Mimesis Law
10 December 2019

Cross: Seth Stoughton, Cop Turned Prawf

September 14, 2016 (Fault Lines) — Ed. Note:  Scott Greenfield and David Meyer-Lindenberg cross assistant professor at the University of South Carolina Law School, Seth Stoughton, who previously served as a police officer with the Tallahassee Police Department.*

Q. In 2000, you were two years into a bachelor’s in literature at Florida State University when, suddenly, you decided to take a leave of absence and become a cop. What happened? What led you to set your studies aside and dive headfirst into the gritty world of policing? Going in, were you at all familiar with the demands of the job? You stayed in Tallahassee, joining the local police force. We’re talking about north Florida here, so it’s a little hard to believe you made that decision voluntarily. Did you? And did you ever think to yourself, “I should have stayed in school?”

A. I was tricked! Okay, that’s a little dramatic, really, but it’s not really much of a story.  I was twenty years old, going to college with the intention of becoming a high school English teacher, and working as an instructor at a martial arts school at the time.  One of my friends at the martial arts school was a cop, and I had some other friends who were cops and involved in the local martial arts scene.  I’m not sure how it came up originally, but the guy who trained with me encouraged me to apply for a position as a reservist, a part-time officer.  The pay was really good for part-time work–about $15-16 dollars, if I remember right (the equivalent of $21-22 today)—and, frankly, the idea of being a cop was appealing.

I would need to take a semester off of to attend the academy, but otherwise there were no set time commitments so I could work around my school schedule.  The more we talked about it, the more interested I was.  I started by doing some ride-alongs and by volunteering with the department (by helping in the Crime Prevention Unit and the Sex Crimes Unit), then I eventually turned in an application with the city police department.  That was probably October of 2000.  (At the same time, I had to apply separately to attend the police academy; if I had already been hired by an agency they would have “sponsored me” through the academy, but since I was still an applicant I had to apply to, and pay for, the academy myself.)

I made it through the application processes, which involved, among other things, a psychological exam, the longest and possibly stupidest multiple choice test I’ve ever taken (the MMPI and CPI are psychological “inventories” that have a combined total of something like 1,100 “Yes/No” questions – my favorite was “I am fascinated by fire.”), and eventually an “Oral Board” with the police chief and two deputy chiefs.  (An oral board is an interview; this is one of many examples of how policing has its own terminology.)  During the interview, one of the chiefs explained that they had some open full-time positions that they had funding to fill.  (That wasn’t always the case – given municipal budgets, the agency often had some vacancies but no funding to fill them.)  I was asked if I would consider switching my application from a part-time reservist to a full-time officer.  I remember saying that I really wanted to finish my degree—remember, I was in the middle of the Fall semester of my Junior year at this point—and being told that a number of officers had finished their degree while working full time.  Had I been the skeptical investigator or trained lawyer I would later become, I might have asked, “What exactly is that number?” but I wasn’t, so I didn’t.  (As it turns out, it wasn’t a very large number – among my group of friends, only one finished her degree while working as a cop, and it took her the same ten years that it eventually took me.)

During the application process, and probably for the first two years of being a cop, I never thought I should have stayed in school.  I was excited about my career; I still intended to finish my degree, but it wasn’t an imperative – and why would it have been?  I was making decent money, had good friends, and doing something important.  It was a good department, one that prided itself on professionalism and where most of the supervisors I had (early on, at least) were both highly competent and good at supervising.  After going through the police academy (January to early June, if I recall correctly) and making it through field training (which I “graduated” from in November), I was slotted onto a day shift squad where my supervisor let me take an hour out of my shift (calls for service permitting) to go to class so long as I made up the hour by staying late on class days.

I was also increasingly dissatisfied with college; I had switched majors so I was dual-majoring in English and Criminology, and I was not impressed by the criminology folks.  They had, I thought at the time, a very superficial and ill-informed understanding of policing, largely because they hadn’t been there.  This was, and is, a common view in law enforcement; outsiders, even outsiders who “study” policing from the safe confines of their offices, just don’t understand the job.

Q. You spent five years at the Tallahassee PD, where you helped found the Special Response Team. Newcomers to the police reform movement tend to assume the “warrior cop” development, publicized by people like the Washington Post’s Radley Balko, is a recent phenomenon. Is it? To what extent did the department already reflect the “warrior cop” mentality? You joined half a year before 9/11; did that tragedy change the department’s outlook, and if so, in what way? Were you a warrior cop? What kind of wolves were you called on to fight?

A. The extent to which my agency was or was not “warrior-like” is a surprisingly difficult question for me to answer.  When you’re in the middle of something, it’s difficult to identify some of the characteristics because you don’t really have a baseline for comparison.  So I’m looking back and trying to use what I know now to describe the environment I was in then, but my memories and perceptions of that environment are colored by my expectations at the time.  So with that caveat in mind, I’ll do my best to answer the questions.

No, the emphasis on what Radley Balko and others, including me, have called a “warrior” mentality isn’t particularly new.  It certainly existed prior to 9/11; when I went through the police academy (January to June of 2001), we watched videos of officers being beaten or killed, we were lectured on the dangers of complacency, and we went through a number of drills designed to demonstrate how quickly we could be shot or stabbed.

There was similar messaging at the department; one sergeant, I remember, regularly used our check-on time (the 15- or 20-minute briefing at the beginning of a shift) to provide safety tips. For example: unholster your gun and put it on your lap when you’re parked and doing paperwork because it’s difficult to draw while you’re sitting down, or demonstrative drills, seeing whether you can shoot someone who is facing away from you before they can turn and shoot you, or whether you can shoot someone who is holding a gun down by their side before they can raise it and shoot you.

But with that said, it wasn’t always like that.  The Tallahassee Police Department prided itself on its professionalism and commitment to community policing, and that came across, too.  I remember being part of a group of officers that wanted to serve an arrest warrant; we worked at night (4pm-2am), so we wanted to go make the arrest late one evening, around 11 or midnight.  The lieutenant vetoed it.  He told us that the agency didn’t need to give the impression that we were on a witch hunt.  I didn’t fully understand that at the time; I remember being frustrated because we would certainly have been acting lawfully had we knocked on the door, and even if we had kicked in the door, to get the suspect regardless of what time of day it was.  Looking back, though, he was absolutely right; banging on doors and rounding people up at night wasn’t the kind of department that the community or our supervisors wanted us to be.

Here’s another example: a close friend of mine pulled over a motorist for speeding.  The driver said she was rushing home because her period was starting and she didn’t have any tampons or pads with her.  We had been trained to make a decision about whether or not to issue a ticket even before we approached the vehicle we stopped. That way, we knew the ticket wasn’t based on the driver’s behavior toward us, but rather on the underlying violation.  The officer who stopped her was incredibly ethical and conscientious, a damn good cop and one I was proud to work with, probably my best friend at the agency, and only in rare circumstances would either one of us issue a ticket when we had decided that a warning was more appropriate or vice versa.  Because the decision had been made, and because there was no lawful justification for speeding (no medical emergency or the like), the officer issued the ticket.  The motorist complained, and our sergeant tore up the ticket.  He explained that it was unnecessarily humiliating.  My friend and I didn’t agree; there had been a violation, after all, but looking back, the sergeant was doing exactly what I now describe as Guardian policing: protecting civilians from unnecessary indignity and harm.  Although I didn’t think about it in these terms, I had a number of supervisors, senior officers and peers who modeled that concept – without them, and without having worked with them and seen firsthand how it facilitates good policing, I don’t think I would hold the opinions that I do today.

Was I a warrior cop?  Sometimes, sure; sometimes the situation demands it.  Those of us who write about Warrior and Guardian policing are often frustrated when people think of it as an either/or.  It isn’t.  Oh, sure, in any given situation, an officer can act more Warrior-like or more Guardian-like, but it’s more appropriate to think of the Warrior and Guardian concepts as opposite ends of a spectrum that tries to describe how officers conceive their role in the community more generally.  Generally, then, I think the officers I most respected, worked most closely with, and tried to pattern myself after had a more Guardian-like approach to policing.  There were times to play hardball, but that wasn’t the default.

It wasn’t just for philosophical reasons—most cops don’t think deeply about the nature of the job or the underlying principles that motivate them—it was practical; it made them more effective officers.  And it made them safer.  I remember one officer, who had been a deputy sheriff in a rural agency before coming to the city police department, who came up to me after I had spoken rudely to a civilian about something.  He said, “You need to watch the way that you talk to people.  If you’re getting your ass kicked one day, you want people to step in and stop it, not join in the kicking.”

My agency also highly emphasized ethics.  That meant doing things the right way, but it also meant not protecting officers who did things the wrong way.  One night, the officer I was close friends with and I were working a traffic detail during a Florida Agricultural & Mechanical University homecoming – a huge event that brought in tens of thousands of people from out of town and resulted in our days off being cancelled and some very long hours (16- or 18-hour days weren’t uncommon).  It was maybe 3 or 4 am and a car drove up and stopped at the intersection we were at, blaring music.  I shouted something to the effect of, “Turn that fucking music down!” in part because, as I remember, I thought the car’s windows were up and they wouldn’t hear me over the music anyway.  Well, they did.  The light changed and they drove off, and I looked at my friend (rather sheepishly, because I was ashamed of my unprofessional outburst), who said, “If that goes to IA [Internal Affairs], it’s your ass.”  In other words, my coworker wasn’t going to cover up my misconduct; implicit in that was condemnation of what I had done.  Nothing happened—no one complained, I presume—so it never became an issue, but that’s an example of how we held each other accountable.  Now, that might have only happened because I was close friends with the other officer, but I can think of other examples where peers corrected each other; that’s what we were expected to do.

Not everyone lived up to that, though, and I probably have as many bad examples as I do good examples.  I was working an off-duty gig at a nightclub one evening (shameless plug: for more on “moonlighting,” take a look at my recent research on the topic) when another officer ejected someone from the property.  The ejected patron was cussing and yelling, shooting glares back over his shoulder as he was walked off the property, but the continued disrespect bothered the officer I was with.  The other officer yelled, “Turn around one more time and I’ll arrest you for trespassing and lie like a motherfucker on the stand to get you convicted.”  Now, I’m not saying the officer would have made the arrest or lied, but shouting that—at the crowded front entrance of a busy nightclub parking lot—couldn’t possibly leave anyone with a positive image of the police.  As that anecdote suggests, some of the officers I worked with did not react well when they weren’t afforded the level of respect or deference that they felt they were entitled to.

I’m not sure how to subjectively answer the question of whether 9/11 changed things for me or at my agency – I was in the final phases of Field Training at that point, so I had very little experience policing in a pre-9/11 world.

Ah, wolves.  The idea of cops as sheepdogs, criminals as wolves, and the public as sheep has become incredibly popular, but as soon as you start to think about it, it’s really not intellectually or conceptually satisfying.  First, it’s condescending to the public; identifying civilians as sheep isn’t supposed to be praise.  I’m sure some readers will argue that it’s supposed to be descriptive, not pejorative, but it doesn’t take much introspection to realize how judgmental that description is.  Second, people aren’t sheepdogs or wolves or sheep – everyone is capable of, and has been, all of those things at some point.  Classifying groups of people along those lines falsely suggests that there is some permanence in human temperament; once someone is a wolf, they’re always a wolf – it’s in their nature.  That’s bullshit.

But putting that aside, as a patrol officer, I dealt with all kinds of people and all kinds of crime.  Murder, suicide, robbery, battery, assault, burglary, arson, various kinds of theft, drugs, guns, DUI, all the way down to parking in handicapped spots (a pet peeve of mine) and parking faced the wrong way on the street (a pet peeve of one of my sergeants).  Felonies, misdemeanors, traffic violations, pedestrian violations – did you know that Florida Statute § 316.130(12) requires someone who is crossing the street not at a crosswalk to cross at a 90 degree angle to the curb or by the shortest route?—I did it all.  Felony stops, pretextual stops, and doughnut stops (I have a stereotypical weakness for Krispy Kreme – if I had policed in the era of cellphone cameras, I’m sure there would be pictures of my squad car going through the Krispy Kreme drive-thru).

Doughnuts aside, I was pretty active.  At some point, I estimated making something like 300 arrests over my five years as a cop.  I chased people.  I used force.  In most interactions, though, I don’t think I was very Warrior-like, and I never felt like I needed to be.  First and foremost because a sergeant and SWAT team member that I had tremendous respect for told me even before I started as a cop to leave my ego at home.  “When people get mad at you or cuss at you,” he said, “They’re aiming it at the uniform, not you.  So let all that shit roll off your back and not bother you.”  I took that to heart, and I think it helped.  I could afford to be patient with someone because they weren’t disrespecting me, they were expressing frustration about how my job affected them.  Hell, I could sympathize with that – my colleagues and I expressed frustration about the job all the time!

Second, because I had a pretty long history of martial arts.  I’m not saying I could ninja-kick and judo-chop everybody into submission, but I was familiar with getting punched and kicked, with groundfighting, and all that.  It’s not that I wasn’t afraid of fighting, because I was (a fight on the street isn’t a sparring match), but fighting wasn’t so far outside of my comfort zone that I started to panic at the possibility of it.  The third reason has to do with verbal communication skills – I took great pride in my ability to talk people into handcuffs.  I’m not terribly imposing physically—I stand 5’8” and weigh all of 150 lbs, which was probably closer to 140 back in the day—so using what my parents would call a gift for gab was both safer and more satisfying that going head to head with someone.

One night, another officer and I were dealing with a mentally disturbed woman.  I forget the context, whether we were taking her in for psychological evaluation or arresting her, but I know it involved handcuffs and she was not down with that.  After twenty minutes or so of chatting, she turned around, put her hands behind her back, and we were good to go.  My sergeant arrived on scene shortly after, and I remember feeling really good when the other officer said something like, “Sarge, I’ve never been so sure we were going to have to fight somebody, but we didn’t need to lay a finger on her.”

Q. You’re an educated man; even before you had a degree, you put your skills to good use by teaching your fellow cops how to write better reports. Many police departments put a premium on educated officers by, for example, offering extra pay to cops with degrees. There’s evidence to suggest educated cops are less likely to rack up complaints and disciplinary issues, but they’re also less likely to express satisfaction with the job. Did policing bore you at times? And while promoting education is a good strategy if you want to minimize your department’s exposure, is it helpful if the goal is to reform the PD’s culture? Could an academic background or a more deliberative mindset undermine a cop’s ability to take pride in his job, resort to “righteous force” when it’s needed?

A. I definitely got bored, but I think everyone does.  Most people are drawn to police work in part because of the appeal of always doing something different, not having a routine.  But the sad fact is that police work is routine.  Although the traffic stops, alarm calls, and various other calls for service differ in their details, most of them blend together in an unremarkable blur.  It’s often said that officers are bored 95% of the time and terrified 5% of the time – the numbers may be off, but the concept is more or less true.

And those rare times of excitement—chasing a fleeing suspect or kicking down a door or wrestling with someone—kind of make the rest of the job—writing up a fender bender or checking a business with a long history of false alarms or arresting another juvenile shoplifter—that much more boring.  I don’t think level of education or level of intelligence matter too much there – I can’t think of any officers (and I knew some fiercely intelligent cops and some frighteningly stupid cops) who weren’t bored by some parts of the job.  The trick is for supervisors and executives to manage that boredom.  When I started at the agency, the chief tried pretty hard to transfer folks around when they wanted to try something different: from patrol to Criminal Investigations (which was a lateral transfer, not a promotion at my agency).  Later in my time there, a shortage of patrol officers prevented the agency from doing that – it needed to keep manpower on the streets.  Honestly, had I been able to work in an investigative capacity at my agency, we probably wouldn’t be having this discussion – I took an investigative job with the state because it was experience I couldn’t get with the city.

Okay, and now you ask the question about officer education and police culture.  Officers are educated; the real question is what they’re educated about.  Officers may not learn much about the rules of evidence, for example, but they damn sure know the intricacies of Fourth Amendment law – they might not know many case names or the underlying justifications for the rules, but they know the rules better than some lawyers do.  I think officers at many agencies need a different education, one that informs them about the history of policing and their role in carrying on what is both a very honorable and a very oppressive tradition.  But even more than education, I’d like to see officers adopt an introspective approach, to think about the nature of their jobs and not just about the tools that let them go about whatever they happen to contemplate their jobs as being.  Officers are trained in a variety of technical skills—how to do things—but they would benefit from more exposure to adaptive problem-solving techniques—how to think about things.

Policing is often considered a profession, but it typically looks more like a trade.  I was chatting with Greg Connor—a former cop, college professor, and author of one of the first (if not the first) Use of Force continua—and he observed that officers learn the basics in the same way an apprentice does, both in trade school (the academy) and from a set of master tradesmen (Field Training Officers).  One of the primary factors that separate a professional from a craftsman is more formalized education and a deeper understanding of the theories and concepts that underlie their practice – thinking about the system they’re in and not just the individual role that they play.  In many ways, I think law enforcement would benefit from having people at all levels, including rank-and-file officers, who think systemically and are comfortable rethinking and challenging “accepted wisdom.”

Q. For decades, the Supreme Court has ascribed incredible crime-fighting powers to police (and their dogs). “Training and experience” may be a cliché to police reformers, but it’s a cliché that allows cops to seize people and their possessions, and all but assures deference from the courts. Combine that with a series of Supreme Court cases that eroded Fourth Amendment protections, so as to not unduly burden cops as they do their jobs, and we have a legal environment that’s ripe for abuse. Isn’t it odd that these supposedly superlative crime-fighters need decisions like Heien or Strieff to do their jobs? What are we to make of the Supremes’ tendency to see cops as both superhuman and imperfect? Should we make this many constitutional allowances for the imperfection of government agents? And what about the deference to police sensibilities at the heart of Graham v. Connor? Is that a good thing?

A. There is a very interesting and disconcerting tension in the way that courts treat officers.  On the one hand, cops are viewed as skilled crime fighters such that judges are “generally obliged to accord deference and even great respect to an officer’s training and experience.”  United States v. Martin, 679 F. Supp. 723, 734 (W.D. La. 2010) (internal quotation marks omitted).  On the other hand, a variety of doctrines take a relatively forgiving approach to reviewing officers’ conclusions, from the probable cause and reasonable suspicion standards (which both allow a great deal of room for error) to rules governing officers’ mistakes of facts and law.

Further, the Supreme Court has emphasized that the Fourth Amendment is best implemented by bright-line rules in some contexts, but flexible standards in other contexts.  One example that I use to set up this tension in my Criminal Procedure classes is the distinction between the Open Fields doctrine and curtilage.  In Oliver v. United States, 466 U.S. 170 (1984), the Supreme Court held that officers could go onto private land and observe without it being considered a “search” for Fourth Amendment purposes because “[t]here is no societal interest in protecting the privacy of . . . activities . . . that occur in open fields.”  So, for example, if I have a few acres or a large yard, officers can enter my property (even climbing over fences and despite “no trespassing” signs) without it being a search.  (Note that it might still be a trespass at common law, but it isn’t regulated by the Fourth Amendment.)  The Court held that clarity was essential in this context because officers should not have to guess about the scope of their authority while they’re in the field.  So it created a clear, bright-line rule: no privacy in open fields.  But what counts as an open field?  Houses, obviously, aren’t open fields, but what about the area immediately around a house?  That’s called “curtilage,” and it gets the same amount of protection that a house gets.  So while there’s no Fourth Amendment protection for open fields, there is Fourth Amendment protection for curtilage.  That means the Court needed to distinguish between open fields and curtilage.  You’d think, given the need for clarity that it said was so important in Oliver, that it would adopt another bright-line rule.  It didn’t.  Instead, in United States v. Dunn, 480 U.S. 294 (1987), the Court identified four factors that had to be applied when trying to draw the line between curtilage and open fields: the proximity of the area to the home, whether the area is included in an enclosure surrounding the home, the nature of the uses to which the area is put, and steps taken to protect the area from observation.  The rule distinguishing curtilage from open fields is hardly a model of clarity – in fact, it’s confusing enough that, as a cop, I was taught a shorthand version of it: if the area is covered by roof (including an overhang or eaves), it’s curtilage.

The Fourth Amendment tries to balance two important interests: society’s interest in effective law enforcement and individuals’ interest in privacy and freedom from governmental intrusion.  So are judicial deference and squishy standards a good thing?  I hate to get all law professor-y, but I think the right answer is, “It depends.”  Deferential standards can be a good thing, and in at least some contexts they’re essential.  There is something to be said for training and experience – a cop looking at a series of events focuses on different things and draws different conclusions than your average person would.  In other words, if we expect police to know particular things and do a particular job (or set of jobs), then we need to trust them, to some extent, when they’re talking about things in the context of that job (or jobs).

But that can be taken to extremes in at least two ways.  The first involves officers relying on their training and experience for things that are well within the grasp of the ordinary person, where there’s no need to put on a patina of expertise.  For example, as I wrote in an article published last year:

officers have referred to their training and experience when testifying that a “‘long-necked, glass bottle’” is consistent with a container used to hold alcohol; that droopy, red eyes are a “common sign of alcohol or drug impairment”; that gunfire at 1:00 A.M. is often “associated with criminal activity”; that having a suspect kneel rather than stand “takes away most of their mobility”; and so on. These are silly examples, and intentionally so—the point is that, with the addition of a simple, formulaic phrase, completely mundane observations are draped in the robes of specialized knowledge and trained reasoning.

Seth W. Stoughton, Evidentiary Rulings as Police Reform, 69 U. Miami L. Rev. 429, 449 (2015).  The second involves officers drawing conclusions based on training and experience when that training and experience is either wrong or insufficient to support the conclusions the officers are drawing.  A great deal of police training comes in the form of verbal instruction, a formalized series of anecdotes passed along as something approaching an oral tradition.  As I wrote in that article, “[S]hared experiences and stories from more senior officers take on a patina of veracity that becomes a mechanism for carrying ‘cop knowledge‘ from the station house into the courtroom.“  The problem is twofold: some of this cop knowledge is simply wrong, and the cultural emphasis on cop knowledge makes it very difficult to establish its wrongness, let alone introduce reliable information.  Now, I’m not saying that all cop knowledge is wrong – that’s not at all the case.  But some information that has become a matter of police orthodoxy surely is, including universal behavioral indications of deception, the validity of certain interrogation practices, the accuracy of eyewitnesses, the reliability of various forensic disciplines, the near-infallibility of police canines, and so on.

In the use-of-force context, I think the Court is right to focus on what the officer objectively perceived at the time, but I think the Graham standard is wrong in one way and incomplete in another.  It’s wrong in that it describes use-of-force situations as requiring “split-second decisions” in “circumstances that are tense, uncertain and rapidly evolving.”  That absolutely can be true, but remember that force is relatively rare, and that the vast majority of the time, force is used to take someone into custody rather than to defend the officers (or others).  That is, most of the time, officers are using force when their safety isn’t threatened – they’re using force when a governmental interest (such as the interest in apprehending a suspect) is at risk.  As I wrote in a different article:

Considering that the vast majority of use-of-force incidents involve the use of aggressive force [by which I mean non-defensive force] by officers—typified by tactical preparation, a degree of premeditation, low levels of resistance, low levels of force, and a low probability of injury—the Court’s description of ‘split-second judgments’ is simply wrong almost all the time.

Seth W. Stoughton, Policing Facts, 88 Tulane L. Rev. 847 (2014).  James Fyfe, a lieutenant at the NYPD and criminologist whose work was instrumental to the “tactical revolution” of the 1970s, once described the Supreme Court’s description as the “split-second fallacy.”

The reason I think Graham is incomplete is because it is often used to focus narrowly on the exact moment at which force is used, rather than more broadly by taking into consideration officers’ decisions and actions that led up to the use of force.  Brandon Garrett at the University of Virginia and I have a paper coming out on this topic (here’s a draft), but here’s an illustration about what I mean: imagine an officer who shoots someone who is within arms’ reach and aggressively waving a knife around.  Looks like a perfectly reasonable use of force, right?  But what if I told you that the person waving the knife around was a paraplegic in an electronic wheelchair that had broken down in the middle of a large, abandoned parking lot, and that there was no one around except for a handful of officers trying to deal with the situation.  If we take a broader look at the incident and judge how one of those officers walked up within stabbing distance and then shot the suspect to avoid being stabbed, we almost certainly come to a much more difficult conclusion that we do under the narrow approach.

By not taking into consideration police tactics, the Court’s “objectively reasonable” standard lacks substance – it provides no meaningful guidance.  Imagine a boxer who goes for an exhibition match in a foreign country.  He asks about the rules and is told, “Oh, just be objectively reasonable.”  That’s not helpful.  Now, I’m sure there will be readers who object that using force on the street isn’t like boxing – there are no rules on the street.  Bullshit.  There are absolutely rules on the street – that’s why officers can’t shoot passive protestors in the knees.  We have rules during actual war, for crying out loud, so of course there are rules for how officers use force.  The problem is that identifying those rules is difficult, in part because the Court’s “objectively reasonable” standard doesn’t provide much incentive for fleshing them out in a constitutional arena.

 

Q. The DoD’s 1033 program, which provides surplus military equipment to police departments, plays a major role in the militarization of police. Is it a symptom or a cause? Do cops in BearCats automatically take the warrior thing too far? To what extent can warrior cop culture be laid at the feet of the feds and their permanent Wars on Things? Can these tools of war be taken away now, or is it too late?

A. The use of BearCats, or Mine Resistant Ambush Protected armored vehicles, or rifles, or dynamic entry techniques absolutely does not automatically take policing too far.  Militarized equipment, training, and techniques are an important part of modern policing.  But as important as that part is, it’s very small.  Thankfully, the hostage situations, active shooters, barricaded subjects, and other situations that gave rise to militarized training and equipment are few and far between.  I don’t have any problem with their existence or use, but I do have a problem when they are over-used.  In other words, I take no issue with militarized policing, but I do take issue with excessively militarized policing.  In that way, it’s rather like the use of force itself – it’s a rare but important aspect of policing, and society must allow officers to employ force when necessary but also guard against its overuse.  Do we have a problem with excessively militarized policing?  Yes.  Consider an excerpt of a forthcoming article I’m working on (here is the draft):

The era in which SWAT teams were born was an exceptionally dangerous time for police officers.  For the duration of the 1970s, an average of 115 officers were feloniously killed in the line of duty every year, with a high of 134 officers killed in 1973.  Even in that environment, however, SWAT teams were used sparingly, reserved for “volatile, high-risk situations such as bank robberies and hostage situations.”  Over time, more police agencies adopted SWAT teams,  and SWAT teams were deployed more often for circumstances other than the volatile, high-risk situations that originally justified their existence.  By the early 1980s, there were about three thousand SWAT deployments every year.  By 1996, the average had increased ten-fold, to thirty thousand.  The next five years saw a 25% increase, with the average rising to forty thousand deployments every year.  The increased use did not mirror an increase in crime: between “1980 and 1995, the number of times that SWAT units were dispatched increased by 538[%] while the crime rate was flat.”  SWAT teams began to be used more frequently for serving search or arrest warrants, particularly drug-related warrants.  Utah, the only state that currently tracks the deployment of police tactical teams, reported in 2014 that more than 78% of deployments related to drugs, while less than 2.5% related to active shooters, barricaded suspects, and hostage situations combined.

Seth W. Stoughton, Principled Policing, ___ Wake Forest L. Rev. ___ (forthcoming 2016) (footnotes omitted).

Historically, I think the 1033 program is both a symptom and a cause of excessively militarized policing.  In that article I just mentioned, I briefly describe the evolution of militarized policing, but Radley Balko literally wrote the book on this, and his Rise of the Warrior Cop is absolutely worth a read.  I don’t agree with him about everything, but it provides a useful background of how we got here and why it’s a problem.  My summary doesn’t go into as much depth and is almost certainly not written as well, but it identifies the War on Crime announced by President Johnson in 1965, the War on Drugs announced by President Nixon in 1971, and the War on Terrorism announced by President Bush in 2001, along with the policies that grew out of those “wars,” as factors that contributed to excessive police militarization.

I don’t think militarized tools should be taken away from law enforcement at an aggregate level, but I’m not convinced that every agency, no matter how small, needs a BearCat.  In most places, having a regional team or having mutual aid agreements with nearby large agencies that have their own teams is sufficient.  Agencies that have militarized equipment need training on how to use it and training on how not to use it, and they need guidelines in place that can be applied to assist with deployment decisions.  In the absence of well-thought-out guidelines, it’s far too easy for a supervisor to make an ill-informed, ad hoc decision to use some of that equipment that’s otherwise just sitting in the depot.

Q. In several papers, you’ve outlined the psychological importance to cops – who, after all, are called upon to confront danger and cope with humanity at its worst and most violent, often by resorting to violence themselves – of distinguishing themselves from the criminals they fight. The warrior mentality is one way of doing this; a popular metaphor separates the world into sheep, sheepdogs and wolves, with police cast in the role of the sheepdog. Isn’t there a dangerous, stare-into-the-abyss-for-too-long quality to this? When police see themselves as elite, uniquely qualified defenders, is it perhaps inevitable that they’ll circumvent the law and lie to judges, because no one else understands what they’re up against?

A. Yes, there are some serious and problematic implications of officers separating themselves from the communities they serve.  The article I mentioned in the last question has an entire section dedicated to exploring why the Warrior concept is so attractive to officers and, just as importantly, how it lends itself to misappropriation by officers who use it to justify actions that fall far short of the ideals they pay lip service to.  Rather than summarize or excerpt it, I’m going to exhort your readers to take a look at Section II of Principled Policing, a draft of which can be found here.

Q. Similarly, you’ve written that police educators relentlessly emphasize the risks of the job. (In reality, modern policing is a pretty safe trade.) All the same, the First Rule of Policing, “make it home for dinner,” has become proverbial. If police are truly to be guardians of the community, to what extent is it acceptable for them to offload the risks of an encounter on the rest of us? Should cops be as quick as they are to shoot people carrying mobile phones, Wii controllers or pens, on the off chance they might pose a threat? Is the police tendency to present themselves as beleaguered merely self-justification, a PR stunt? And is emphasizing the confrontational aspects of the job counterproductive, a self-fulfilling prophecy?

A. That’s a really difficult question, and far tougher than it seems at first glance.  On the one hand, officers are the professionals in any police/civilian encounter; they’re not only the ones best equipped to assess and manage risk, but they’re paid to run toward danger when duty requires it.  Under that view, we should resist the inclination to transfer risk from the officers to the civilians they interact with.

On the other hand, the nature of policing puts officers at more risk than civilians.  I keep a variety of statistics about violence against officers, and although it is far safer than the “War on Cops” rhetoric would suggest (with long-term decreases not just in the number of officer fatalities, but also in assaults against officers, edged weapon attacks against officers, and firearm attacks against officers), it remains true that, per capita, officers are murdered at a higher rate than civilians.  In the ten-year period ending in 2013, for example (the most recent year that I have good data for), an average of 5.2 civilians were killed every year for every 100,000 people in the United States, but an average of 7.3 officers were killed every year for every 100,000 state and local police officers in the United States.  The difference in those numbers has decreased dramatically (in 1985, it was 8.9 civilians per 100,000 compared to 20.8 officers per 100,000), but the fact remains that policing can be a dangerous job.

Ideally, officers would be able to, with the barest glance, easily distinguish between a firearm and a mobile phone.  Unfortunately, we don’t live in an ideal world; mistakes will be inevitable.  And sometimes an officer’s incorrect perception won’t actually be a mistake at all – Tamir Rice is a tragic example of this.  He was armed with a toy gun, but the officer’s perception of it as a real gun wasn’t a mistake – the gun looked real.  In my view, the Tamir Rice shooting was unreasonable and professionally unacceptable, but it wasn’t because the gun itself was a toy, it was because the officers used unbelievably bad tactics by pulling a vehicle up and parking within 10 feet of someone who was described as armed with a gun.  With no time to assess the situation from a position of relative safety (as cover or concealment may have provided), I’m not surprised the officer shot.  But as my earlier answer indicated, the lesson to learn is about the tactics that put the officer into that position in the first place.

In my view, over-emphasizing the confrontational aspects of policing has proven counterproductive.  Last year, I wrote about the prevalence of fear-based training in policing.

From their earliest days in the academy, would-be officers are told that their prime objective, the proverbial “first rule of law enforcement,” is to go home at the end of every shift. But they are taught that they live in an intensely hostile world.  A world that is, quite literally, gunning for them. As early as the first day of the police academy, the dangers officers face are depicted in graphic and heart-wrenching recordings that capture a fallen officer’s last moments. Death, they are told, is constantly a single, small misstep away. A recent article written by an officer for Police Magazine opens with this description: “The dangers we expose ourselves to every time we go [on duty] are almost immeasurable. We know this the day we sign up and the academy certainly does a good job of hammering the point home.”  For example, training materials at the New Mexico Police Academy hammer that point quite explicitly, informing recruits that the suspects they will be dealing with “are mentally prepared to react violently.” Each recruit is told, in these words, “[Y]ou could die today, tomorrow, or next Friday.”

Seth W. Stoughton, Law Enforcement’s Warrior Problem, 128 Harv. L. Rev. F. 225, 226-27 (2015) (footnotes omitted).  As Sue Rahr, a long-time police executive, member of President Obama’s Task Force on Twenty-First Century Policing and an advocate of the “Guardian Officer” model, put it: “We do our recruits no favor if we train them to approach every situation as a war. To do so sets them up to create unnecessary resistance and risk of injury.”  John S. Dempsey & Linda S. Forst, An Introduction to Policing 127 (8th ed. 2014).  This type of training not only affects officer’s use of force decisions, it affects their willingness to engage with community members.

To see the friction between relationship building and the warrior mentality, with its hypervigilant focus on preserving officer safety at all costs, consider this thought experiment: Imagine that you are a rookie police officer driving down the street, windows down, and looking for people in the community with whom you can begin building positive relationships. But you have been told (repeatedly) that your survival depends on believing that everyone you see — literally everyone — is capable of, and may very well be interested in, killing you. Put in that position, would you actually get out of your car and approach someone? And if you did, would you stroll up to start a casual conversation or would you advance cautiously, ask for identification, run a criminal background check, and request consent to search . . . and then, maybe, try to start that casual conversation? The latter, of course, is what many officers are taught to do. It is what I was taught to do as a rookie officer. My first ever “consensual encounter,” only hours into my first day of field training, followed exactly that pattern. It takes no great imagination to recognize how badly that approach, repeated over hundreds or thousands of police/civilian interactions in any given jurisdiction, hinders the creation of meaningful, collaborative relationships.

Id. at 228-29.

As a result, training based on emphasizing fear and threat makes officers less safe in two ways.  At the micro level, in individual encounters, officers who are hypervigilant to threats may view confusion or disrespect as physically threatening and respond accordingly.  For example, officers at many agencies are still trained under the “Ask, Tell, Make” approach, which is fairly self-explanatory – if someone doesn’t do what you ask them to, you tell them to.  If they still don’t do it, you make them do it.  David Perry refers to this as the “Cult of Compliance.”  Officers are trained to dominate a scene, to show “command presence,” as a matter of officer safety, but doing so can create completely avoidable conflicts.

This approach can also undermine officer safety at the macro level.  Consider Ferguson.  In the aftermath of the Michael Brown shooting, two narratives emerged.  Under one, Michael Brown had aggressively attacked Officer Wilson and was approaching him threateningly at the time he was shot.  Under the other, Michael Brown was shot while he had his hands up to surrender.  Many community members believed the second story, even after it was debunked by a thorough investigation by the Department of Justice.  Consider that for a moment.  They viewed a story about an officer executing a young man not only as entirely possible, but as more plausible than the official (and correct) story about an officer using force to defend himself.  Why?  It wasn’t because of the shooting itself or the events that took place on that day.  It was because community members no longer trusted the police.  The result of that distrust was days, weeks, and months of unrest that not endangered hundreds of officers and thousands of civilians.  You don’t see that type of reaction in jurisdictions where agencies have the trust of the community.  I’m not just talking about middle-class White communities, either.  When an officer in Richland, CA, a high-crime city north of Oakland, shot and killed someone who, it was alleged, had tried to wrestle the officer’s gun away from him, there were candlelight vigils and demands for answers, but no protests and no civil unrest.  In fact, the slain suspect’s family invited the police chief to the funeral, and he went.  That trust was built on the slow efforts of officers in individual encounters.

I heard a wonderful quotation recently: Trust is gathered in drops but lost in buckets.

Q. When we interviewed Nick Selby, he cited you to support his claim that it’s inaccurate to talk about a universal police culture. But many of the developments you point to in your papers were nationwide trends, things like the emergence of SWAT teams and the War on Drugs. You also name several events that had wide-reaching consequences for police across the nation, like the 1997 North Hollywood bank shooting and the Columbine massacre. Allowing for differences between departments, is the idea of a common culture really that far-fetched? Even if we take departmental differences into account, is there an overarching common culture? If not, why does it appear that way to the public?

A. Yeah, I still need to mail him a check for those citations…

Nick argued that there were as many police cultures as there are agencies, but I’d actually take that a step further: a single agency can have multiple cultures that depend on shift, on supervisor, on detail, and so on.  But with that said, I think there are common—although not necessarily universal—aspects of policing that make “police culture” a coherent concept.  Policing isn’t monolithic, but there are widely shared norms, values, and beliefs.

Further, the public doesn’t always understand that policing isn’t a single entity.  When one officer does something egregious, such as shooting a fleeing Walter Scott in the back, it reflects on policing nationwide.  That isn’t fair, but it’s true.  Consider the contemptible attacks on officers in Dallas and Baton Rouge; both appear to have been planned and carried out by individuals motivated by hatred for police generally, not spontaneous responses to some incident that involved the officers who were attacked.  Both attackers may have been attuned to national frustrations with policing rather than local problems: the Dallas Police Department has progressively embraced a range of reforms, while the attacker in Louisiana may have been responding to a recent shooting, but had come down from Kansas City, Missouri.  This is new, worrisome, and demands changing the way we think about police-community relations and reform.

Q. How can cops successfully transition from a “warrior” to a “guardian” mindset? To what extent does the community need to make concessions, be willing to engage, to comply? Is reform supposed to consist of top-down measures, or will the revolution begin with rank-and-file members? And is it a good idea to do away with warrior cops altogether? What if things actually got as bad as police claim they are now? Is there a place for “Dirty Harry” on the job?

A. I’m starting to work on a book project that tries to take on some of these questions, so I’m just going to offer a couple of thoughts.  First, there is a need for police reform, but there’s also the need for reform external to policing.  Perhaps we need to start with how we, as a society, evaluate the success of our police agencies – historically, we’ve looked at crime rates.  If crime was down, they were doing a great job.  If crime was up, they weren’t, and we could expect a resignation and replacement as a matter of course.

But policing has a complicated and poorly understood relationship with crime, even after all the time and effort that has been put into researching that relationship. Continuing to rely on crime rates as a metric for successful policing isn’t just silly, it’s counterproductive – it creates incentives for short-term policing tactics, such as zero-tolerance, Broken Windows-style policing, that can actually be criminogenic (that is, it can increase crime rates over the long term).  So step one is to find a better set of metrics to evaluate policing than crime rates.

Within policing, I think there’s a need for a number of changes that ultimately relate to changing officers’ expectations about what successful policing looks like.  It’s easy to describe this as “culture,” but I think it’s more useful to think of it as “principles” or “values.”  Like any reform, these changes are going to take time—I’m talking decades—and they’re going to require buy-in not just from the rank-and-file and police executives, but also from front-line supervisors, instructors, training officers, and so on.

No, there’s no place for Dirty Harry.  That image might be celebrated or glorified in the media, but behavior like that ultimately creates immeasurable problems for officers.  Let me give you a simplified example: if I, as an officer, manage to piss someone off, they aren’t just going to hold it against me.  They’re going to tell their friends and family about it, and then they’re all going to hold it against the police generally.

Q. After a stint as an investigator with the Florida DoE’s Office of Inspector General, you finished your literature degree, went to law school and became a full-blown lawprof. Before you took your current position as an associate professor at USC, you were a lecturer at Harvard. Your police background gives you cred, and your scholarship has cemented your reputation as a knowledgeable voice on police reform. All in all, not too shabby. But why didn’t you become a prosecutor? Ever felt the urge to appear in the well? What drew you back in to the academic life? And is there anything that could draw you back out? On the street? In the trenches? Maybe on the bench?

A. I thought about it very seriously, but I was a non-traditional (read: older) student when I went to law school.  I was married, had two kids, and by the time I finished my clerkship, I was in my early 30s.  That’s not old (he writes, somewhat defensively), but I was ready to start a career that I was really excited about.  There are lots of great prosecutors and defense attorneys, including some that I have tremendous respect for and would love to work with.  But I don’t think my history or experience would have been as valuable in that context as it is as an academic.

I was, and I remain, excited about academia because I think I have some insight (into policing, the way police are regulated, and the way those regulations affect officer behavior) that not a lot of legal academic have.  I’m not in any way suggesting that my experience is the be-all, end-all; we can’t gather useful information about a system as complicated as policing by looking at any one person’s experience, even if that experience dwarfed my five years as a cop.  But being able to see things from multiple perspectives puts me in a good position to work toward the improvement of a profession that I value highly and care deeply about.

*The image of Seth in uniform, in a go-cart, comes with a story that tells what he was all about as a cop on the street. In his words:

I got called to a noise complaint; a kid was driving his new go-cart around a parking lot that abutted a residential neighborhood.  I talked to the kid and his father, and they asked if they had to stop because of the complaint.  No way.  I wasn’t going to stop a kid from playing with his Christmas present at 10:00 in the morning because it made some noise (it was about as loud as a lawn mower, as I recall, but higher pitch).  I told them they could keep at it, but I had a favor to ask…  Thus, the picture.  Police work can be serious business, but no one should take themselves too seriously.

3 Comments on this post.

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  • Greg Prickett
    14 September 2016 at 3:53 pm - Reply

    This is the best Cross so far. He really understands the difference between Warriors and Guardians, about police and professionalism v. trade, militarization of the police, etc.

    • shg
      14 September 2016 at 6:55 pm - Reply

      Not only is Seth pretty brilliant, but he’s willing to call it as it is.

      • Greg Prickett
        14 September 2016 at 9:52 pm - Reply

        The guys at PoliceOne don’t care for him, which immediately moved him up several notches in my opinion. They don’t like anyone who isn’t part of the hive mind…