Privilege and policing policy

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Being innocent until proven guilty should not be a privilege, but it is. Being treated with respect and dignity should not be a privilege, but it is. I realize that I am likely treated well sometimes because I am white. This should not be a privilege. I don’t mean that I should not be treated well, I mean that this should not be a privilege denied to people based upon immutable characteristics. 

The way to fix the privilege problem is to extend the “privilege” to all, not to eliminate it. We should all be treated with genuine dignity and respect.

Michael Burger

People of color face issues in their interactions with police that are not common to all of us; we are not all impacted by structural racism in the same way. However, there are questions we all should be asking ourselves in relation to police policies and conduct—especially in the aftermath of Daniel Prude’s death at the hands of Rochester police officers.

In a Rochester Beacon interview with police union leader Michael Mazzeo in June (before the Prude case became public), he said that there are few “complaints” against the police. It was a good interview and he struck me as candid, honest and extremely bright. But what did he mean by “complaint”? Is there a specific form or a specific process one must go through before it becomes a “complaint”?  

I am the son of a prosecutor and I have friends who are prosecutors and police. Police have extended me courtesies because I am a lawyer. I understand they have a tough job and want to get it right.     

Yet as a straight, white, professional, cis-gendered man, I have had negative experiences with the police. I have never felt this had to do with my race or gender. Rather, it had to do with poor policy, training and attitude.

New mom

My wife is a white woman and a professional. She was leaving the parking garage near her gym early one morning to return home to nurse our nine-month-old. A white male police officer stepped in front of her Subaru station wagon and signaled for her to stop. He ordered her out of the car. He swiftly approached her, frisked her and cuffed her hands behind her back. Then he left her alone and defenseless while he confronted another “suspect” who the officer deemed dangerous. Leaving my wife in the potential line of fire. He eventually let her go. Why did he stop her? Someone was stealing loose change from cars in the garage.

It is rare I feel rage, but when she got home that was what I felt. I called the police immediately and asked for the chief. I got a sergeant who defended his officer. Told me what was done was textbook. He demanded to speak with my wife. 

I laid it on the line: The cop made an error. Tell me that and tell me you will retrain him. Let the arresting officer apologize, and we are done. I offered to put it in writing. He doubled down, defending his guy. I asked him to consider that a mistake by one young cop is just a teachable moment, but if what he did was departmental policy it could lead to far greater liability and departmentwide retraining. I asked him to reconsider. 

He asked to speak with me the next day. I missed his call the next day by a few seconds and called him back immediately—the call went to a room they use for recording calls. We were done here. My wife and I managed to work our way up the chain of command, no doubt as a result of our privileges as lawyers. We eventually got a meeting with the chief (not the current chief). He accused us of just wanting a lawsuit. I told him we knew where the courthouse was and we were in his office to see the right thing happen—to recognize an error was made and remedy it. He refused. On principle, we brought a claim, and the city of Rochester eventually paid.

Does this go in the “complaint” column? My wife donated the proceeds to a civil liberties organization to do Fourth Amendment work in Rochester. 

Apple picking

Several years ago I was walking down Broad Street after court, checking my smartphone, when I saw a hand reaching over my shoulder for the phone. At first, I thought it was a buddy kidding around, then I realized it was not and I tightened my grip as the robber tried to take it. I could see the Public Safety Building from where I stood. The robber got part of the battery case, but I managed to keep my grip the phone. I yelled and ran after the guy and picked up the piece of the case he had dropped. Just then another “kid” about his age came up to me to see if I was OK. Instinct told me this was not right, but I could not be sure, so I politely said I was OK and backed away crossing the street. I dialed the phone and the pair trotted off together. 

When I reported it, the police were nonchalant. Apple picking, I was told. (Apple iPhones—clever.) The robbers get the phone from your hands while you’re using it, so the device is unlocked; then they sell the phone for the data and hardware. Could I identify them? Yes, in fact, I can still see them, I replied. We don’t send anyone out on these—we’ll never catch them and you have your phone. You won’t catch them?! Look out your window! I might be able to catch them. What about the next person who gets robbed? What if they hurt someone? 

In hindsight, not expending resources on this kind of thing might be good police policy. I don’t know. I was upset. My pride was wounded. But I was not happy with the police response and I said so. Was that a “complaint”?

Mistaken identity

This one did not happen to me, but I know about it because of my job. Part of my law practice is concentrated in constitutional law. On rare occasions I have handled false-arrest cases. One innocent Black client was cleared of the gun charge against him by police body-camera footage that showed he did not have the gun. It was an honest mistake, at first. But when the client told the (white) cops they made a mistake, they said that they had video of him with the gun. Upon hearing this, the client was relieved and asked them to look at the video again to verify it was not him with the gun. (The police had arrested a group that they were chasing. The suspects were running near the client’s home and he was in his side yard when the police converged and grabbed up everyone in the vicinity, dragnet-style.)

The police promised to review the tape. Then they locked up the client and broke their promise. For four months. When the police finally turned over the video to his defense lawyer, they still admitted no mistake. The lawyer carefully reviewed video from multiple body cameras and pieced it all together: It was conclusive that not only had the police charged the wrong man, they had at first arrested the right one, and then let him go. The lawyer showed it to the prosecutor, and the charge was immediately dropped.

Did this count as a complaint to the police? The defense lawyer referred the case to me. I served a notice of claim on the city. Did this count as a “complaint”? The city refused to pay the client anything for the unlawful imprisonment and violation of his civil rights. No apology either. We sued. Was this a “complaint”? The city eventually paid the client about a year’s wages. Did this go in the “complaint” column? Was anyone disciplined? Fired? Did the chief take personal responsibility?

Leadership, policy and training

The police are only as good as their leaders and training. They have difficult, dangerous, scary jobs, and they place themselves in harm’s way for us. They deserve our respect every time they do this job with humility and care. Yet sometimes they fall short.  Don’t we all?

What can be done? Here are some questions that I would like the best police minds to help us better frame and to help us answer:

  • What is the role of police?
  • What skills do police need to fulfill their role?
  • How do we get the police to look like the communities they serve?
  • Are police guardians or guards? If both, what is the breakdown in time?
  • Should there be different types of police: social work, mental health experts, some with guns and some without?
  • Should police live in the communities they police?
  • Should we pay more to attract the best candidates?
  • Where should we recruit police?
  • What are the ideal characteristics for a police officer?
  • What kind of test will identify the best candidates?
  • Should we arrest less often?
  • Should we use jail less often?
  • What qualifies as a “complaint” against the police?
  • How should “complaints” be tracked and handled?
  • What should the police mission statement be?
  • When should official video footage be withheld, if ever?

Answering these questions would be an important first step toward achieving better and more just law enforcement in our community.

Michael Burger is a is a commercial and fiduciary relationships litigator and partner with Santiago Burger LLP. 

3 thoughts on “Privilege and policing policy

  1. You raise some excellent points. I was a training manager at a nuclear power plant where many of the key personnel were former “navy nukes” people who served on nuclear subs. A saying they constantly repeat was that “selection beats the hell out of training.” The key to police reform begins with selecting candidates that will ultimately make the best patrol officers. It’s clear to anyone who examines the issue that we need to improve the selection criterion, which may require updating civil service requirements. Once potential candidates are selected, we need to do a much better job of psychological screening. Once on the job, a periodic psychological reassessment should be required. Senior management, with input from the community, must reevaluate training periodically with recommendations being peer-reviewed. Training managers should incorporate data from all types of complaints, and their resolution, which should be part of continuing training. Also needing to be revamped is Field Training Officer selection and evaluation and altering first-line supervisors’ role. As you said, it’s a tough job, and too often, when police are called to intervene in criminal activity, descriptions are vague enough so that it’s nearly impossible for officers to identify the alleged perpetrator accurately. You also make a good point that police should treat “suspects” with greater flexibility. Still, cops have told me that even if they know who you are, they don’t know what you just did, or might do so in the name of the ubiquitous “officer safety” response they might handcuff the wrong person and be less than courteous (from your or your wife’s perspective). Keep in mind cops are trained in a command and control model.
    Before any reform efforts can begin, police and representative community members must engage in an honest and continuing collaboration to understand the challenges from both sides. There must be “ownership” of the rank and file officers’ reforms if reform is to occur. The average tenure of a police chief is about three years. Tha’s not enough time to entirely alter an organization’s culture.
    Finally, I could save the City of Rochester a great deal of money and aggravation if they hired me rather than a DC Consultant to design a complete RPD reform plan. I’ve been looking at this issue since the early ’90s, both from a community perspective and a police perspective, and I know what needs to be done. First, we need an administration that can eschew their crisis to crisis mode and begin a strategic reform initiative.

  2. Mike-
    excellent piece. In 1975-76 I served on the Crimi Commission, formed after a police officer had shot and killed a young black woman in the process of responding to a domestic relations call. We worked hard for months and issued a 125 page report, making recommendations involving many of the issues you refer to. The public library has a copy of the report (The Final Report of the Citizens Committee on Police Affairs: Rrq352.35 C5812f. I think you might find it interesting. “The more things change, the more they stay the same.”

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