that it cannot be reformed. Although they failed to deliver on that pledge, they cut the police budget and officers began leaving. Crime went up, and residents were force to sue their own city just to get the minimum number of police required by the City Charter. But the plaintiffs, called “the Minneapolis 8,” actually managed to force the City to refund the police. This victory for common sense may cause a change in the conversation around policing.

Minneapolis Defunds the Police

Derek Chauvin murdered George Floyd on May 27, 2020, causing national outrage and protests in Minneapolis. Instead of blaming the officer that killed Floyd, many activist blamed the police force as a whole. They wanted to punish everyone at the Minneapolis Police Department by defunding the police. Instead of having an honest conversation about the consequences, local leaders decided to go along with the tide of resentment against the police.

But there were warning signs from the start. Jacob Frey was the mayor of Minneapolis on June 6, 2020. Thousands of protesters outside his house asked whether he supported defunding the police. He said, “I do not support the full abolition of the police.” He was met with chants of “shame!” and “Go home Jacob, go home!” He fled his own house as the protesters chanted at him.

The City Council did not take the lesson. The next day, on June 7, 2020, members of the Minneapolis City Council pledged to “begin the process of ending the Minneapolis Police Department.” They described the “police-free future.” The MPD “cannot be reformed and will never be accountable for its actions.” Councilmember Alondra Cano said, “we should and can abolish our current Minneapolis police system. Council Member Jeremiah Ellison said, “This council is going to dismantle this police department.” They were standing above a sign that read, “DEFUND POLICE.”

The outright abolition of the MPD would require an amendment to the city’s charter. That’s because the charter requires a police department. Section 7.3 provides: “The City Council must fund a police force of at least 0.0017 employees per resident.”

In August, efforts to change the charter failed. The city’s Charter Commission voted to block an amendment that would dismantle and remove the city’s police force. This is a group of city volunteers appointed by a judge. They pointed out that the proposal did not comply with several different laws, including public input laws.

Then, a proposal to cut the size of the force by 15% was voted down by the Council.

By the fall, crime was up 25%, driven by big jumps in car burglaries and shootings. In September, many council members backed away from their pledges. But the council continued to try to weaken the department.

On December 10, 2020, the Minneapolis City Council cut the Minneapolis Police Department budget by 4.5%. The Council used they money to fund an Office of Violence Prevention, a group of mental health professionals who would respond to calls for service without the aid of the police. The council’s pledge caused many officers to quit.

Crime Went Up After the Police Were Defunded

The spike in crime during and after the Council’s defund pledge was “extraordinary,” according to U.S. Attorney Erica MacDonald. Gun violence surged in the summer of 2020. Violent crime was up 17% across Minnesota in 2020. There were 48 murders in Minneapolis in 2019. There were 84 in 2020, and there have been 67 as of September 11, 2021. Murders in 2021 are on pace to surpass murders in 2020.

The murder count represents only a small fraction of gun crimes. Data show a record number of gunshot wounds reported since last year. In the first six months of 2021, Minneapolis surpassed shots fired citywide in all of 2019, according to ShotSpotter activations, shooting reports and other data tracked by local law enforcement agencies. This year is on track to surpass 2020s record-high 9,600 gunfire reports. The past 20 months now account for almost a quarter of the 70,000 gunshot incidents reported in Minneapolis since 2008.

Frontline, Minneapolis’ bloody summer puts city on pace for most violent year in a generation, (9/11/2021).

The Lawsuit

City residents became increasingly frustrated with rising crime. Cathy Spann and seven other Minneapolis residents sued the city. They pointed out that the City Charter required a minimum number of police in the city. Efforts by the City Council and activists had reduced the size of the police force below that minimum. “It is about all of us coming together to make a difference to stop the gun violence that is in our city,” said Spann. “We walked outside and I pulled this bullet out of my house. Out of my home, out of my siding,” said another plaintiff. “Every single night on any block in this neighborhood you can hear gunshots!” Spann said. “Every single freaking night!”

Some of the Minneapolis 8. Source: KSTP.

The defendants argued that no plaintiff had standing to bring a lawsuit, since none had actually been hurt. The judge rejected this claim and allowed the lawsuit to go forward.

In June, Judge Jamie Anderson granted a writ of mandamus: the Minneapolis 8 had won. In her decision, Anderson said the Minneapolis residents were able to prove that the city’s rising crime rate was caused by a lack of officers. The City Council had violated the charter by “their failure to support and fund the police.” The Council conceded that “the City Charter creates the obligation for [the Council] to properly fund the police force.”  Mayor Frey, who was booed out of his own house in 2020, was deposed in the lawsuit. He “acknowledged” that “the uptick in violence we are seeing” “is because police officers are needed.”

The judge concluded that the council “[has] failed to perform an official duty clearly imposed by law.” She ordered the city to hire more officers. Specifically, she ordered the city of maintain at least 730 officers, up from 690 as of April.

Where Are We Now?

The City Council and activists haven’t given up. Advocates of defunding police support a ballot initiative this November. Under the Yes 4 Minneapolis initiative,  the Minneapolis Police Department would be replaced with a Department of Public Safety, eliminating the city’s required minimum number of officers per capita and replacing some with social workers, mental health experts and crisis managers — effectively defunding the local police by reallocating funds to other city services. Critics say the initiative would simply rename the police force and allow the Council to declare victory. Even the website for this initiative says that the amendment neither abolishes nor defunds the police.

Other cities watched the Minneapolis experiment closely. For example, Los Angeles also moved to defund the police at the city and county levels. But crime is on the rise in Los Angeles too. And many local politicians there want to avoid the embarrassment suffered by the City Council in Los Angeles. For those of us that pay attention to crime and public policy, the Minneapolis experience seems to demonstrate that defunding the police is like cutting off the nose to spite the face. The effect of such a policy is only more pain in poor communities of color. Compassion for those communities requires more resources, not less, devoted to them. And physical safety is a bedrock government service. Without safety, other services are impossible.

Notes

Reddit has a bunch of cynical takes:

Comment from discussion [account deleted]’s comment from discussion "Judge rules Minneapolis must hire more police officers to abide by city charter".
Comment from discussion Just-curious95’s comment from discussion "Judge rules Minneapolis must hire more police officers to abide by city charter".
Comment from discussion DriveThroughLane’s comment from discussion "Judge rules Minneapolis must hire more police officers to abide by city charter".
Comment from discussion [account deleted]’s comment from discussion "Judge rules Minneapolis must hire more police officers to abide by city charter".

The Counter-intuitive Liberal Case to Fund the Police

Matthew Yglesias has a piece in Vox titled, “The Case for Hiring More Police Officers.” In it, he sets forth a liberal rationale, not for defunding the police, but for doing the opposite. It is thoughtful and logically written. Yglesias also makes the point that hiring more police would do more than reduce crime; it would also be politically savvy for liberal politicians. His colleague German Lopez has written about President Trump’s efforts to defund the police. Both are worth a read.

The Idea Is Popular

Yglesias wrote his piece in February of 2019, after Black Lives Matter became a movement, but before the death of George Floyd. He cited several studies showing the idea was popular at that time, both with Americans in general and with the black community. But would it still be popular now? A June 9-10 2020 YouGov poll still shows that only a tiny fraction of Americans want to cut police funding. When asked, “do you favor or oppose cutting funding for police departments?” The responses were favor 25%, oppose 53%. In other words, cuts are opposed by a majority of Americans. Only 24% of Americans agreed with the statement “[p]olice reform hasn’t worked. We need to defund police and reinvent our approach to public safety.” Only 33% of blacks agreed with that statement. The poll is a treasure trove of data on criminal justice: you should read it if you have time.

The Cato Institute has also done recent polling on this issue. You can read the details in their article, “Americans Don’t Want to #Defund the Police, Instead They Agree on Reform. The title says it all. They go on: “[i]t’s also useful to keep in mind that few Americans of any racial group support some of the more radical changes demanded by some activists. For instance, few people support calls to abolish or defund the police: 9 in 10 black, white and Hispanic Americans oppose reducing the number of police officers in their community—and a third say their community needs more officers…”

Camden, New Jersey Is Actually an Example of Funding the Police

Much has been written about Camden, New Jersey, a town that “defunded” it’s police department. “Defund” never means defund in these conversations. What Camden actually did was increase the number of police on the streets. They replaced the city police force with a county force. “The new county force is double the size of the old one.”

Joe Biden and Bernie Sanders Want to Fund the Police

Joe Biden seems to agree. In an opinion piece in USA Today, he wrote, “I’m proposing an additional $300 million to reinvigorate community policing in our country. Every single police department should have the money it needs to institute real reforms like adopting a national use of force standard, buying body cameras and recruiting more diverse police officers.” More police officers is not defunding the police, obviously.

Bernie Sanders agrees. ““I think we want to redefine what police departments do, give them the support they need to make their jobs better defined,” said Sanders.  On June 2, he told Sen. Chuck Schumer that “we need to enhance the recruitment pool by ensuring that the resources are available to pay wages that will attract the top tier officers we need…”

Finally…

We should remember that there is also a moral case for funded, effective police. Here’s a story from Reddit that illustrates this well.

Abolishing Police from DefundPolice

The Nine Principles of Policing

In the wake of the murder of George Floyd, many people have proposed radical reforms of the police. One of the most radical things that we can do is to bear in mind the original purposes of police.

British police officers are called “Bobbies” after Robert Peel, who established the London Metropolitan Police.  Peel developed the idea of police officers as “citizens in uniform.”  Peel had 9 principles of policing issued to every new police officer from 1829 onward.  They are still on the government’s website. They are:

  1. To prevent crime and disorder, as an alternative to their repression by military force and severity of legal punishment.
  2. To recognise always that the power of the police to fulfil their functions and duties is dependent on public approval of their existence, actions and behaviour, and on their ability to secure and maintain public respect.
  3. To recognise always that to secure and maintain the respect and approval of the public means also the securing of the willing co-operation of the public in the task of securing observance of laws.
  4. To recognise always that the extent to which the co-operation of the public can be secured diminishes proportionately the necessity of the use of physical force and compulsion for achieving police objectives.
  5. To seek and preserve public favour, not by pandering to public opinion, but by constantly demonstrating absolutely impartial service to law, in complete independence of policy, and without regard to the justice or injustice of the substance of individual laws, by ready offering of individual service and friendship to all members of the public without regard to their wealth or social standing, by ready exercise of courtesy and friendly good humour, and by ready offering of individual sacrifice in protecting and preserving life.
  6. To use physical force only when the exercise of persuasion, advice and warning is found to be insufficient to obtain public co-operation to an extent necessary to secure observance of law or to restore order, and to use only the minimum degree of physical force which is necessary on any particular occasion for achieving a police objective.
  7. To maintain at all times a relationship with the public that gives reality to the historic tradition that the police are the public and that the public are the police, the police being only members of the public who are paid to give full-time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.
  8. To recognise always the need for strict adherence to police-executive functions, and to refrain from even seeming to usurp the powers of the judiciary, of avenging individuals or the State, and of authoritatively judging guilt and punishing the guilty.
  9. To recognise always that the test of police efficiency is the absence of crime and disorder, and not the visible evidence of police action in dealing with them.

New York City Police Commissioner William J. Bratton said, “I carry these with me everywhere. My bible.” The New York Times was moved to do an extensive article on Bratton and his love of Peel. Unfortunately, he is not immune from the present moment.

Annotations:

“Bobbies” were called “Peelers” in Ireland.

Peele was good for more than just his nine principles. This Wikipedia article takes a deeper dive. Also check out the article on the man himself; his political career has some dark spots.

Reform Requires a Complete Picture of George Floyd

I don’t need to know much about George Floyd to be horrified by his murder. I can’t shake the image of Floyd calling out to his dead mother as he was strangled. But if we are holding up Floyd as a rallying cry for reform, then we do need to know about him. The information we need about Floyd is how his life was affected by the criminal justice system. The most important fact is that he was murdered by a policeman. But the rest of his life can teach us important things too, and might make us a little bit uncomfortable.

I recently read a New York Times article about the life of George Floyd. It went into granular detail about his exploits in sports, at work, and in religion. We found out about why he moved to Minneapolis from Houston. We found out about his propensity to hug people. We heard from an NBA star that he physically resembled. He had never been in a fight. He told jokes to cheer up his teammates after a loss. But the article totally passed over his involvement in the criminal justice system. This left me puzzled, since his involvement in the criminal justice system is the reason for his notoriety. Moreover, he is being held up as an example of why we need to reform the criminal justice system. Given that, readers need a complete picture.

The New York Times Passes Over Floyd’s Criminal History

But he returned to Texas after a couple of years, and lost nearly a decade to arrests and incarcerations on mostly drug-related offenses. By the time he left his hometown for good a few years ago, moving 1,200 miles to Minneapolis for work, he was ready for a fresh start…

For about a decade starting in his early 20s, Mr. Floyd had a string of arrests in Houston, according to court and police records. One of those arrests, for a $10 drug deal in 2004, cost him 10 months in a state jail.

Here’s a summary from the Daily Mail. “Floyd was sentenced to 10 months in jail for having less than one gram of cocaine in a December 2005 arrest. Ok, so far the Times is doing fine.  “He had previously been sentenced to eight months for the same offense, stemming from an October 2002 arrest.” The Times omitted this. “Floyd was arrested in 2002 for criminal trespassing and served 30 days in jail.” Omitted. “He had another stint for a theft in August 1998.” Also omitted. What is lost in these omissions is the implication that Floyd might have been a cocaine addict in the early 2000s.

The New York Times Omits the Facts of Floyd’s 2007 Armed Robbery

This is the most frustrating part: “Four years later, Mr. Floyd pleaded guilty to aggravated robbery with a deadly weapon and spent four years in prison.” That’s the only thing the article said. They complete omit what actually happened. Court documents detail the facts of the assault:

Here’s The Daily Mail again. Compare the detail provided here with the detail provided by the Times.

“Floyd pleaded guilty to the robbery where another suspect posed as a worker for the local water department, wearing a blue uniform in an attempt to gain access to the woman’s home… But when the woman opened the door, she realized he was not with the water department and attempted to close the door, leading to a struggle. At that time, a Ford Explorer pulled up to the home and five other males exited the car and went up to the front door. The report states the largest of the group, who the victim later identified as Floyd, ‘forced his way inside the residence, placed a pistol against the complainant’s abdomen, and forced her into the living room area of the residence. ‘This large suspect then proceeded to search the residence while another armed suspect guarded the complainant, who was struck in the head and sides by this second armed suspect with his pistol while she screamed for help.’ Not finding any drugs or money at the house, the men took jewelry and the woman’s cell phone and fled in their car. A neighbor who witnessed the robbery took down the car’s license plate number. Later, police tracked down the car and found Floyd behind the wheel. He was later identified by the woman as the large suspect who placed a gun against her stomach and forced her into her living room, the document states. 

(Emphasis added.)

They New York Times Omits the Fact that Floyd Was High When He Was Killed

Floyd went to prison for five years. He got out in 2014, and remained conviction-free until his death. He did not remain crime-free, as we know from the medical examiner’s report. He had fentanyl and methamphetamine in his system. These facts, without Floyd’s history, are interesting but not useful. But taken together, Floyd seems to be a man whose life was derailed by drug use. That’s an important thing for us to remember as we decide how to reform our laws. But the New York Times did not include the facts about his drug use in their biographical article.

Why Does This Matter? Murder is Murder, Right?

None of these things excuse the officer’s conduct. I hope they are kept out of the criminal trial, since they are inflammatory and irrelevant there. But they are relevant for people trying to reform the law. Could we have saved George Floyd by keeping him off of drugs? That is a question that would not have occurred to a reader of the Times.

The most important point is that any discussion of criminal justice reform will have to grapple with the idea that none of the people involved in the system are perfect. Many, like Floyd, are lifelong criminals who never managed to “get out” of the street. Their problems are compounded by drug use, mental health issues, and many other issues that can’t all be solved by the police. We have to understand that the people involved in the system might not be people that we would have over for dinner. Nonetheless, they don’t deserve to be treated the way Floyd was treated. We should think of Floyd as a martyr, but not as a hero, because the truth matters.

By failing to include a complete picture, the Times robs us of the ability to decide for ourselves what to make of George Floyd. They did not think this information was relevant to the public, even though they were publishing an article on his life. I can only speculate as to why they left this out. Many people assign political motives to the Times. Were they trying to make George Floyd seem like a better man, so that his death would seem more outrageous, and more people would read their coverage? Were they trying to downplay his drug addiction because they are politically hostile to drug enforcement? It’s all speculation. But I prefer to have all the facts, and I’m disappointed that I couldn’t get them from the Times.

Notes

Here’s another summary of Floyd’s record from the Sun.

Most people (on Twitter) realize that Floyd was not a hero. But here’s a couple of people who don’t.

There Are No Racial Differences in Officer-Involved Shootings

Black Lives Matter is an advocacy group founded on the belief that black lives don’t matter to police officers. They have attracted world-wide attention in the wake of the killing of George Floyd. Those of us working in the criminal justice system must listen to what Black Lives Matter is saying and try to figure out if they are right. The first question that the movement brings to my mind is, “do police kill more black people than others?” If they do, that’s strong evidence that black lives don’t matter to the police.

As everyone knows, “a primary obstacle to the study of police use of force has been the lack of readily available data.” (Roland G. Fryer, Jr., An Empirical Analysis of Racial Differences in Police Use of Force (2017) [“Fryer”].) “A simple count of the number of police shootings that occur does little to explore whether racial differences in the frequency of officer-involved shootings are due to police malfeasance or differences in suspect behavior.” (Id.)

Professor Roland Fryer conducted a study of police use of force. His goal was to provide data to the argument that police are racially baised. He summarized his findings:

On non-lethal uses of force, blacks and Hispanics are more than fifty percent more likely to experience some form of force in interactions with police. Adding controls that account for important context and civilian behavior reduces, but cannot fully explain, these disparities. On the most extreme use of force – officer-involved shootings – we find no racial differences in either the raw data or when contextual factors are taken into account. We argue that the patterns in the data are consistent with a model in which police officers are utility maximizers, a fraction of which have a preference for discrimination, who incur relatively high expected costs of officer-involved shootings.

Fryer, at p. 1.

This conclusion was controversial. That’s why I think that we should look a little closer at the study.

What Are Professor Fryer’s Biases?

Fryer has written that he lived the life “of a Southern black boy who grew up without a mother and knows what it’s like to swallow the bitter pill of police brutality.” He describes the genesis of his paper. “In 2015, after watching Walter Scott get gunned down, on video, by a North Charleston, S.C., police officer, I set out on a mission to quantify racial differences in police use of force.”

Even Fryer’s paper almost explicitly declares its biases. It starts off with a summary of police violence against black people. Fryer summarizes the history of policing by claiming that, “[f]or much of the 20th century, law enforcement chose to brazenly enforce the status quo of overt discrimination, rather than protect and serve all citizens.” That’s an extremely broad statement that many would disagree with, and which has nothing to do with the economic analysis in the paper. Fryer also summarizes the killing of Michael Brown and Eric Garner but leaves out facts that tend to exculpate the officers. He ends the paper with the sentence “Black Dignity Matters.” (Fryer at p. 40.)

In the Wall Street Journal, Fryer wrote, “Are there racial differences in the most extreme forms of police violence? The Southern boy in me says yes; the economist says we don’t know.”

Police Are More Likely to Use Non-Lethal Force on Non-Whites

Fryer starts by analyzing less than lethal force. He notes that the use of force is extremely rare. For example, 0.26% of interactions between police and civilians involve an officer drawing any weapon. Only 0.02% rise to the level of baton use. The raw data shows that blacks and Hispanics are more than 50% more likely to have police use force. Fryer then accounts for 125 variables, including “baseline characteristics, encounter characteristics, civilian behavior, precinct and year fixed effects.” (Fryer at p. 3.) He finds that despite accounting for these variables, police still use force more often on non-whites. Even though there are racial differences in the use of non-lethal force, Fryer does not find that they are the result of racism. He simply says that they are unexplained racial disparities. “As economists, we don’t get to label unexplained racial disparities ‘racism.'” For good reason: these differences could be the result of many unmeasureable factors. To jump to racism is irresponsible without evidence.

There Are No Racial Differences in Officer-Involved Shootings

In stark contrast to non-lethal uses of force, we find that, conditional on a police interaction, there are no racial differences in officer-involved shootings on either the extensive or intensive margins.

Fryer, at p. 4.

In fact, controlling for variables, Fryer found “that blacks are 27.4 percent less likely to be shot at by police relative to non-black, non-Hispanics.” (Id. at p. 5.) He cautions that the relative variability “is measured with considerable error and not statistically significant.” (Id.) In other words, it’s hard to tell how much less likely blacks are to be shot, but it is possible to tell that they are less likely to be shot. He has other caveats as well; everyone should carefully read this paper. The most important, to my mind, is that some of the conclusions are based on police reports, which may be written in such a way as to minimize bad conduct.

Who is Roland G. Fryer, Jr.?

Roland G. Fryer is a professor in the Dept. of Economics at Harvard University, a member of the National Bureau of Economics Research, and the W.E.B. Du Bois Institute. He was also “chief equality officer” for New York City’s Department of Education under Mayor Michael Bloomberg.

Fryer is black. I normally wouldn’t mention it, but I’ve been hearing a lot of rhetoric lately directing white allies to listen to black people. When he was a young man, Roland worked at a McDonald’s drive-thru. He went on to become the youngest African-American to receive tenure at Harvard. He is a recipient of the MacArthur “Genius” Fellowship.

Notes

Fryer’s conclusions were controversial. Dean Knox, a Princeton professor, criticized them in two papers. They were criticized even more in the press. Here’s an example. The Guardian screws up statistics on police shootings and fails to even mention this paper in an article on the subject. The statistics and omissions are so bad you have to wonder what the editor was thinking. Moreover, at least two other studies, both published in 2016—by Phillip Atiba Goff et al. and Ted R. Miller et al.—have since found the same conclusions using different data.

Fryer wrote an op-ed in the Wall Street Journal on this subject. He believes policing is racist, I don’t. The Attorney General thinks there is no such thing as systemic racism. For what it’s worth.

Fryer was placed on administrative leave for two years, beginning in 2019, for sexual harassment. You can read about the substance of the allegations here.

How Police are Held Accountable

In the wake of George Floyd’s death, it’s important to understand the ways that police are held accountable. There are four overlapping ways that consequences follow bad police behavior.

Administrative Discipline

Administrative discipline is imposed when a police agency writes up an officer or other employee for violating policy.  This is similar to what might happen in any workplace.  Officers can also be administratively disciplined for using excessive force, violating a suspect or witness’s rights, dishonesty in any capacity, or failing to be polite and professional

Collateral Discipline

When a police officer is disciplined by an oversight body.  For example, the the Berkeley Police Department has a Police Review Commission. The PRC is an independent, civilian oversight agency to the BPD. The PRC advises city leaders and the BPD on police policies and investigates complaints by members of the public against police officers. This type of oversight is exists in large jurisdictions like Los Angeles, San Francisco, and San Diego as well.

One important form of collateral discipline is the DA blacklist – also called the Brady list. Whenever the DA’s office believes that an officer is untruthful, they have to disclose that information any time they want to use that person as a witness. They also have to disclose it if that witness’s untruthfulness is exculpatory. And dishonesty is not the only thing that prosecutors must disclose. They must also disclose fabrication of evidence and the use of excessive force. If you are a prosecutor and your arresting officer has been fabricating evidence, your case is dead. DA’s offices keep a list of such officers. Prosecutors cannot use them as witnesses. Putting a cop on this list means that they are useless out in the field. After all, any case they touch is dead. So police agencies must move them off the street and onto a desk. The list prevents officers from testifying. The policeman himself has no say in the matter. There is no appeal. The police agency has no say in the matter, nor do judges or legislators. It’s all up to the DA, who is an independently elected position. Take a moment to think about this. The DA can take a cop off the street, even though the cop works for another agency that may disagree.

Civil lawsuits

Police can be sued if they hurt a person in any way, including violating their constitutional rights even without injury. They have to prove that they were damages by a preponderance of the evidence – meaning it was more likely than not. They do not need a unanimous jury verdict, 9 out of 12 is enough. The point is that civil suits are much easier to win than criminal prosecutions. These require proof beyond a reasonable doubt. And a unanimous jury is required for conviction.

If a person proves a case against a cop, they can get their actual damages: the money they actually spent on legal bills, lost during time off from work, and other measureable damages. They can also damages for emotional distress, which can’t be measured. And finally, the civil court can impose punitives damages on the police, which get paid to the individual. These amounts can be so high that they are effectively lottery tickets.

The law provides incentives lawsuits against the police for violating constitutional rights. For example, the law gives incentive for lawsuits regarding excessive force, overdetention, cruel and unusual punishment, and even wrongful death. The law empowers lawyers to act as private prosecutors. If they can prove a constitutional violation, the police agency must pay their attorneys fees. Even if the victim is already being awarded millions in the types of damages listed above. In fact, if the plaintiff only wins $1 in damages, the attorney must still be paid.

The practical result of all this money is that police are sued all the time for even the most minor complaints.  There is literally an army of plaintiff’s lawyers scouring every jail, booking record, and criminal courthouse for even a whiff of a meritorious lawsuit. And most plaintiff’s lawyer are not just independent, they are outright hostile to police.

The plaintiff’s lawyer hired by George Floyd’s family to sue the police

Since the pot of money is so large, the best plaintiff’s lawyers run sophisticated operations with multiple lawyers, investigators, paralegals, and other staff preparing the case. They have the subpoena power, and can compel testimony from police and other witnesses in the form of depositions. These examinations are taken under oath, with the penalty of perjury. They usually last much longer and go into more detail than witness testimony in criminal court.

Although I personally dislike these kind of lawyers, and must declare my bias, they provide me with a lot of confidence that the system is not racist. If it were, these guys would sniff it out and make a ton of money on it. When they succeed, and a cop is found liable, the other types of accountability follow. A righteous lawsuit will also mean administrative discipline, collateral discipline, and could mean criminal prosecution, if not for the underlying conduct, then for perjury during a deposition.

Criminal Prosecutions

Police are not above the law. They may be prosecuted in criminal court just like anybody else. They do not have any special privileges or defenses. They are prosecuted all the time for private offenses in their personal lives, such as domestic violence, battery, or fraud. It is less common for them to be prosecuted for their performance on the job.

Police and prosecutors often interact.  It can be tough to file on people that you work with.  Nevertheless, I’ve managed to do it several times, and it is common enough every DA will do it once or twice.  Many prosecutors offices also have a “Justice System Integrity Division” whose only job is to prosecute police.  They go anywhere in the county, and thus don’t interact with any one police agency on a daily basis.  Also, there is tremendous pressure on the DA’s office to be hard on cops, and no pressure to be soft on them.  Here’s an example. 

Finally, cops may also be prosecuted by the Attorney General’s office.  If they feel that a local DA has a conflict of interest, they are required to take the case and prosecute it themselves. The California Attorney General has a special unit for this purpose.

When Are You Allowed to Have An Opinion?

Social media has been a battlefield since the murder of George Floyd. One of the things I keep reading is that white people should keep their opinions to themselves. There is no way for them to understand what life is like for people of color, their opinions would therefore lack validity and should not be discussed. I’m trying to paraphrase as best I can. This image, found on Facebook, does a pretty good job of conveying the message:

I love the idea of different people coming together. But I don’t think that there are any rational ideas that I just can’t understand. There are emotions that I can’t understand. I’ve never been through many different kinds of trauma. But ideas are universal. You just need logic and evidence.

It seems like there is a subtext here. The subtext is “I am not entitled to an opinion, but I support yours.” That’s what worries me about this part of the discourse. Everyone is entitled to an opinion about our politics, including opinions about police brutality. Their opinions shouldn’t be shut down because of the color of their skin, obviously. The answer to society’s problems isn’t censorship. No idea is invalid; it’s true or false, useful or useless. No one should be silenced. Everyone has a right to speak. A view isn’t right or wrong just because of who is saying it. Truth doesn’t know a skin color. These seem like basic things that some are forgetting lately.

Flip it around?

Prosecutors have a lot of expertise on the criminal justice system. With the exception of other people working in the courtroom, they have more than virtually anyone else. Imagine a prosecutor speaking to a protester and saying, “You don’t know what you’re talking about. I do.” The protester responds, “I have a right to my own opinion.” Whose side should we be on? Even though I’m a prosecutor, I would be on the protester’s side here. After all, with enough facts, the protester and the prosecutor should be able to reason together. The prosecutor cannot say, “You will never understand but you must stand with me.” It’s wrong and offensive.

Notes

More people than just protesters think this way. Philosopher Patrick Stokes described the expression as problematic because it is often used to defend factually indefensible positions or to “[imply] an equal right to be heard on a matter in which only one of the two parties has the relevant expertise”. I think he’s wrong. Although it’s interesting to ask what the relevant expertise is when discussing police brutality.

The expression “check your privilege” seems to be another well-intentioned but misguided way to discuss race.

The System is Broken? There Is No System

Finally, the incremental and diffuse way the war on crime was waged made it difficult for some African American leaders to appreciate the impact of the choices they were making. Mass incarceration wasn’t created overnight; its components were assembled piecemeal over a forty-year period. And those components are many. The police make arrests, pretrial service agencies recommend bond, prosecutors make charging decisions, defense lawyers defend (sometimes), juries adjudicate (in the rare case that doesn’t plead), legislatures establish the sentence ranges, judges impose sentences within these ranges, corrections departments run prisons, probation and parole officers supervise released offenders, and so on. The result is an almost absurdly disaggregated and uncoordinated criminal justice system—or “nonsystem,” as Daniel Freed once called it.

James Forman Jr., Locking Up Our Own, pp. 13-14.

I wrote recently about the decentralized nature of the criminal justice system. It’s literally the first thing written on the first page of my law school criminal law book. It’s placement there suggests that it is the foundation of understanding criminal law. Understanding the whole edifice requires understanding this basic fact. The professor’s placement suggests they agree. By the time I read this James Forman quote, it seemed like welcome confirmation of a fact universally understood.

The protests and political discourse since the death of George Floyd came as a rude awakening. Many people believe that there is a unified criminal justice system. They believe that the people in the system share incentives, motivations, and political views. They believe that the system can act in a coordinated way to carry out controversial political goals. If this all seems a little abstract, let me be more concrete. There are people out there who believe the system is designed to kill people of color and then cover it up. Or as some say, “either the system is broken or it’s working exactly the way they planned.” You can buy that on a shirt here.

I disagree with this view because I believe I understand some basic things about our “almost absurdly disaggregated and uncoordinated criminal justice system.” The fact that it is a non-system, as Daniel Freed called it, is good news for those who believe the system is malicious. After all, an absurdly uncoordinated system could hardly organize a police murder and cover it up. It would take the collusion of agencies with different missions, different elected leaders, and different motives. Or, if you believe that police murder and cover happen organically, by accident, it would require the failure of multiple layers of oversight by people in and out of uniform.

I kind of assumed that people were aware that the police were themselves policed by several layers of oversight. Any one of them could speak up and foil a murder conspiracy and coverup. It would take a massive, multi-agency failure to something like that to happen, not to mention a failure of investigative journalism.

Nevertheless, there are people out there who believe the system is designed to kill people of color and then cover it up. I hope those people would be receptive to this argument. It’s not political. It doesn’t rely on a rosy view of police or of human nature. The view is simply based on the premise that it’s hard to get different agencies to cooperate, and the more agencies you need to cooperate, the less likely cooperation will happen. This view doesn’t even take into account the fact that committing murder and covering it up is morally outrageous and offensive to the normal people that work in these institutions. In other words, even if you could get a bunch of different agencies to work with each other, you’d be asking them to cooperate on the most heinous crime in the law. The criminal justice system barely gets its act together to stop crime!

Notes

Here’s another shirt from the same site:

At least this shirt calls it the “judicial system.”