Ingredients to Effective Police Reform

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*** , from the University University the , from & Michaela & Flippin magna cum laude cum magna ** iminal Justice, Arizona State University;

by 405 405 iminal justiceTemple from University in 1999. His REFORM terests primarily focus on procedural justice. on terests primarily focus Henry F. Fradella, Henry F. *

S E Michael D. White, L C Doctoral student and research assistant, School of Criminology and Criminal Justice, I Professor, Schoolof Criminology and Cr Professor and Associate Director, School of Criminology and Criminal Justice, Arizona police. However, the roadmap to effective police accountability is tangible and police.is tangible effective to and roadmap police However, accountability the delineateguiding eightwe this principles Article, known. In eight and strate- The summer of 2020 was marked by a series of high-profile police killings of killings of police by a series of high-profile marked 2020 was The summer of in- racial of pernicious form most highlighting the as citizens, excessive force justice in American The policing. persistence of the use excessive of force problem over decades raises serious questions regarding we what know about police to argueaccountability, defunding abolishingled or for has and even some the HOW CAN WE ACHIEVE ACCOUNTABILITY IN POLICING? POLICING? IN ACCOUNTABILITY HOW CAN WE ACHIEVE T *** * ** THE (NOT-SO-SECRET) INGREDIENTS TO EFFECTIVE POLICE POLICE EFFECTIVE TO INGREDIENTS THE (NOT-SO-SECRET) R M K of South Carolina in 2015 and an M.S. in criminology and criminal justice from Arizona State research in 2018. Her in University Arizona State University. She earned a B.A. in sociology, sociology, in B.A. a She earned University. State Arizona Associate Director, Center for Violence Prevention and Community Safety, Arizona State State Arizona Safety, Community and Prevention Violence for Center Director, Associate University. Dr. White earned a Ph.D. in cr and misconduct. technology, force, of use including the police, involve primary research interests Send correspondence to [email protected].

State Arizona Law, College of O’Connor Day Sandra Law, of Professor Affiliate University; State University. Dr. Fradella earned a master’s in forensic science and a J.D. from The George Washington University in 1993and a Ph.D. in justice studies from Arizona State University in 1997. His research interests substantive, include procedural, and evidentiary criminal law; the dynamics of legal decision-making; and the nature, sources, and consequences of variations and changes in legal institutions or processes. AA LCB_25_2_Art_2_White_Fradella&Flippin Delete) (Do Not 11:37 6/14/2021 AM C Y 43400 lcb 25-2 Sheet No. 9 Side A 07/02/2021 10:34:26 07/02/2021 9 Side A Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 9 Side B 07/02/2021 10:34:26 M K C Y 442 442 444 444 ...... 439 ain, and we discuss and we discuss ain, ...... 432 432 ...... 421 ...... 431 431 ...... 442 ...... 424 ...... 411 411 ...... 418 418 ...... 430 ...... 417 ...... 428 ...... 427 427 ...... 420 ...... 445 ...... 434 ...... 425 ...... 436 difficult to implement and maint to implement difficult ...... 438 ...... 415 415 ...... 419 419 ...... 412 412 ...... Oversight ...... Oversight 1. 14141) § U.S.C. 42 (Formerly 12601 § U.S.C. 34 in Decrease 2...... Change of Agents Who Are Chiefs Police Effective of The Loss for Achieving It Policing E. Legal Considerations Legal E. C. C. CivilReformImpediment Unionsand to Service as an D. Developments Troubling Recent Two B. Poor Leadership B. Poor A. Police Subculture A. Police H. External Oversight External H. G. G. System Intervention Early Non-Punitive F. Process Compliant Civilian Accessible E. E. A ProactiveUnit Internal Affairs C. C. Effective Administrative Policy D. Effective SupervisionReview and B. Effective Training B. Effective A. Recruitment Selection Careful and H. H. Policing of Cost Social the for Account G. Become Data-Driven Become G. F. Be Transparent F. Be E. E. Organization Become a Learning D. Change on Focus Organizational C. C. ProceduralMechanism and Legitimacy Justice Adopt as a Embrace B. AcknowledgeUndercurrent the Persistent of RacialInjustice in A. Prioritize Protect-Life the Mission gies that have emerged as reoccurring themes in the pursuitof police accountability andprinciples The transparency. and strategies of police effective ac- proven have countability the positivebarriers to primary change. Despite theseobstacles, we conclude ofwith a sense optimism aboutthe potential for real police the im- in reform near future. mediate to V. Conclusion ...... 449 449 ...... Conclusion V. IV. IV. 435 ...... Accountability Police Effective to Barriers The Primary III. III. 424 ...... Accountability Police for Effective Strategies II. II. 410 ...... Accountability of Police Principles The Foundational I. Introduction ...... 407 407 ...... Introduction I. 406 406 REVIEW LAW & CLARK LEWIS 25.2 [Vol. LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM Preface ...... Preface 407 43400 lcb 25-2 Sheet No. 9 Side B 07/02/2021 10:34:26 07/02/2021 9 Side B Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 10 Side A 07/02/2021 10:34:26 ARNER G DVISORY

A A. NDEPENDENT I

RYAN RYAN

ATIONAL . B ]. In this Article, and N EPORT R The Redbook EPORT OF THE EPORT R 31–32 (1991), https://archive.org/ https://archive.org/ 31–32 (1991), ERNER

EPORTTHE OF , Images from the recent protests protests recent the from Images R 9:06 AM), 29, 2020, (May T ’ , EP D son/63-088b7f52-614e-43b7-b083- (4th ed. 2018). According to Rule 5.3 of that Rule that of to 5.3 According 2018). (4th ed. To some [Blacks] police have come police [Blacks] have come some To WITTER * * * * * * EPARTMENT ISORDERS TYLE D * * * * * * OLICE S D ’s convention to allow authors to choose whether to to whether allow to ’s convention choose authors to P

PREFACE IVIL IVIL EGAL OLICE C PD/ChristopherCommission LAPD.pdf. L P L.A. 5 (1968) [hereinafter K [hereinafter 5 (1968) excessive use of force by police has led to public out- public to led has police by force of use excessive I. INTRODUCTION I. INTRODUCTION

N ON ’ Police Misconduct and Malpractice: A Critical Analysis of Citizens’ NGELES NGELES ‘It’s| St. Deja Vu’ Louisans Notice Similarity BetweenMinneapolis and A tests-minneapolis-fergu ANUAL OF OMM ISORDERS M 80 (1998). 80,

C OS OS D N ON THE A L

’ : Chicago Manual ofStyle IVIL IVIL Los Angeles in 1992 (riot after the acquittal of the four officers who who officers four the of acquittal the after (riot 1992 in Angeles Los , KSDK (May 28, 2020,6:40 PM), https://www.ksdk.com/article/ C OMM OLICING C DVISORY A

EDBOOK . L R ’ , 21 P Jasmine Payoute, Payoute, Jasmine AT HE NDEP The text of this Article is formatted in The this Articleformatted of with is accordance text T Lersch, Kim Michelle See N I Barack Obama (@BarackObama), T

For more than 50 years, 50 than more For The Commission has found, however, that there is a significant number of of number a significant is there however, that has found, The Commission officers who repetitively misuse force and persistently ignore the written policies and guidelines. The problem of of the Department. regarding. force. man- supervision, of a problem fundamentally LAPD is the in force excessive leadership. and agement, to symbolize [W]hite power, [W]hite racism, and [W]hite repression. And And repression. [W]hite and racism, [W]hite power, [W]hite symbolize to The attitudes. [W]hite these and express do reflect police many that is fact the atmosphere of hostility and cynicism is reinforced by a widespread belief standard” “double a in and brutality police of existence the in [Blacks] among [W]hites. for one and [Blacks] for protection—one and justice of be “normal.” can’t It America. 2020 in be “normal” shouldn’t This The police are not merely a “spark” factor. a “spark” not merely are police The ., 4 5 6 1 2 3 M K OMMISSION ON OMMISSION ON THE OMMISSION ON download/ChristopherCommissionLA U.S. former https://twitter.com/BarackObama/status/1266400635429310466 the (statement of president on the death of George Floyd). Protests Ferguson news/local/george-floyd-pro

C C 2021] POLICE ACCOUNTABILITY ACCOUNTABILITY 407 POLICE 2021] LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM rage, incited riots, and prompted calls for reform. prompted riots, and rage, incited ET AL consistent with the capitalize racial and ethnic terms, we followrecommendations the of the American Psychological Association and the American Medical Association by capitalizing all such words. Complaints style manual, numbers ten and below are spelled out, whereas numbers 11 and above are expressed expressed are above and 11 numbers whereas out, spelled below are ten and numbers manual, style in numerals. in summer 2020 are eerily and sadly similar to images from Ferguson and Baltimore and Baltimore Ferguson from images to similar sadly and eerily are 2020 in summer in 2014–2015, C Y 43400 lcb 25-2 Sheet No. 10 Side A 07/02/2021 10:34:26 A 07/02/2021 10 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 10 Side B 07/02/2021 10:34:26

, M K C Y Why Why ORCE ORCE (May (May , N.Y. , N.Y. F F TOP AND KOLNICK CRIVNER OST Robert A. A. Robert S S

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P painfully painfully

42 (1993); 42 (1993); . H. The quotes quotes The M. EPORT OF THE R XCESSIVE ASH -its-racist-roots/. Keisha N. Blain, The end result The end result ORCE E (2016);

F LLEN LLEN RADELLA , W Why Police Violence INAL INAL F EROME EROME

(June 30, 2020, 4:00 4:00 30, 2020, (June E F

see also see , F. 9–12 cf. SE OF U ENRY ENRY ORTUNE ACTIC H ONTROLLING ONTROLLING

OLICING (2015) [hereinafter T [hereinafter (2015) T

, F C P & note 2, at 31–32. 31–32. 2, at note XCESSIVE XCESSIVE (June 4, 2020), https://news.harvard. https://news.harvard. 4, 2020), (June HITE HITE E 19–30 the CommissionChristopher in 189, 189 (2019); 189 (2019); 189, W

OLICING

ENTURY ENTURY . supra

P C , ns-why-america-cant-escape D. EV T ’ R ST How a 50-Year-Old Report Predicted America’s America’s Predicted Report 50-Year-Old a How AZETTE Ghosts of Freddie Gray: Minneapolis Is the New 481, 487–91 (1994); (1994); 481, 487–91 EP OLICING SYCHOLOGY IN G 21

P P D OIS . B ICHAEL ICHAEL How Reasonable Is the Reasonable Man?: Police and U ARV some police departments throughout the United United throughout the departments some police OLICE AND THEOLICE AND OLICE OLICE P P P , H ENTURY floyd-protests-police-brutality-kerner-commission. floyd-protests-police-brutality-kerner-commission.

ORCE ON ON ORCE ONTROVERSIAL : C F , 16 D , 16 RIMINOLOGY note 12, at 117–45,155–59. (June 24, 2020, 10:40 AM), https://www.vox.com/first- AM), 10:40 2020, 24, (June C C AW L.A.

ST ST L ASK & OX OLE OF

note 1,5. at 21 T supra supra R S , L. ’

. , V HE supra (May 31, 2020, 2:33https://www.baltimoresun.com/opinion/ 2020, PM), (May 31, and Newark and many other cities in the 1960s. the in cities other many and Newark and BUSE OF A T ,

RIM N ON THE , A ’ In Los Angeles, the Ghosts of Rodney King and Watts Rise Again Watts and King Rodney of Ghosts the Angeles, In Los note 3. C BOVE THE BOVE THE

ORCE ON ON ORCE RADELLA F F RESIDENT

EPORT , A OMM supra R USTICE & , P C ASK J

, 85 J. , 85 SE AND . YFE T F U S

’ HITE HITE J. Gwen Prowse & Vesla Mae Weaver, Weaver, Mae Vesla & Prowse Gwen T OF ’ and most recently from former President Obama in 2020 in former Obama from President and most recently HE HE ERNER NDEP ], https://cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf; J ], https://cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf; Policing in American History W See, e.g. I Obama, For a discussion of the origins and persistent undercurrent of racial injustice in U.S. T Tim Arango, See K EP Excessive use of force by police is the most pernicious form of that racial racial that of form pernicious most the is police by force of use Excessive (Feb. 14, https://www.nytimes.com/2020/06/03/us/rodney-king-george-floyd-los- 2021), (Feb.

: D 13 14 10 11 12 7 8 9

AMES AMES (1994), https://www.ncjrs.gov/pdffiles1/Digitization/146206NCJRS.pdf the (documenting J

IMES EPORT RESIDENT RISK America Can’t Escape Its Racist Roots editorial/bs-ed-0601-freddie-gray-minneapolis-20200529-5xkxdrbeaba5znrh5wfmkqojie-story. editorial/bs-ed-0601-freddie-gray-minneapolis-20200529-5xkxdrbeaba5znrh5wfmkqojie-story. html. injustice. Even though policing has advanced considerably in the twenty-first cen- twenty-first in the considerably advanced has policing though injustice. Even tury in terms ofand tools tactics, T edu/gazette/story/2020/06/orlando-patterson-explai is a continuing cascade of minority lives lost, public outrage, widespread distrust of of distrust widespread outrage, public lost, lives minority of cascade is a continuing person/2020/6/24/21299649/george- at leastpolicing for the past 175 see M years, https://www.washingtonpost.com/outlook/2020/05/30/violence- AM), 3:00 2020, 30, minneapolis-is-rooted-history-racist-policing-america/; David A. Harris, Against Black People Persists—AndWhat Can Be Done About It States still struggle to effectively control their officers’ use of force. use of officers’ their control to effectively struggle States still

P R & U.S. iii ongoing problems with controlling police use of force proposing and psychological interventions address the problem). to F 298f9daa96d6;Baltimore Sun Editorial Board, Baltimore | Commentary 408 408 beat Rodney King), REVIEW LAW & CLARK LEWIS 25.2 [Vol. LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM demonstrate the long-term persistent undercurrent of racial in U.S. polic- injustice of the undercurrent racial persistent long-term demonstrate ing. PM), https://fortune.com/2020/06/30/police-violence-brutality-black-racism/; Liz Mineo, Current Racial Reckoning Racial Current Brown, 1991, Violence in Minneapolis is Rooted in the History of Racist Policing in America Smith, C. William & Alpert P. Geoffrey Excessive Force Excessive above from the Kerner Commission in 1968, from the above Commission Kerner angeles.html. angeles.html. 43400 lcb 25-2 Sheet No. 10 Side B 07/02/2021 10:34:26 B 07/02/2021 10 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 11 Side A 07/02/2021 10:34:26

, A. (Jan. AND (Aug. (Aug. The U.N. , , CNN , CNN (Jan. 5, 5, (Jan. AROL AROL (Jan. 6, (Jan. 6, C IMES IMES

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—perhaps best illustrated illustrated best —perhaps AMUEL S (3d ed. Meghan G. McDowell & Luis A. CCOUNTABILITY A see also see see also see also OLICE of force, researchers, policymakers, and and policymakers, researchers, of force, P Reducing Police Use of Force: Case Studies and tention to identifying to identifying tention CCOUNTABILITY . 343, 354–55 (2013). (2013). 354–55 . 343, A note 14,5; at EHAV 373 (2018); Glenn D.Walters & P. Colin Bolger, B and Kenosha (WI) police shot Jacob Blake. Jacob shot police (WI) Kenosha and OLICE note 14. P 341 (2019). (2019). 341 What to KnowAbout Breonna Taylor’s Death note 12, 117–45; at ANDBOOK ON supra supra

, H

, IOLENT IOLENT supra supra

supra , V ,

WhatWeKnow About the ShootingJacob of Blake RIMINOLOGY EPORT ORLD OF & RIME Louisville (KY) police killed Breonna Taylor, Breonna killed police (KY) Louisville C R There’s a GrowingCall to Defund the Police. Here’s What It Means C W

RIMINOLOGY EPORT What to Know About the Death of Rayshard Brooks Confidence in Police Is at Record Low, Gallup Survey Finds & C R EW RADELLA note 12. 12. note ORCE F N

F Unfortunately, our understanding of what works and does not work work not does and what works of understanding our Unfortunately, RITICAL & ORCE ORCE RUGS RUGS GGRESSION HE supra and seriousquestions abouttheir legitimacy F ASK T D ‘Disband, Disempower, and Disarm’:Amplifying the Theory and Practice of Police

T , HITE HITE ASK , 26 C , 18 A , 18 T Blain, RichardOppel A. al., et Jr. Ortiz, Aimee Christina Morales, W Aimee Ortiz, Ortiz, Aimee See Andrew, Scottie al., et Prenzler Tim see review, a For XPERIMENTAL XPERIMENTAL In this Article, we argue the principles and strategies for effective police ac- police effective for strategies and principles argue the we Article, In this Given the consequences of police use of police the Given consequences E

19 20 21 22 23 24 15 16 17 18 M K FFICE ON RCHBOLD recent example is the final report of the President’s Task Force on 21st Century Century 21st Force on Task President’s the of report final the is recent example trust, public building for recommendations 60 nearly identified which Policing, accountability. crime, andmore effectively police reducing enhancing police killed Rayshard Brooks, Rayshard killed police years after that final report was released, police continue to use deadly force against against force deadly use to continue police released, was report final that after years per- and questionable, legally at that, are circumstances best, under people color of police (MN) Minneapolis when as such criminal, and unjustifiable aptly more haps Floyd, George killed Fernandez, https://www.cnn.com/2020/06/06/us/what-is-defund-police- AM), 10:32 17, 2020, (June https://www.nytimes.com/article/breonna-taylor-police.html. 6, 2021), 2021), https://www.nytimes.com/article/rayshard-brooks-what-we-know.html. Prospects A O 2021] POLICE ACCOUNTABILITY ACCOUNTABILITY 409 POLICE 2021] the police, LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM

Procedural Justice Perceptions, Legitimacy Beliefs, and Compliance with the Law: A Meta-Analysis 15 J. 12, 2020), https://www.nytimes.com/2020/08/12/us/gallup-poll-police.html. https://www.nytimes.com/2020/08/12/us/gallup-poll-police.html. 12, 2020), by amplified calls in summer 2020 to defund the police. the defund 2020 to in summer calls amplified by persistence of the excessive use of force problem raises serious questions regarding regarding questions serious raises problem force of use excessive the of persistence the last over anything we learned Have accountability. police what about we know effective of components the Are force? of use police control how to about 50 years 2020? in elusive still accountability police po- and literature scholarly both the in and well-established are known countability practice. lice trnd/index.html. Abolition 2021), https://www.nytimes.com/article/jacob-blake-shooting-kenosha.html. strategies that can provide accountability with regard to use of force. of use to regard with accountability provide thatstrategies can police leaders have devoted significant at significant devoted have leaders police C Y 43400 lcb 25-2 Sheet No. 11 Side A 07/02/2021 10:34:26 A 07/02/2021 11 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 11 Side B 07/02/2021 10:34:26 M K C Y Obstacles In this In this

At Liberty:

, ACLU (Aug. 1, 2019), 1, 2019), (Aug. , ACLU Consent Decrees:An Approach to Police the contributions of Dr. Jessica Saunders and 239 (2017).

Q. OLICE OLICE , 20 P , at iv–v, U.N. Sales No. E.11.IV.5 (2011), https://www.unodc.org/pdf/ https://www.unodc.org/pdf/ (2011), E.11.IV.5 No. U.N. Sales iv–v, , at For more information, see Geoffrey P. Alpert et al., et al., P. Alpert Geoffrey see information, more For thisPortions of an unpublished Article prepared by from were report the authors drawn Emerson Sykes, the host of the series podcast ACLU’s “At Liberty,” interviewed ACLU Moreover, these principles and strategies have proven very difficult to establish establish to difficult very proven have strategies and principles these Moreover, Several guiding principles should serve as an anchor for effective police ac- police effective for anchor an as serve should principles guiding Several 26 27 25 NTEGRITY II. THE FOUNDATIONAL PRINCIPLES OF POLICE ACCOUNTABILITY ACCOUNTABILITY OF POLICE PRINCIPLES FOUNDATIONAL II. THE criminal_justice/Handbook_on_police_Accountability_Oversight_and_Integrity.pdf. Article, we take a step back and review what we know about police accountability. accountability. police about know we what review and back step a take we Article, for critical ingredients (2) and guiding (1) principles list a of outline Our goal is to princi- these if question: difficult the tackle also We accountability. police effective to to struggle continue departments police why do known, are and strategies ples images like just look 2020 of summer from the images do Why them? implement offer some and reform police to barriers the primary discuss We from summer 1967? accountability. for institutionalizing recommendations Accountability and Reform for the Civil Rights Division, U.SDepartment of awarded grant Justice, as part of a to Arizona “Evaluating titled The grant, Ventures. Arnold and Division Rights by the Civil University State DecreesDepartments,” on Police Justice Consent was Department awarded of the Impact of U.S. in 2015Obama Administrationand the canceled under in 2017 under the Trump Administration. The authors gratefully acknowledge that earlier project. Dr. on Janne Gaub staff attorney Carl Takei, who litigates police practices, about such events. and Opportunities in the Fight for Police Accountability Police for Fight in the Opportunities and https://www.aclu.org/podcast/obstacles-and-opportunities-fight-police-accountability-ep-58. I 410 410 dialogue contentious the in lost gotten extent, some to has, accountability in police lead- police and policymakers, abolitionists, researchers, reformers, police among police in successfully implemented been have they that fact the despite maintain and REVIEW LAW & CLARK LEWIS departments across the country progressiveby police chiefs and, in some cases, as a civil following decrees consent (i.e., oversight judicial federally-imposed of result of Justice). Department U.S. Division, Rights Civil the by filed claims 25.2 [Vol. LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM

countability. These include: prioritize the protect-life mission; acknowledge the per- the acknowledge mission; protect-life the prioritize include: These countability. and adopt legitimacy embrace policing; in injustice of racial sistent undercurrent focusas change; for organizational a it; justice mechanism on achieving procedural account and data-driven; become transparent; be organization; learning a become below. is described principles the of Each policing. of cost social for the ers. 43400 lcb 25-2 Sheet No. 11 Side B 07/02/2021 10:34:26 B 07/02/2021 11 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 12 Side A 07/02/2021 10:34:26

, see see HE In In T

: OLDING The Split- H 119 (2016) 119 (2016) ISCONDUCT in , M ORCE ORCE F RANSACTIONS OLICE T P

note 28, at 55, 68; 68; 55, at 28, note , James J. Fyfe, J. Fyfe, James SE OF OPS , Apr. 2015, at 1, 1–2, 1, 1–2, at , 2015, Apr. This lens considers the the considers lens This supra U C IOLENT IOLENT , V see also also see AD B in

: , OLICING P P U CCOUNTABLE RINCIPLES ON A P AMMED AMMED 169 (2013). (2013). 169 , J Fyfe’s argument is grounded in his belief inbelief his is Fyfe’sargument grounded OLICE P HITE UIDING ERSPECTIVES INERSPECTIVES G W

P , From Warriors to Guardians: Recommitting American Police D. EPARTMENT note 14, at 19. EW D OLDING ORUM H F report, the Police Executive Research Forum noted “the “the noted Forum Research Executive Police the report, ], https://www.policeforum.org/assets/30guiding principles.pdf. ], https://www.policeforum.org/assets/30guiding , N supra

in ICHAEL ICHAEL , Moreover, the narrow, “split-second” lens for reviewing for lens reviewing “split-second” the narrow, Moreover, , OLICE M

P Preface: Observations on the Study of Police Accountability Police Use of Nondeadly Force: From Determining Appropriateness to to Appropriateness Determining From Force: Nondeadly of Use Police & 207 (Anne Campbell & John J. Gibbs eds., 1986). 1986). eds., J. Gibbs John & Campbell 207 (Anne xiii, xxii (Candace McCoy ed., 2010); ITY ITY EPORT ESEARCH ESEARCH C RINCIPLES R ANE R note 28, at 218.

K .

ORK J.

Y ORCE ORCE XEC F supra supra E ERSONALITY EW P CCOUNTABLE ASK OBERT N A William Terrill, Fyfe, R Rice, K. Stephen & Rahr Sue T Candace McCoy, 30 Guiding Principles OLICE Dr. James Fyfe repeatedly argued “the primary purpose of the police is to pro- to is police the of purpose primary “the argued repeatedly Fyfe James Dr. The lens for viewing any coercive police action should consider all of the offic- the of all consider should action police coercive any viewing for The lens The protection of life sentiment was reflected in the final report of the Presi- the of report final the in reflected was sentiment life of protection The P 29 30 31 32 33 28 M K OLICE OF IMITS that a singular focus on egregious police behavior that violates the law is too narrow. narrow. too is law the violates that behavior police egregious on focus a singular that actions police coercive address also should accountability police effective Instead, arethatunnecessary, overly aggressive, and careless, lawful but some refer (what to awful”). but “lawful as https://www.ncjrs.gov/pdffiles1/nij/248654.pdf. https://www.ncjrs.gov/pdffiles1/nij/248654.pdf. Assessing the Impact of Policy of Impact the Assessing Culture to Democratic Ideals also

P L 2021] POLICE ACCOUNTABILITY ACCOUNTABILITY 411 POLICE 2021] A. Prioritize Protect-Life the Mission tect life.All policy followsfrom that.” LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM AND THE ers’ actions during an encounter—start to finish—and simply ask, were the officer’s officer’s the were ask, simply finish—and to encounter—start an during actions ers’ mandate?” life of protection the with “consistent actions police officer use of force often excuses such violence because it ignores earlier poor poor earlier ignores it because violence excuses such often force use of officerpolice decisionsby the officerand focuses only the actions on immediatelypreceding the force. use of their decisions made by an officer at the earliest stages of an encounter. Did the officer officer the Did encounter. an of stages earliest at the officer an by made decisions maintain officer Did the and why? is what happening to explain time give a citizen unnecessarily antago- that use language or behavior officer the Did distance? safe prematurely? his Did her firearm or unholster the officer Did the nized the citizen? none Though the encounter? de-escalate to opportunities of advantage take officer in- that factors are they violations, legal or policy potential represent issues these of protection-of-life the violate potentially and violence unnecessary of risk the crease “guardian” mindset, the with also consistent isreview of lens broader mandate. This or “warriors are officers police whether over debate ongoing the in highlighted guardians.” [hereinaffter PERF P dent’s Task Force on 21st Century Policing which states that “a clearly stated ‘sanc- stated clearly “a that states which Policing Century 21st on Force Task dent’s mind.” officer’s every of in the forefront be also must philosophy life’ tity of Second Syndrome and Other Determinants of Police Violence Police of Determinants Other and Syndrome Second C Y 43400 lcb 25-2 Sheet No. 12 Side A 07/02/2021 10:34:26 A 07/02/2021 12 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 12 Side B 07/02/2021 10:34:26

, M K

C Y NITED (2020), (2020), U NFINISHED U ORCE ORCE F S National Con- National ’ Chiefs Police of SE OF OLICE IN THE THE OLICE IN MERICA at 16. U P A Id.

: In January 2017, 11 law law 11 January 2017, In RBAN The sanctity life of human , U APER ON P that was updated in July of 2020. of July in updated that was ECONSTRUCTION ICHARDSON ISCUSSION ISCUSSION R e International Association of The Evolving Strategy of Police:Minority A View

D g in their power to preserve life. life. preserve to in power g their leased a policy paper entitled entitled paper a policy leased F. , R w Enforcement (IADLEST),National Association the ONER AMES AMES F J note 37, at 6–7. OLICY AND RIC P note 29, at 34. 34. at 29, note Jan. 1990, at 1, 3–4, https://www.innovations.harvard.edu/

, see also see supra at 203 (1988)). (1988)). 203 at

supra supra

, ONSENSUS ONSENSUS OLICING P C “Whites staffed urban police forces as well as State militias, in- militias, State as well as forces police urban staffed “Whites RINCIPLES 1863–1877, After the abolition of slavery, police became the enforcers of segregation of segregation enforcers the became police of slavery, abolition the After P

, at 7 (quoting E at 2. ATIONAL Id. Hubert Williams & Patrick V. Murphy, Williams & Murphy, Id. Tulsa, Oklahoma. of section Greenwood the attacked people White of In 1921, a mob PERF N 19 (Raymond A. Mohl ed., 1974). 1974). ed., A. Mohl 19 (Raymond It is long overdue for police to acknowledge their roles as instruments of control control of instruments as roles their acknowledge to police for overdue long It is 36 37 38 39 40 34 35 EVOLUTION ERSPECTIVES ON TATES sites/default/files/121019.pdf; Three hundred people were killed and the entire section of the city was burned down, effectively effectively down, burned was city the of section the entire and killed were people hundred Three eradicating whatbeen had to as “Black referred Wall Street.”Notably police arrested the Black Perhaps it is therefore unsurprising that even when Black communities found ways ways found communities Black when even that unsurprising therefore is it Perhaps Greenwood as the commonplace, lynchings were when era an during prosper to inhabitants. their and such areas protect to little did police massacreillustrates, The opening sentence of the policy section states: “It is the policy of this law en- this law of policy is the “It states: section policy of the sentence The opening life.” human preserve and to value agency forcement and the “Black Codes” restricting labor, housing, and a range of social practices on on practices social of aand range housing, labor, restricting Codes” “Black and the racial grounds. of Police Organizations (NAPO), the National Association of National of Association Enforcement Law (NAPO), the Women Organizations Police of Executives Enforcement Law Black of Organization National the (NAWLEE), Executives (NTOA).Association and the National Tactical(NOBLE), Officers (IACP), the Hispanic-American Police Command Officers Association (HAPCOA), the Officers the Command (HAPCOA), Association Police (IACP), the Hispanic-American International Association of Directors of La

https://www.theiacp.org/sites/default/files/2020-07/National_Consensus_Policy_On_Use_Of_ Association includes the this paper authored consortium that jointly 07102020 The Force v3.pdf. of State Criminal Investigative Agencies (ASCIA), the Commission on Accreditation for Law Law Federal the (FOP), Police of Order Fraternal the (CALEA), Agencies Enforcement th Association (FLEOA), Officers Enforcement S R 412 412 suspects] criminal and officers, police public, general the [of life of human sanctity does.” agency an everything of heart the at be should REVIEW LAW & CLARK LEWIS 25.2 [Vol. LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM sensus Policy and Discussion Paper on Use of Force on Use Paper Discussion and sensus Policy enforcement leadership organizations re organizations leadership enforcement tended . . . to ‘keep good order and discipline amongst the [Black] population.’” [Black] the amongst discipline and order good ‘keep . to . . tended P principle involves treating all people with dignity and respect, and it places a pre- a places it and respect, and dignity with people all treating involves principle everythin doing officers on police mium B. AcknowledgeUndercurrent the Persistent of RacialInjustice Policing in Slave control. that by perpetuated harms attendant the and color of people over in especially America, Colonial in policing of forms earliest the constitute patrols the South. 43400 lcb 25-2 Sheet No. 12 Side B 07/02/2021 10:34:26 B 07/02/2021 12 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 13 Side A 07/02/2021 10:34:26

, RUGS SQUIRE D see also see Indeed, Indeed, , E (July 17, 17, (July AR ON ON AR W IMES T

ming mob, but the once ming once mob,but the ACE IN IN THE ACE , N.Y. (July 13, 2015), https:// https:// 2015), 13, (July R

: AW (Mar. 29, 2016, 2:00 PM), PM), 2:00 2016, 29, (Mar. L CausesInner-City of Poverty: Eight

TLANTIC OX Was Nixon’s War on Drugs a Racially The , A NDER , V U But even as the Civil Rights Movement Movement Rights as the Civil But even L.J. 1419, 1428, 1432–34 (2016) (noting the deep NEQUAL

. 33, 43 (1998). 43 (1998). 33, The System Is Working the Way It Is Supposed To: The The To: Is Supposed It Way the Is Working The System , U EO hts, Ohio, did not involve a stor

note 37, at 11. note 37, at 11. This, in turn, led Black people to see “the police as as “the police to see people Black in turn, led This, ITYSCAPE ROVINE , 104 G P The War on Drugs: How President Nixon Tied Addiction to Crime to Addiction Tied Nixon President How Drugs: on War The supra supra , 3 C Paul Butler, ARIE ARIE M see also ORIS ORIS A VeryAbbreviated History of the Destruction of Black Neighborhoods D The Destruction of a Black Suburb , MichaelTeitzKaren B. Chapple, & , Emily Dufton, Dufton, , Emily e.g.

see also see also at 10–11; ; (Mar. 26, 2012), https://www.theatlantic.com/health/archive/2012/03/the-war-on- 2012), (Mar. 26, What to Knowthe About Tulsa Greenwood Massacre Williams & Murphy, Id. See, Williams & Murphy, See, e.g. Id. When the community policing era began during the late 1970s, people of color of color people 1970s, the late during era began policing the community When The economic prosperity that built a strong middle class in the post-World post-World in the class middle a strong built that prosperity economic The 44 45 41 42 43 M K TLANTIC Gabrielle Bruney, Motivated Crusade? It’sa Bit More Complicated. drugs-how-president-nixon-tied-addiction-to-crime/254319/ (explaining the politicaldrugs-how-president-nixon-tied-addiction-to-crime/254319/ causes (explaining of Indeed, ones). health public than rather abuse, and use substance to responses justice criminal Richard Nixon’s domestic adviser, Ehrlichman, policy that Nixon John reported the warstarted on drugs for explicitly German racist reasons. Lopez, 2020), https://www.nytimes.com/2020/06/20/us/tulsa-greenwood-massacre.html; thriving Black community is nonetheless shambles in as a result of neglect that accident.” was “no Semuels, Alana (May 30,(May 2020), https://www.esquire.com/news-politics/a32719786/george-floyd-protests-riots- black-comminity-destruction-history/. Sadly, such ruinous toactions confined the distantare not past. The decimation of Lincoln Heig (2007). 98–104 A Many of these conditions prompted police responses, especially in the wake of the the of wake the in especially responses, police prompted conditions these of Many drugs. and crime on “wars” symbolizing the entire‘system’—those institutionsand resources that had been so needs.” to their unresponsive people defending their homes and stores, rather than White people who were attacking. Maggie Astor, 2021] POLICE ACCOUNTABILITY ACCOUNTABILITY 413 POLICE 2021] LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM law enforcement responses to urban problems enhanced police views of an “us vs. vs. “us of an views police enhanced problems urban to responses law enforcement were largely excluded from efforts to improve police-community relations. police-community to improve efforts from excluded were largely strain and distrust beween and communitieslaw of color). enforcment www.theatlantic.com/business/archive/2015/07/lincoln-heights-black-suburb/398303/. www.theatlantic.com/business/archive/2015/07/lincoln-heights-black-suburb/398303/. reasons to doubt Ehrlichman’s veracity in light of his hatred of Nixon, because he served time in in there are some time Although https://www.vox.com/2016/3/29/11325750/nixon-war-on-drugs. served he because Nixon, of hatred his of light in veracity Ehrlichman’s doubt to reasons prison as a result Watergate, of is indisputable it Nixon that and, later, Ronald Reagan, both fostered responses to many urban social problems that shifted them into the realm of criminal WarII perioddid not extend to most membersof racial andethnic minority groups of effect continuing which of the least was not the a for reasons, of multiplicity andsegregation racial discrimination. justice. justice. Hypotheses in Search of Reality Reform Justice Criminal of Limits eroded barriers to full civic participation, poverty in U.S. cities disproportionately disproportionately cities in U.S. poverty participation, civic full to barriers eroded with worsened that a situation minorities, ethnic and racial of members affected closed bases, tax eroded houses, effects—vacant attendant its and flight” “White problems. of other in a host increase an and businesses, high unemployment, C Y 43400 lcb 25-2 Sheet No. 13 Side A 07/02/2021 10:34:26 A 07/02/2021 13 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 13 Side B 07/02/2021 10:34:26

. M K J. M 50 50 C Y , A see also see Gender, Gender, Worse Breaking Breaking L.J. 457, 457, L.J.

. ERKELEY ERKELEY In short, Street Stops RB U , 19 B , 19

And as the string of of And as the string ORDHAM ORDHAM , Angela P. Harris, Harris, P. Angela , , 28 F Q. 255, 266 (2010) (reporting (reporting (2010) 266 Q. 255,

. . (Feb. 26, 2018), https:// . (Feb. 2018), 26, https:// UST NST I . 159, 175 (2015) (“The fact that racial racial that fact (“The (2015) 175 . 159, see also, e.g. also, see Y ’ , 27 J . 777, 797–98 (2000) (discussing how the the how (discussing (2000) 797–98 . 777, EV Why Police (andCommunities) Need ‘Broken OL R EV

P R L.

. . L.

. HI C . 751, 775 (2014) (reporting that widespread use of use widespread that (reporting (2014) . 751, 775 CON

E TAN American Police Must Own Their Racial Injustices Racial Their Own Must Police American

TUD , S note 37, at 2–3; 2–3; 37, at note Procedural Justice and Order Maintenance Policing: A Study of of A Study Policing: Maintenance Order and Justice Procedural , 82 U. , 52 S , 52 note 12,82–87; at Jeffrey Fagan & GarthDavies, forcement” in communities of color “ismulti-genera- color of inforcement” communities EGAL

supra L supra , , Race, and Disorder in New York City York New in Disorder and , Race, Programming Errors: Understanding the Constitutionality of Stop-and- sproportionately encounter police in sproportionately police encounter both constitutional and 50-years-after-the-kerner-commission/. . (Aug. 11, 2015), http://thecrimereport.org/2015/08/11/2015-08-why- Terry MPIRICAL MPIRICAL EP RADELLA E R

notes 20–23. 20–23. notes & RIME RIME , 11 J.

HITE HITE (July 18, 2018), https://prospect.org/civil-rights/american-police-must-racial- 2018), (July 18, , C Such actions degraded race relations in many urban areas race in while Such actions many relations simultane- degraded urban Samuel Kuhn & Stephen Lurie, Lurie, Stephen & Kuhn Samuel et al., Jones Janelle see inequalities, racial contemporary on points data of range a For See supra Tracey Meares, L. Williams & Murphy, W Street Stops and Police Legitimacy: Teachable Moments in Young Urban Men’s Legal L. 112, 127 (2014); Michael D. White et al., al., et White D. Michael (2014); 127 112, L.

The historical and ongoing undercurrent of racial injustice in U.S. policing policing U.S. in injustice racial of undercurrent ongoing and historical The The disjuncture between law enforcement and communities of color worsened worsened of color communities and law enforcement between The disjuncture . 49 50 51 48 46 47 RIM ROSPECT “us-versus-them” mentality contributes racism). to Windows’ and Broken Windows: Windows: Broken and Frisk a Program, as Not an Incident injustices/. Violence, Race, and Criminal Justice Criminal and Race, Violence, continues to produce disparate outcomes for people of color. people for outcomes disparate to produce continues the “deepthe distrusten of law well-founded.” and tional through the 1990s and 2000s when police adopted aggressive tactics and strate- and tactics aggressive adopted police when 2000s and 1990s through the of people targeted offenses—that drug and at quality-of-life aimed gies—often color. police killings of unarmed men and women of color painfully illustrate, street en- illustrate, street painfully of color women and men unarmed of police killings far frequently. too turn deadly color and people of police counters between

www.epi.org/publication/ police-and-communities-need-broken-windows/. P C street stops as part of aggressive OMP undermined police legitimacy). 414 414 policing of view” “minority the exacerbate to served only which mentality, them” 1990. in explained Murphy and Patrick Williams that Hubert REVIEW LAW & CLARK LEWIS 25.2 [Vol. LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM ously eroding police legitimacy in the eyes of Black and Hispanic people. Hispanic and of Black eyes in the legitimacy police eroding ously that people of color “felt that their neighborhoods had been besieged by police”); Tom R. Tyler Tyler R. Tom by police”); besieged been had neighborhoods their that “felt color of people that et al., Socialization yet, there often do not appear to be any acceptable reasons for such tragic outcomes: outcomes: tragic such for reasons acceptable any be to appear not do often yet, there Jacinta M. Gau & Rod K. Brunson, Legitimacy Police of Men’s Perceptions Young Inner-City Are Still But Ways, Many in Off Better Are Americans African Commission: Kerner the After Years Disadvantaged by Racial Inequality 464–72 (2000) (tracing how Broken Windows Theory led to the development of order- of development the to led Theory Windows Broken how (tracing (2000) 464–72 maintenance policing (OMP) that ultimately that in aggressive efforts morphed interdiction Ingram, Andrew crime); and disorder between connection” “subtle theory’s the exceeded Policing Maintenance Order on Take Revisionist A Windows: Broken Fix to Laws minorities cities in di unconstitutional illegitimacy police.”); the the of of fuels contexts [their] perceptions 43400 lcb 25-2 Sheet No. 13 Side B 07/02/2021 10:34:26 B 07/02/2021 13 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 14 Side A 07/02/2021 10:34:26

. . CI EV S

IMES IMES R .

. T

OC NN S

, 100 B.U. 100 , & , N.Y.

. , 57 A , 57 OL P

. 3–5 (1990); Jason Jason (1990); 3–5 CAD AW L A

. M A BEY THE O NNALS The PowerApology of and the Process of

The President’s Task Force on 21st on 21st Force Task The President’s EOPLE , 687 A P HY HY Race and Reasonableness in Police Killings Summer 2001, at 9, 11 (exploring the values of values the (exploring 11 9, at 2001, Summer , W

, Reconciling Police and Communities with Apologies, law enforcement must accept responsibility and and responsibility accept must law enforcement YLER The value of legitimacy for police lies in how it it how in lies police for legitimacy of value The T

R. . 513, 514 (2003). ISTORIAN Robert Weyeneth, R. H EV

OM . R note 49. Y Official Apologizes for Police Role in Mistrust by Minorities The Role of Procedural Justice and Legitimacy in Shaping Public Support ’ UB T OC , P Psychological Perspectives on Legitimacy and Legitimation supra S

& see also See generally AW , 37 L , 37 at 376; 376; at at 211. 211. at . 375, 375 (2006). (2006). 375 . 375, Acknowledging the harm of past actions and apologizing for them can help help can them for apologizing and actions past of harm the Acknowledging Id. Lurie, & Kuhn Tyler, R. Tom Id. Jeffrey Fagan & Alexis D. Campbell, Timothy Williams, ThomasO’Brien C. al., et . 951, 951 (2020). Following the lead of International Association of Chiefs of Police former pres- former Police of Chiefs of Association International of lead the Following Tom Tyler defined legitimacy as “a psychological property of an authority, in- authority, an of property psychological “a as legitimacy defined Tyler Tom 55 56 57 58 52 53 54 EV R M K

SYCHOL Historical Reconciliation Historical Century Policing noted: “Building trust and nurturing legitimacy on both sides of sides both on legitimacy nurturing and trust “Building noted: Policing Century Sunshine & Tom R. Tyler, Policing for apologize for their past and ongoing actions that contribute to racial injustice. to racial contribute that actions ongoing and past for their apologize apologies for past harms). 202, 202 (2020). build trust and cooperation, which can lead to “mutual respect that enables sustain- that enables respect to “mutual can lead which cooperation, trust and build practices.” safety public to improvement able C. C. for Procedural Achieving LegitimacyandMechanism Adopt Justice Embrace as a Doing so is the first and in step officers their reconciliation. Although unions may rea- historical for or a few, of actions the “for blame accept apologies such that feel lead- enforcement law stop not should that responsible,” are not they which for sons communities and agencies their serve ultimately can that steps taking ers from alike. ident Terrence M. Cunningham, M. Terrence ident P L. https://www.nytimes.com/2016/10/18/us/official-apologizes-for-police-role-in- 2016), (Oct. 17, mistrust-by-minorities.html. 2021] POLICE ACCOUNTABILITY ACCOUNTABILITY 415 POLICE 2021] persons are than police by killed be to likely as twice than more are suspects “Black circumstances obvious other no are there when even groups; ethnic or racial of other reasonable.” force deadly of use the make would that encounter during the LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM

shapes citizens’ attitudes and behavior. Tyler argued that legitimacy generates self- generates legitimacy that argued Tyler behavior. and attitudes citizens’ shapes be- police the obey and law the follow people as authority, to deference regulated do. thing to the right is it believe they cause Acknowledgements, or Both: A Controlled Experiment It is it that believe to it to those connected that leads arrangement stitution, or social just.” and proper, appropriate, C Y 43400 lcb 25-2 Sheet No. 14 Side A 07/02/2021 10:34:26 A 07/02/2021 14 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 14 Side B 07/02/2021 10:34:26

, M K &

. C Y Pro- UBLIC Pro- Prior P USTL and several several and Each officer A , 40 33, 51 (2013); (2013); 33, 51 NCOURAGING . 624, 625–29 (2017); (2017); 625–29 . 624, E

: UST RIMINOLOGY Youth, Police Legitimacy and J

Shaping Citizen Perceptions of AW . note 58, at 534–35. L

RIM , 51 C supra C

ity to enhance police legitimacy police legitimacy ity to enhance & L. 231, 256 (2008). (2008). 256 231, L.

. Research has alsothat documented RIM principle underlying the nature of rela- of nature the underlying principle ority (reporting crimes, providing infor- providing crimes, (reporting ority C

RUST IN THE which the community trusts that officers officers that trusts community the which . 10, 19 (2009); Lyn Hinds & Kristina Murphy, Murphy, Kristina & Hinds Lyn (2009); 19 . 10, J.

(2002); Lyn Hinds, Hinds, Lyn (2002); . T , T viewed as procedurally unjust. procedurally as viewed RIMINOLOGY S UO Mediationin Small ClaimsCourt: Achieving Compliance SYCHOL OURTS H HIO HIO P . 11, 16 (1984). (1984). 16 . 11,

Legitimacy and Cooperation: Why Do People Help the Police C

. , 17 C J. EV . 167, 173 (2008) (noting that when the Iraqi government government Iraqi the that when (noting (2008) 173 . 167, note 14, at 10. note 14, at 1. R RIM , 6 O , 6 Prior research has identified four key components of four key components identified has research Prior Y Promoting Police Legitimacy Among Disengaged Minority Groups: C ’

note 58, at 514. 514. at 58, note 513. at 58, note UEN & supra supra Support for Resistance Among Iraqi Students: An Exploratory Study Exploratory An Students: Iraqi Among Resistance for Support OC Y note 61, at 35. , , S SYCHOL

OLICE AND P supra supra

& & P . note 60, at 27; Lorraine Mazerolle et al., et al., Mazerolle Lorraine 27; at 60, note supra OLICE OC P EPORT EPORT AW

27, 29–30 (2007); Sunshine & Tyler, Tyler, & Sunshine (2007); 27, 29–30 S R R YLER supra T

, 18 L , 24 J. , 24 ORCE ORCE ORCE ORCE R. PPLIED PPLIED The President’s Task Force on 21st Century Policing concluded that that concluded Policing Century on 21st Force Task The President’s F F A

& ASK ASK OM RIMINOLOGY Sunshine & Tyler, Mazerolle et al., Sunshine & Tyler, TomTyler R. Jeffrey & Fagan, T Ronald Fischer al., et T T Natasha S. Madon et al., C

Procedural justice is an established mechanism for achieving legitimacy. achieving for mechanism established an is justice Procedural J. ASIC

62 63 64 65 66 67 59 60 61 OOPERATION WITH THE Informal Contact procedural justice leads “to relationships in relationships “to leads justice procedural lawful.” and benevolent, unbiased, are honest, 30 B Does Procedural Justice Matter More? Matter Justice Procedural Does Hinds & Murphy, Police Legitimacy: A Randomized Field Trial of Procedural Justice Fight Crime inTheir Communities? interaction with a citizen represents an opportun ana citizen represents interaction with through the officer’s procedurally just treatment of the citizen. Conversely, proce- Conversely, the citizen. of treatment just procedurally officer’s through the durally actionsunjust by an officer, and failure a department’s to officers ac-hold police. in the trust a community’s undermine can actions, for those countable research has consistently connected enhanced police legitimacy to important out- important to legitimacy police enhanced connected consistently research has during commands police with citizen compliance most notably the police, comes for auth police with cooperation an encounter, law. to the obedience and etc.), crimes, about mation legitimacy is weakened when police are are police when is weakened legitimacy cedural justice refers to the way in which police treat citizens and the fairness of in the justice which citizens treat referspolice to the way cedural make. police that decisions C Public Satisfaction with Police: Using Procedural Justice to Improve Police Legitimacy N.Z. studies have noted that the relationship persists even in encounters with negative negative with encounters in even persists relationship the that noted have studies outcomes. 416 416 foundational the is divide police/citizen the serve.” they communities and the agencies enforcement law tions between REVIEW LAW & CLARK LEWIS 25.2 [Vol. LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM

cedural justice is a key ingredient for generating police legitimacy, police generating for ingredient a key is justice cedural procedural justice: citizen participation (being given the opportunity to state one’s one’s state to opportunity the participationgiven (being citizen justice: procedural case), fairness dignityand and neutrality, respect, andmotives. trustworthy Craig A. McEwen & Richard Maiman, J. Consent Through was perceived as illegitimate, support for Iraqi resistance fighters among Iraqi students increased). 43400 lcb 25-2 Sheet No. 14 Side B 07/02/2021 10:34:26 B 07/02/2021 14 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 15 Side A 07/02/2021 10:34:26

- & NTI 6–7 6–7 OLICE OLICE A P S ’ ITY C Rotten Apples, Apples, Rotten RIMINOLOGY NDERSTANDING ORRUPTION U (May 30, 2020),

THE C : ORLD OF . 28, 28–29 (1999); (1999); 28–29 . 28, , 8 C & LL W A OLICE P EW SYCHOL ROOKINGS N P

. , B ORRUPTION ORRUPTION HE Walker and Archbold outline RIM C USTICE FOR T J C

note 2, at iv.

but past experience and research research and past experience but EPORT ON , & R ND 6, 6–7 (2012). (2012). 6, 6–7 OLICE A Police Misconduct and Crime: Bad Apples or or Apples Bad Crime: and Misconduct Police In their investigation of police mis- supra P

, in T ’ , OLICE P EP

RCHBOLD A The Sociopathic Police Personality: Is It a Product of ONTROL 277, 279,282 (William A. Geller & Hans Toch D C OMMISSION

note 24, at 23; Sanja Kutnjak Ivković, C A. , 14 , 14 J. Improving Our Understanding and Control of Police Abuse ORCE OLICE F P note 24, at 23. 23. at 24, note

supra LLEGATIONS OF NAPP NAPP , A ]. K AROL L.A. C supra supra AUNDERING AUNDERING HE ,

BUSE OF L 2014). A & EPORT

, T R RCHBOLD A ONEY ONEY

N ON THE Police accountability efforts should focus on organizational organizational on focus should efforts accountability Police ’ NVESTIGATE OLICE M &

NAPP (2d ed. I RCHBOLD

P ALKER A

The opening foreword from the Christopher Commission high- Christopher from the forewordopening The 21 W OMM & ROCEDURES Bad Apples Come from Rotten Trees in Policing in Trees Rotten from Come Apples Bad N TO , 15 J. , 15 C ALKER ’

P Catherine Griffin & Jim Ruiz, . cf. 777, 780 (2009); Petter Gottschalk et al., al., et Gottschalk Petter (2009); 780 777, ; ALKER Y OMM ’ AMUEL NDEP William A. Geller & Hans Toch, I S W Id. C ONTROLLING OL Departments often rely on the “rotten apples” explanation for police excessive excessive police for explanation apples” “rotten the on rely often Departments The rotten-apple justification allowsa department to confine misconduct to According to this theory, which bordered on official Department doctrine, any policeman found to be corrupt must promptly be denounced as a rotten individ- his must admitted never be that It barrel. clean an otherwise apple in . The rotten- ual corruption. may be symptomatic. of underlying disease. re- to meaningful obstacle ways been a basic in has many doctrine apple examined and rejected . The Commission premisesthe which . upon . form. rested. doctrine rotten-apple the P C

71 72 73 68 69 70 . M K ORRUPTION CCOUNTABILITY UB in-policing/. in-policing/. (1972) [hereinafter K [hereinafter (1972) show that this justification is not sufficient. is show that justification this C of Force: Recommendations for Research and Action and Research for Recommendations Force: of the “RottenApple” “Rotten or theBarrel?” Rashawn Ray, Misconduct Police of Tale A Cautionary Orchards: Rotten and Branches, Rotten

https://www.brookings.edu/blog/how-we-rise/2020/05/30/bad-apples-come-from-rotten-trees- W 1995); eds., P A 2021] POLICE ACCOUNTABILITY ACCOUNTABILITY 417 POLICE 2021] D. Change on Organizational Focus actions the by explained be can police of the misdeeds that posits which force, of use apples), rotten (the officers of one few or a rogue LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM problems, underlying real the avoid effectively and officers problematic few just a organiza- permissive and practices management inadequate involve typically which culture. tional conduct in the New York Police Department (NYPD), the Knapp Commission Knapp Commission the (NYPD), Department York Police New the in conduct explanation: the rotten-apple rejected soundly AND change, not changing individual officer Walker Samuel and Arch- behavior. Carol policies changing than single rather organizations, police “[c]hanging that note bold Civil the by practice’ or ‘pattern of focus the is officers, individual or prosecuting Justice.” of Department the U.S. of Rights Division Systems Failure? Systems lights this point. lights this C Y 43400 lcb 25-2 Sheet No. 15 Side A 07/02/2021 10:34:26 A 07/02/2021 15 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 15 Side B 07/02/2021 10:34:26

L M K A ’ C Y AT VENTS , N E REATING C

: ENTINEL S ANKS

: R Under Charles Ram- Charles Under UR O USTICE A learning organization J A Sheriffs Office as a Learning Learning a as Office A Sheriffs ITHIN ITHIN W We advocate for many of these of these for many We advocate ENDING M

: ORRUPTION EPORT R C note 24, at 66–240. 66–240. at 24, note PECIAL S , introspective, and proactive. and , introspective,

2 (2010), http://www.phillypolice.com/assets/docs/PPD. http://www.phillypolice.com/assets/docs/PPD. 2 (2010), , REVENTING supra supra P ,

, T ’ USTICE J NIJ’s Sentinel Events Initiative: LookingBack to Look Forward EP Q. 351, 351–53 (2009). (2009). 351–53 Q. 351, John P. Crank & Andrew John P. Giacomazzi, D The goal of the sentinel events process is to understand the errors errors the understand to is process events sentinel the of The goal RCHBOLD OF RGANIZATION . A

OLICE O see also & OLICE NST I P

Mar. 2014,10, at 11. . L , 12 P , 12 ’ J.,

at 26; RIVEN . ALKER Insteadof a plane or crash patient death, theorganizational accidentin AT HILA 1 (2014), https://www.ncjrs.gov/pdffiles1/nij/247141.pdf. https://www.ncjrs.gov/pdffiles1/nij/247141.pdf. 1 (2014), W Id. P Doyle, M. James Id. N -D Sentinel events review is reflective of an overall emphasis on organizational organizational on emphasis overall an of reflective is review events Sentinel UST J In order to facilitate organizational change, departments must become learning learning become must departments change, organizational facilitate to In order Sentinel events review is one mechanism for becoming a learning organiza- learning a becoming for mechanism one is review events Sentinel

. 74 75 76 77 78 79 ALUES EVIEWS NST organizations that are strategic that organizations sey, former Commissioner of the Philadelphia Police Department and Co-Chair of of Co-Chair and Department Police the Philadelphia of Commissioner sey, former De- Police the Philadelphia Policing, Century 21st on Force Task the President’s Preventing.CorruptionFINAL.8.5.10.pdf. Preventing.CorruptionFINAL.8.5.10.pdf. same systems below. E. Organization Become a Learning deficiencies to identify in introspection engages and continually change embraces modification. that require tion. A sentinel force. of use excessive an or shooting officer-involved an be could policing like policing systemaeventof“rarelyin one is result complex individual’s the mis- sys- by underlying are exacerbated and combine errors small multiple Rather, take. tem weaknesses.” V I R 418 418 the features key an of including organizational focus on accountability, critical inci- sys- early intervention an complaint system, accessible and open an dent reporting, auditor. an through oversight external and tem, REVIEW LAW & CLARK LEWIS 25.2 [Vol. LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM

learning through introspection. Adapted from the aviation and medical fields, sen- medical and aviation the from Adapted introspection. through learning singular to negative mindset accident organizational an applies review events tinel events. partment stated that “a learning organization is one that has a shared vision and and vision shared a has that one is organization learning “a that stated partment mission, the means has and willingnesslearn to from the experiences of its members, seekspractices outmakes best andas changes required.” or weaknesses that led to the event, allowing for similar events to be avoided in the in the avoided to be events similar for allowing event, to the led that or weaknesses Organization 43400 lcb 25-2 Sheet No. 15 Side B 07/02/2021 10:34:26 B 07/02/2021 15 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 16 Side A 07/02/2021 10:34:26

, EDIA M

. UB

. RIZ For the public For the public A

, . 373, 425–26 (2010). (2010). 425–26 . 373, EV R

. The auditor can issue public reports on on reports public issue can auditor The ATH , 59 C , 59 note 24, at 213–40. 213–40. at 24, note note 79, at 3, 3. 3. 3, at 79, note supra supra New Governance and the “New Paradigm” of Police Accountability: Accountability: Police of Paradigm” “New the and Governance New , TPD Forms Board to Review ‘Critical’ Incidents ‘Critical’ Review to Board Forms TPD supra supra

, The auditor can conduct organization-level investigations Learningfrom Error in the Criminal Justice System: Event Sentinel Reviews RCHBOLD note 80, at 16. 16. at 80, note A USTICE

J & supra supra OF . at 215–19. 215–19. at NST ALKER In July 2020, the Tucson Police Department created a sentinel events re- events sentinel a created Department Police Tucson the 2020, In July I James Doyle states: James M. Doyle, Doyle, M. James L Christopher Conover, Doyle, Kami Chavis Simmons, W Id. ’ Working steadily on organizational erroranalysis creates an increased system system. justice criminal the staff who practitioners the among consciousness an im- be can creates practice this that accountability The forward-looking pro- justice a new criminal of indispensable—element arguably portant—and police better make will example, for lieutenants, police Today’s fessionalism. captains next year thanks to their participation in the rigorous organizational stakehold- system’s the All of near miss. or error a known of analysis accident ers will gain a better understanding of their individual responsibility for the system’s collective outcomes from working on all-stakeholder reviews. Effective police accountability should be publicly transparent. publicly should be accountability police Effective Departments can achieve transparency through a variety of methods. Walker Walker methods. of a variety through transparency achieve can Departments AT 80 81 82 83 84 85 M K N A Democratic Approach to Police Reform view board to review and understand the events leading to a recent death-in-cus- a recent to leading events the understand and review to board view tody. in Sentinel events review is reflective of an overall emphasis on organizational learning learning on organizational emphasis overall of an is reflective events review Sentinel through introspection. F. Be Transparent to fairly judge their local law enforcement’s adherence to constitutional principles principles constitutional to adherence enforcement’s law local their to fairly judge policies enforcement’s law about informed adequately be to need they practices, and mecha- accountability internal best the all have could A department practices. and respon- be not may it transparent, and accessible publicly being without nisms, but heavily must rely accountability effective Therefore, concerns. community sive to make to it needs information the the public gives that approach on a transparent actions. their and departments police its about judgments informed and fair (July 7, https://news.azpm.org/p/news-splash/2020/7/7/176097-tpd-forms-board-to- 2020), review-critical-incidents/. 2021] POLICE ACCOUNTABILITY ACCOUNTABILITY 419 POLICE 2021] future. LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM

into critical agency policies and practices, from use of force and first-line supervision supervision first-line and force of use from practices, and policies agency critical into complaints. citizen of to investigation and Archbold highlight the importance of external citizen oversight, preferably preferably oversight, citizen external importance of the highlight Archbold and through an auditor. C Y 43400 lcb 25-2 Sheet No. 16 Side A 07/02/2021 10:34:26 A 07/02/2021 16 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 16 Side B 07/02/2021 10:34:26

, M K T ’ AW C Y EP L D Use of Use of FFICER Also, Also, O

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, https://www.phillypolice.com/ois (last , https://www.phillypolice.com/ois & T ’ U.S. 19 (2014), https://bja.ojp.gov/sites/g/files/ 19 https://bja.ojp.gov/sites/g/files/ (2014),

, EP USTICE J D HITE have begun topublicly release use offorce W

T OF OLICE VIDENCE ’ RIMINOLOGY P Investigating Racial ProfilingMiami-Dade by the Police E

D. EP . D note 24, at 25. 25. at 24, note , 6 C

of The use of recording on force events BWCs rep- HILA (July 27, 2020),https://www.fbi.gov/news/pressrel/press- ICHAEL ICHAEL , P U.S. supra supra , https://www.policedatainitiative.org/datasets/use-of-force/ (last At a minimum, an agency should collect, analyze, and and analyze, collect, should agency an At a minimum, ,

, 2016, at 3 (2018), https://nccpsafety.org/assets/files/library/

, SSESSING THE A

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, D C e.g. Without data collection and the subsequent analyses, positive change at at change positive analyses, subsequent the and collection data Without

at 214. 214. at FBI Releases2019 Participation Data for the National Use-of-Force Data Collection ; ALKER HELLEY ORN UREAU OLICE Officer Involved Shootings Involved Officer Id. See, W Id. S Board of Police Commissioners Critical Incident Video Release Policy B -W Adoption of many of the principles above hinges on the creation of robust data data of robust creation on the hinges above principles of the of many Adoption , P

89 90 91 92 86 87 88 . ODY NFORCEMENT NFORCEMENT ED Department releases footage of officer-involved shootings within 45 days. 45 within shootings officer-involved of footage releases Department (Feb. 20, 2018), http://www.lapdonline.org/home/news_view/63555. http://www.lapdonline.org/home/news_view/63555. 2018), 20, (Feb. releases/fbi-releases-2019-participation-data-for-the-national-use-of-force-data-collection; bwclea16.pdf (stating that about 80% of agencies listed “reduce/resolve civilian complaints” as a reason for acquiring BWCs); M 2021). 26, May visited G. Become Data-Driven Data-Driven Become G. ments have adopted body-worn cameras to demonstrate trans- in (BWCs) an body-worn effort ments have adopted communities. their parency to E B xyckuh186/files/bwc/pdfs/diagnosticcenter_policeofficerbody-worncameras.pdf. release data on use of force including by overall prevalence, by type of force used, used, force of by type prevalence, overall by including force on use of data release law- force investigations, Complaints, and ethnicity. race by citizen and by officer, suits involving useofforce, and whatHickman and colleagues refer toas the“force im- other resistance—are citizen force and of of use measure factor”—a reciprocal on available publicly made and examined, captured, be should that metrics portant 420 420 change. for recommendations include that practices those REVIEW LAW & CLARK LEWIS 25.2 [Vol. LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM both the organizational and individual officer levels would be impossible. Account- impossible. be would levels officer individual and organizational both the effectively cannot today management “[t]op simply, Put data. good requires ability traffic arrests, crimes, stops, on reported data systematic without department run a on.” so and of force, uses some departments, like Philadelphia’s, like departments, some visited May 26,2021). Approach Multimethod A Department: resents an additional opportunity to show transparency to the community, or to fail fail to or community, the to transparency show to opportunity additional an resents release public the for procedures formal established have departments Some so. to do Police Angeles Los the example, For time. of period a set within footage of BWC data as a show of transparency, either individually on department websites or as part part as or websites department on individually either transparency, of a show as data effort. collection data national Investigation’s of Bureau Federal of the F Force systems. 43400 lcb 25-2 Sheet No. 16 Side B 07/02/2021 10:34:26 B 07/02/2021 16 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 17 Side A 07/02/2021 10:34:26

See, See, NLINE , NPR , NPR O

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EO ’ L. have paid far more far more have paid

. OLICING ICH P IVISION G , 106 D , 110 M , 110 IGHTS IGHTS . 545, 566 (2017); Jeffrey Fagan Fagan Jeffrey 566 (2017); . 545, ROACTIVE R P EV

R ., that legal scholars scholars legal that

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HE 25 (2017), https://www.justice.gov/crt/file/ 25https://www.justice.gov/crt/file/ (2017), From a financial standpoint, we know From astandpoint, we know financial , & M , & , T d strategies that not only have broad unintended RESENT , 85 UMKC USTICE J The Problem of Policing NGINEERING T OF Reliability of the Force Factor Method in Police Use-of-Force ’ 1994–P E

: EP ., D

CIS ORK S

. W U.S.

5 (David Weisburd & Malay K. Majmundar eds., 2018). ., Predatory Policing Predatory From Page to Practice and Back Again: Broken Windows Policing and the CAD IV A Studies Show ‘Proactive Policing’ Works, but Social Cost Less Clear D L ’ Q. 368, 373 (2015). 373 (2015). Q. 368, EFORM The collection, analysis, and dissemination ofdata is and to dissemination analysis, central The collection, R AT IGHTS IGHTS , N New Policing, New Segregation: From Ferguson to New York OLICE OMMUNITIES R C e.g. OLICE The number of officers who have had more than one instance of of instance one than more had have who officers of The number and law; or the policy agency to violate found force po- during injured are public of the or members officers often How lice encounters. The number of civilian complaints regarding use of force and how force and how use of regarding complaints civilian of The number or substantiated; are sustained complaints those often How often force reviews reveal that a use of force violated agency agency reveal that reviews violated force force a use of How often policy or the law; The rate of use of force—overall, by type of encounter (i.e., street street (i.e., encounter of type by force—overall, use of of The rate stop, traffic stop, arrest, call service); for by type of force; by location; age; and gender, ethnicity, race, by subject’s and

IVIL IVIL , 18 P See, Martin Kaste, Matthew J. Hickman et J. Hickman al.,Matthew C Id. x x x x x Empirical research on strategies often focuses on their effects on crime rates, on crime effects their focuses on on strategies often Empirical research In agreements addressing use of force, the Division typically tracks data such such data tracks typically Division the force, of use addressing agreements In 96 97 93 94 95 , Devon W. Carbado, , Devon M K RIME AND RACTICE e.g. proactive-policing-works-but-social-cost-less-clear. note We attention to the social costs of policing tactics an effects on society at large, but also disproportionate negative impact on communities of color. color. of impact on communities negative but also disproportionate large, at society effects on 922421/download. 922421/download. 33, 34–36 (2017); Rachel A. Harmon, Harmon, A. Rachel (2017); 34–36 33, (Nov. 9, 2017, 11:00 AM), https://www.npr.org/2017/11/09/562876139/studies-show- Research but typically ignores their associated costs. associated their ignores but typically H. H. Policing of Cost Social the for Account C P 2021] POLICE ACCOUNTABILITY ACCOUNTABILITY 421 POLICE 2021] basis.a regular LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM

& Elliott Ash, Ash, & Elliott Oftentimes, the Civil Rights Division consent decree will also require the collection collection the require also will decree consent Division Rights Civil the Oftentimes, assess the to monitor independent the for sufficient data “qualitative of analysis and and investigation a department’s of quality the or force of uses of reasonableness of force.” instances of review (2012); K. Babe Howell, Howell, Babe K. (2012); reforms imposed through the U.S. Department of Justice Civil Rights Division’s Division’s Rights Civil Justice of Department U.S. the through imposed reforms notes: Division Rights Civil The litigation. practice” or “pattern as: C Y 43400 lcb 25-2 Sheet No. 17 Side A 07/02/2021 10:34:26 A 07/02/2021 17 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 17 Side B 07/02/2021 10:34:26

. , M K – EV OF C Y . R

L. NST

ENEFIT . I B 439, 445 445 439, . 857, 857 857 . 857,

EX ERA ERA EV Police Science: R

, 8 J. . , V HANGE , 99 T , 99 OC C

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. INALDI M OC Jan. 2011, at 1, 3, 3, 1, at 2011, Jan. S R

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, 81 , 81 A (2014), https://www.vera.org/ https://www.vera.org/ (2014), L.

. OSHUA 2 J Even when the benefits and and when the benefits Even

EV OLICING R &

P OOLKIT T lice violence, or the emotional and Policing’s Information Problem OLICY ENRICHSON , 34 N.Y.U. , 34 P H David Weisburd & Peter Neyroud, Neyroud, Peter & Weisburd David ERSPECTIVES IN USTICE P J We Spend$100 Billion on Policing. We Have No Idea What HRISTIAN HRISTIAN

see also Q. 103, 115 (2014).

supra supra , : 539, 551 (2004). (2004). 551 539, HITE , FBI OLITICIANS OLITICIANS W

OLICE P The final form of training, called “in-service,” can be used to refresh refresh to used can be “in-service,” called training, of form final The USTICE & at 29–30; Brad W. Smith, J proper training will reduce problematic officer officer behavior. problematic training reduce will proper OLICING

P Relevant personal attributes would include good judgment, empathy, pa- judgment, empathy, good include would attributes personal Relevant Bittner, OLICING at 104–05; , 17 P , 17 ANE T OF ’ David Eitle et al., et al., Eitle David Hundersmarck, Steven id. See Police-Mental Health Collaboration (PMHC) Toolkit:In-Service Roll-Call and Training K Id. See et al., Hilal Susan EP In addition to the traditional components that focus on law and tactics, train- tactics, and law on focus that components traditional the to addition In Careful recruitmentand selection mustbe followed by effective training. In , 27 P D 118 119 120 121 114 115 116 117

M K TREETCORNER TREETCORNER Recommendations, and Police Departments’ Recruitment Decisions reprinted in reprinted U.S. tience, an even temperament, respect and appreciation for diversity, creativity and and creativity diversity, for appreciation and respect temperament, even an tience, problem-solving skills,ability the think to one’s onfeet and handle pressure, and effective leadership skills. emy, the goal of training is to provide officers with the basic skills and knowledge and knowledge skillsthe basic withofficers provide is to training of the goal emy, offic- academy, the from graduation officer. Following police a become necessary to training. field of a period for officer veteran a to assigned are typically ers these characteristics of “good craftsmanship” and they are still relevant today. relevant still are they and craftsmanship” “good of characteristics these 508, 509 (2017); Taiping Ho, Ho, Taiping 509 (2017); 508, Maanen eds., 1978). 1978). eds., Maanen Applicants’ personal characteristics can be assessed through standardized personality for probe that interviews reference-check in service, community tests, participation at- personal applicants’ explore that interviews in-person and characteristics, such tributes.

Police Misconduct Training Field and S 2021] POLICE ACCOUNTABILITY ACCOUNTABILITY 425 POLICE 2021] be- better them making of effect the have may organizations police in presence haved.” LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM ing should emphasize the non-criminal aspects of the mission, including homeless- including mission, aspects the of the non-criminal emphasize ing should plain terms, terms, plain a formative stage of a police officer’s career, and it is critically important for field field for important critically is it and career, officer’s police a of stage a formative the or- of the values and policing of good principles the to impart officers training ganization. B. Effective Training B. Effective 2021). 2021). officers on ethical issues, proper tactics, and to reinforce organizational values. organizational reinforce to and tactics, proper issues, on ethical officers C Y 43400 lcb 25-2 Sheet No. 19 Side A 07/02/2021 10:34:26 A 07/02/2021 19 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 19 Side B 07/02/2021 10:34:26

: M K LL C Y , 19 A L. 414, 414, L.

& and de- and note 28,95– at USTICE FOR

J SYCHIATRY SYCHIATRY supra ND P

, . A note 71, at 163, 167, 169, 169, 167, 163, 71, at note

in CAD , A

. supra M

, A

procedural justice, procedural CCOUNTABLE A ORCE F , 47 J. , 47 338, 338 (2000); Michael S. Rogers et al.,

OLICE L.

requires 664 hours, Florida 770 hours, and P & BUSE OF Police Response to Mental Health Emergencies—

. 9815, 9815 (2020). (2020). 9815 . 9815, CI Id. OLDING S

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, . A L ’ CAD AT A 805, 806 (2020). (2020). 806 805, Procedural Justice Training Reduces Police Use of Force and Complaints Complaints and Force of Use Police Reduces Training Justice Procedural

. Y N ’

. States RequireMore Training Time to Become Barber than a a Police M Randomized Controlled Trial of Social Interaction Police Training ONTROLLING ONTROLLING understanding OL A Training to Reduce Police-Civilian Violence Police-Civilian Reduce to Training Can Police Training Affect the Use of Force on the Streets?: The Metro-Dade Metro-Dade The Streets?: the on Force of Use the Affect Training Police Can

C P

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& Training, especially in the academy, should be expanded considerably considerably be expanded should academy, in the especially Training, , 117 P , 117 , Holly Yan, at 163–64. 163–64. at He goes on to say: say: on to He goes E.g. J. Fyfe, James Id. Randolph Dupont & Sam Cochran, George Wood et al., Klinger, David , CNN (Sept. 28, 2016, 4:03 PM), https://www.cnn.com/2016/09/28/us/jobs-training- PM), 4:03 2016, 28, (Sept. , CNN The development of successful boxers, diplomats, combat soldiers, and trial and trial soldiers, combat diplomats, successful boxers, of The development and con- stressful under one’s temper maintaining that demonstrates lawyers po- level, broadest the At be taught. can that a skill is conditions frontational lice training designed to do so may involve providing students with what Muir calls (1977) matter how bizarre or provocative, may usually be explained by factors that that factors by be explained usually may provocative, or bizarre how matter go beyond the dichotomy of good and evil. . . . genuine if Even individuals who bring extremely narrow views to policing, officers can be made to know in training that they simply will not be permitted to act out conduct. even discourteous, or violent, prejudices through their In his review of how police training can be structured to reduce violence be- violence to reduce structured can be training police In his how review of 125 126 127 122 123 124 NDERSTANDING AND RIMINOLOGY escalation. 173–74. 173–74. to cover the non-crime-related aspects of the job. The number of training academy academy training of number The job. the of aspects non-crime-related the to cover most though state, by considerably varies officer police a become to required hours hours. 1,000 and 500 between require Effectiveness of Police Crisis Intervention Training Programs Against Officers Against Officer police-trnd/index.html (reporting that California Massachusetts 900below are well Notably, police the of hours training). requirements these required training hours for other professions,barber such as a (1,528 hours in North Carolina) or cosmetologist (1,600 hours in California). U Violence Reduction Field Experiment 426 426 effec- the highlighted has research Recent illness. mental and abuse, substance ness, (CIT), intervention crisis in training of tiveness REVIEW LAW & CLARK LEWIS 25.2 [Vol. LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM

96; Kyle McLean et al., 418 (2019). (2019). 418 tween police and citizens, Fyfe presented a number of key recommendations: effec- recommendations: of key a number presented Fyfe and citizens, police tween com- and officers’ the to tailored be should training realistic; be must training tive should training of adequacy the and be continuous; must training munity’s needs; out- incident than rather officers’of conduct examination through be assessed comes. Barriers to Change to Barriers C 43400 lcb 25-2 Sheet No. 19 Side B 07/02/2021 10:34:26 B 07/02/2021 19 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 20 Side A 07/02/2021 10:34:26

: ORCE F VERSIGHT O SE OF U 39, 40 (2012); 39, 40 (2012); Second, agen- Second, IVILIAN IVILIAN high-speed pur- OLICE C P OLICING Each of these features features these of Each OLE OF , 35 P , 35 R HE . 131, 147–48 (2001) (finding that that (finding (2001) 147–48 . 131, T

: NDERSTANDING NDERSTANDING value of formal administrative policy, policy, administrative formal of value , U ELINQ D

& (2004); Richard M. Hough Sr. & Kimberly M.

UNHAM less-than-lethal force, less-than-lethal D

RIME RIME CCOUNTABILITY Police Use of Less Lethal Force: Does Administrative Policy 19–22 G. A note 24, at 72. 72. at 24, note , 47 C OGER OGER supra supra R OLICE

, & Controlling Police Decisions to Use Deadly Force: Reexamining the , P ECIPROCITY ECIPROCITY R LPERT LPERT ALKER A RCHBOLD

AND W , A

P. & Q. 193, 193 (2017). 193 (2017). Q. 193, First, agencies should develop written policies that specify what is is what specify that policies written develop should agencies First, E.

. Third, agencies should require supervisory review of critical incident incident of critical review supervisory require agencies should Third, UST USPECTS at 73. at 73. at 72–73.

ALKER S EOFFREY

AMUEL , Id. D. White, Michael G S W Id. Id. An Examination of Florida Policies on Force Continuums , 34 J Five decades of research demonstrates the demonstrates research of Five decades 132 133 134 128 129 130 131 M K FFICERS clear policies have been demonstrated across a wide range of police behaviors in- behaviors police of range wide across a demonstrated been policies have clear shootings, officer-involved cluding Tatum, Tatum, William Terrill & Eugene A. Paoline III, Matter? (and what is behavior during not) appropriate given circumstances. Walker and Archbold highlight an administrative rulemaking framework with three three with framework rulemaking administrative an highlight Archbold and Walker key features. cies should require officers to write a written report following a critical incident a incident critical following report a written to write officers require cies should structuring of part essential an is decisions their explain officers making because discretion. Importance of Administrative Policy Administrative of Importance O 150–53 (2001). (2001). 150–53 2021] POLICE ACCOUNTABILITY ACCOUNTABILITY 427 POLICE 2021] C. Policy Administrative Effective LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM

enhances accountability by setting departmental expectations of what is appropriate iswhat of expectations departmental setting accountability by enhances explain to be required will they that officers to message a clear conveying by and that us of to one explained recently officer police a (e.g., their decision-making of establishing impacts positive The articulate?”). you “can for stands now “C.Y.A.” reports to ensure the officer acted within policy and law. and policy acted within officer ensure the reports to “policies that guide officers’ behavior in earlier stages of potentially violent encounters and in policies effective be would decisions” force deadly nonelective of likelihood the minimize shootings). officer-involved especially in structuring the parameters for police officers’ decision-making. Policy Policy officers’police parameters for in decision-making. the structuring especially ap- enforced and organization, in the widely disseminated articulated, clearly that is behavior. officer police change and culture informal shape directly can propriately C Y 43400 lcb 25-2 Sheet No. 20 Side A 07/02/2021 10:34:26 A 07/02/2021 20 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 20 Side B 07/02/2021 10:34:26

M K ., J. &

. C Y BUSE ULL RIT A B ANE Developing 57, 64–65, 57, 64–65, , 55 B ONTROLLING 280, 280–81 280–81 280, 238, 253–55 238, 253–55 OWARD C

: T SSUES I Preventing Traffic- Preventing 86 (2012); K 86 (2012); NFORCEMENT OLICING E OLICING

RIVING

L. D

Philosophyinto Practice? TTITUDES , 23 P , 23 A , 32 P ONCEPTS , FBI C URSUIT URSUIT ONTEMPORARY P OLICE C P Personnel Performance Evaluations in

: , OLICE and responses to domestic violence and responsesdomestic to violence 6 (2000), https://www.ncjrs.gov/pdffiles1/ 6 (2000),https://www.ncjrs.gov/pdffiles1/ , P HEMES AND HEMES USTICE proper span of control (eight to ten often to (eight control of span proper T J OLICING

: P TUDY OF . S July 2011,52, at 53–55;David P. Schultz et al., UNHAM

, D

NST 62 (1990); John R. Batiste et al., al., et Batiste R. John 62 (1990); ULTURE I G. L C HIEF ’ C OLICE AND ATIONAL AT Correlates of Foot Pursuit Injuries in theLos Angeles County P N foot pursuits, foot OGER OLICE OLICE . 323, 323–25 (2006). (2006). 323–25 . 323, in ., N R

Q. 177, 177–78 (2012). (2012). 177–78 Q. 177, , ES OLICE , P Barks or Bites? The Impact of Training on Police Canine Force Force Canine Police on Training of Impact The Bites? or Barks ITUATIONS & R S

, P &

‘Police Culture’ at Work: Making Sense of Police Oversight . OLICE LPERT A RAC

P note 126, at 164. 164. at 126, note OCKCROFT , 15 , 15 P P. EISBURD AL ET C INDINGS FROM A MERGENCY F W

E : 669, 683–84 (2015). (2015). 683–84 669, The importance of policy enforcement cannot be overstated. Officers be overstated. cannot enforcement policy of The importance note 31, at 33. 33. at 31, note supra supra OM OLICE T Ann Wycoff, & Mary Oettmeier N. Timothy Charlie Mesloh, AVID EOFFREY Sergeants play a vital role in preventing and controlling officer miscon- officer controlling and preventing in role a Sergeants play vital , 7 P Weisburd and colleagues reported that nearly 90% of police officers sur- of police 90% nearly that reported colleagues and Weisburd use of police dogs, of police use See See Fyfe, D See Robert J. Kaminski et al., Amanda L. Robinson & Meghan Stroshine Chandek, Holly Campeau, G supra supra Accordingly, if the informal culture of the department is defined by permis- by defined is the department of culture informal if the Accordingly, , Supervision of police officers police that of is aSupervision task foun- critical serves as a department UTHORITY 140 141 142 143 136 137 138 139 135 A HITE RIMINOLOGY ESPONSES TOESPONSES ficers per sergeant), proper training for supervisors (good supervision can and should ficersper training supervisionand for proper sergeant), can (good should supervisors subordi- their of behavior the for accountable supervisors holding and be taught) nates. dational element in the agency’s effort to guide and control officer behavior. Key Key behavior. officer and control to guide effort agency’s in the element dational include supervision for effective ingredients 71 (Dennis Jay Kenney & Robert McNamara P. eds., 2d ed. 1999); JosephA. Schafer, Effective Leadership in Policing: Perils, Pitfalls, and Paths Forward siveness and a lack of accountability when transgressions the occur, risk of excessive increases dramatically. force use of must recognize that violations of policy will have consequences. Quite simply, of- simply, Quite consequences. have will of policy violations that must recognize trou- legal or administrative into them get will that behavior avoid to seek ficers ble. nij/181312.pdf. nij/181312.pdf. duct.

Related Line-of-Duty Deaths Department Sheriff’s (2000). W (2009). R 1–2. 1, at 2010, Mar. Outcomes Community Policing Units and Domestic Violence Victim Participation C the Community-Policing Context veyed agreed that effective supervision prevents misconduct. prevents supervision effective that agreed veyed 428 428 suits, REVIEW LAW & CLARK LEWIS 25.2 [Vol. LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM D. Effective Supervision Review and OF Evidence-Based Decisions Police on Pursuits:The Officer’s Perspective incidents. 43400 lcb 25-2 Sheet No. 20 Side B 07/02/2021 10:34:26 B 07/02/2021 20 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 21 Side A 07/02/2021 10:34:26

& AW L IDEO AW OLICE OLICE V OMESTIC see also see also D OLICY AND , 19 P , 19 ORN , 45 L P UNDED UNDED Moreover, Moreover, W OTENTIAL AND -F Using Wearable Wearable Using P ODY HE B AMERA T

USTICE : C J UTCOMES OF SSEX O RISIS E ORN C This technology offers a HE -W T

, AND AND USTICE , J ODY Evaluating the Impact of Police Officer B . 1579, 1635–36 (2018). (2018). 1635–36 1579, . EPARTMENT OF Assessing the Impact of Police Body-Worn Body-Worn Police of Impact the Assessing EV D OLICING AMERAS R

P RIMINAL C

L. ,

US C OF OF 9 (2020); Barak Ariel et al., al., et Ariel Barak 9 (2020); . RENDS IN OPS T OLL They argue departments should also regularly regularly also should departments argue They , C C The Intersection of Law, Policy, and Police Body-Worn Body-Worn Police and Policy, Law, of Intersection The EY EY

AMERAS , 96 N.C. IDEO ON ON IDEO ing, and administrative protocols. administrative and ing, ALM C note 24, at 22. 22. at 24, note V ., K (2019), https://bwctta.com/sites/default/files/inline-files/(2019), NALYSIS OF M U.K. as well as evidentary value in police investigations investigations police in value evidentary as well as

A .,

ILI ILI ORN ORN supra supra A

, W 2–3 -W & . 480, 483–84 (2015). (2015). 483–84 . 480, OLICY P (2014), http://library.college.police.uk/docs/college-of-policing/Body- ODY ODY HITE ET ET HITE AL

White and colleagues completed an analysis of 304 agency agency 304 of analysis an completed colleagues and White UST HITE HITE B B J

W WENS ET ALWENS . EAR

note 87, at 13. 13. at 87, note RCHBOLD W

note 77, at 11. 11. at 77, note O A -Y

GENCIES D. RIM 16–17 D. A & OLICE C

supra supra P supra OUR F 52, 54, 59 (2020); Wesley G. Jennings et al., et al., G. Jennings Wesley (2020); 59 52, 54, MPACT OF

I A

ALKER , 43 J. ICHAEL ICHAEL ICHAEL ICHAEL

ATHERINE : HE HE M W Id. Doyle, White, M C NCIDENTS NCIDENTS T I

ERILS OF OF ERILS NQUIRY : Police body-worn cameras (BWCs) have diffused widely in American law en- law American in widely diffused have (BWCs) cameras body-worn Police Walker and Archbold posit a broader conception of review that includes but but that includes of review posit conception a broader and Archbold Walker I P

150 144 145 146 147 148 149 . M K RIAL BUSE NFORCEMENT NFORCEMENT RACTICE OC Cameras: An Exploration of Critical Issues Michael D. White & Henry F. Fradella, Body-Worn Cameras (BWCs) on Response-to-Resistance and Serious External Complaints: Evidence Evidence Complaints: External Serious and Response-to-Resistance on (BWCs) Cameras Body-Worn from the Orlando Police Department (OPD) Experience Utilizing a Randomized Controlled Experiment engage in review of policies, train in of policies, engage review Cameras on Arresting, Prosecuting, and Convicting Suspects of Intimate Partner Violence Partner Intimate of Suspects Convicting and Prosecuting, Arresting, on Cameras Early evidence suggests BWCs have numerous benefits including reduced civilian civilian reduced including benefits have suggests BWCs numerous evidence Early complaints and use of force, administrativepolicies governing useof BWCs,and more than 80% ofagencies administra- for subordinates of their BWC footage the to review allow supervisors purposes. review performance and tive, compliance, T A Q. 303, 316–17 (2016). P E BWC%20Policy%20Analysis%20-%204th%20edition%20FINAL.Dec_.2019.pdf; S forcement over the last few years, and the proliferation of the technology is driven, is driven, technology the of proliferation and the years, few the last over forcement accountability. of lack a and force of use police to tied concerns part, by in large 2021] POLICE ACCOUNTABILITY ACCOUNTABILITY 429 POLICE 2021] LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM

THE administrative review of officer behavior in critical incidents should include consid- include should incidents in critical behavior officer of review administrative of broad-level type This supervision. and policy, in training, issues larger of eration events a sentinel via incidents of critical the wake or in periodically, can occur review out- negative unexpected “a significant, as event one examines which approach, a or prison from release erroneous an conviction, a wrongful example, come—for cold case that stayed cold long—that too signalspossible a weakness the in system or process.” Technology to Increase Police Legitimacy in Uruguay: The Case of Body-Worn Cameras goes beyond supervision of officers.goes of supervision beyond and criminal cases. and worn-video-trial-2014.pdf; Weston J. Morrow et al., et al., worn-video-trial-2014.pdf; J. Morrow Weston C Y 43400 lcb 25-2 Sheet No. 21 Side A 07/02/2021 10:34:26 A 07/02/2021 21 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 21 Side B 07/02/2021 10:34:26

M K & C Y and and In cases This type type This RIMINOLOGY , 1 C , 1 information about about information fficers who work in fficers who work in . 265, 265–66 (2004). (2004). 265–66 . 265, UST J

. Police Officer Characteristics and Internal Internal and Characteristics Officer Police RIM C The integrity test provides an officer an officer provides test The integrity present important important present

force among peer o among force , 32 J. , 32 413, 435–41 (2005). (2005). 435–41 413, Y ’ OC Police Integrity Testing in Australia in Testing Integrity Police es where an officer is suspected of problematic problematic of is suspected es where an officer S

note 24, at 153. 153. at 24, note & A Watchdog Accused Officers of Serious Misconduct. Few Were Were Few Misconduct. Serious of Officers Accused Watchdog A supra supra , OLICING OLICING Policing Neighbourhoods: Exploring the GeographiesCrime, of Policing and (Nov. 15, 2020), https://www.nytimes.com/2020/11/15/nyregion/ccrb- 2020), 15, (Nov. , 15 P RCHBOLD A

IMES IMES & T

319, 321 (2001). 321 (2001). 319, , Ashley Southall et al., al., et Southall , Ashley at 161. 161. at

James P. McElvain & Augustine J. Kposowa, . ALKER , N.Y. See E.g. Tim Prenzler & Carol Ronken, David I. Ashby, W Id. UST J

Moreover, many complaints against officers are not sustained because there is against many complaints because there is Moreover, not sustained officers are An Internal Affairs (IA) unit plays a crucial role in establishingaccount- police in playsAffairs role unit a (IA) An Internal crucial First, there are many instanc First, there are many . 151 152 153 154 155 156 RIM similar areas or shifts withsame the assignment should identify outliers—those who can Further investigation interest. of activity for the average the group above are far is there if or outlier an being for reason legitimate a has officer an if then determine problematic behavior occurring. or said did the officer alleges way: the complainant either evidence no corroborating claim. either to support no evidence is and there it, denies officer the something, IA can lead this analysis An of effort. use of nyc-police-misconduct.html. nyc-police-misconduct.html. But complaints that are not sustained still re still are not sustained that But complaints George killed who officer police Minneapolis the Chauvin, Derek example, For filed complaints eighteen had minutes, nine over for his neck on kneeling Floyd by an officer’s performance, especially if there are patterns of alleged misbehavior. patterns of are if especially an there performance, officer’s who ofa is in with suspected engage staged to misconduct. opportunity misbehavior behavior, of problematic the in investigation useful also are comparisons Peer Affairs Investigations for Use of Force Allegations Force of Use for Investigations Affairs C Assessment Performance 430 430 respond and behavior, officers’ to for supervisors monitor promising mechanism occurs. force of use or excessive unnecessary when accordingly E. A ProactiveUnit Internal Affairs REVIEW LAW & CLARK LEWIS an open IA detectives reactive; entirely almost is IA unit traditional The ability. in circumstances are there or lodged been has a complaint after only investigation actions. an into for officer’s inquiry an calls policy which department 25.2 [Vol. LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM

of internal reactive policing is essential, but there are several ways in which an IA IA an which in ways several are there but essential, is policing reactive internal of depart- police a in accountability effective to contribute proactively more can Unit ment. test” “integrity an devise can detectives IA suspected, is behavior problematic where misconduct. to proactively potential target behavior, but the evidence is not sufficient to draw definitive conclusions. draw definitive to sufficient is not evidence but the behavior, Punished. 43400 lcb 25-2 Sheet No. 21 Side B 07/02/2021 10:34:26 B 07/02/2021 21 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 22 Side A 07/02/2021 10:34:26

Ker- USTICE J George George ND A note71, at 223, in

, supra

, (June 10, 2020, 3:46 AM), AM), 3:46 2020, 10, (June tizen complaints, noting noting complaints, tizen

ORCE . F USTL A

: Walker and Archbold argue an an argue Archbold and Walker BUSE OF A laints, effective police accountabil- police effective laints, In the past, investigations have often often In have the past, investigations NSIDER I

. OLICE When he was turned away, his next stop stop away, next his turned was When he P investigation of ci of investigation US , B note 24, at 141. 141. at 24, note 140–41. at 24, note note 14, at 231. 231. 14, at note ONTROLLING supra supra supra C supra supra , , , A “Procedural Justice” Perspective on Police and Civilian Satisfaction

YFE F

18 Complaints in 19 Years,Murder and a Charge: What We Know About For example, Rodney King’s brother attempted to file a com- file to attempted brother King’s Rodney example, For & RCHBOLD RCHBOLD A A

& & KOLNICK at 3. S Some agencies have an external citizen oversight board that receives, and and receives, that board oversight citizen external an have agencies Some at 2. at

NDERSTANDING AND ALKER ALKER . U

See Id. Id. Id. Id W Kerstetter, A. Wayne W Michelle Mark, : LL Law enforcement agencies vary widely in terms of how citizen complaints are are complaints citizen how terms of in widely vary agencies enforcement Law Building on the previous point about comp about point on previous Building the 159 160 161 162 163 164 165 157 158 A M K sides of the dispute.” the of sides maker . . . [and] indications that the decision maker gave due consideration to both consideration to both due maker maker gave . the decision that . . indications [and] to file complaints. to file parties to provide information and express views . . . a credible decision decision a credible . the . process should feature . a . . “perceived fairness substantial for opportunity the . views and express information provide to parties stetter applied a procedural justice lens to lens justice a procedural stetter applied FOR Chauvin’s long history of regardless complaints, of or whether were they not sus- should that behavior problematic potentially about flags red of a series were tained, in IA sort analysis pattern of can this engage unit A proactive investigated. have been excessively. or unnecessarily force using are who officers to identify F. Accessible CivilianProcess Complaint who seek citizens obstruct actively or ignore agencies misconduct-prone that found

Ex-Minneapolis Police Officer Derek Chauvin https://www.businessinsider.com.au/derek-chauvin-minneapolis-police-background-life-2020-6. 2021] POLICE ACCOUNTABILITY ACCOUNTABILITY 431 POLICE 2021] discipline. in resulted two only though career, nineteen-year his over against him LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM effective citizen complaint process is defined by openness and transparency. and openness by is defined process complaint effective citizen Holliday was similarly dismissed by the LAPD when he offered to hand over the the over hand to offered he when LAPD the by dismissed similarly was Holliday beating. King Rodney the of tape video 230–31. 230–31. plaint at the Foothill station of the Los Angeles Police Department the day after after day the Department Police Angeles Los of the station Foothill at the plaint sergeant. the desk by away turned was He arrested. and beaten was King was the local television station down the street. station television was the local investigated. In many cases, the IA unit receives, investigates, and adjudicates com- adjudicates and investigates, receives, IA unit the cases, In many investigated. plaints. ity is grounded in the notion that civilians should have a simple, accessible mecha- accessible a simple, have should civilians that notion the in grounded is ity nism for filing complaintsagainst officers. with Investigations of Police Use of Force: Finding a Common Ground of Fairness of Ground Common a Finding Force: of Use Police of Investigations with C Y 43400 lcb 25-2 Sheet No. 22 Side A 07/02/2021 10:34:26 A 07/02/2021 22 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 22 Side B 07/02/2021 10:34:26

: M K In In C Y ATIONAL The EI The EI OLICING P N

A N

I : . 219, 220 (2016). 220 (2016). . 219, SSUES FFICER I O EHAV Continued monitor- Continued B OLICE RITICAL P IOLENT IOLENT C V in

, & 59, 60 (2000); Christopher J. Harris, J. Harris, Christopher (2000); 59, 60 ROBLEM ROBLEM Y ’ P OL P

(2000), https://www.ncjrs.gov/pdffiles1/nij/ https://www.ncjrs.gov/pdffiles1/nij/ (2000), Regardless of the mechanism (e.g., in- (e.g., mechanism the of Regardless &

Police Accountability and Early Warning Systems: GGRESSION Walker describes a range of different citi- different of a range describes Walker . ES 1.7 R

. , 31 A note 24, at 178, 185–86. 185–86. 178, at 24, note 180. at 24, note UST YSTEMS ESPONDING TO THE S Early Intervention Systems Intervention Early R supra supra supra

, 29 J note 168, at 66. 66. at 168, note , , ., note 127, at 151. 151. at 127, note 655, 656 (Roger G. Dunham et al. eds., 8th ed. 2021) (discussing (discussing 2021) ed. 8th eds., al. et Dunham G. (Roger 656 655, supra ARNING Though departments vary widely with regard to what is con- is what to regard with widely vary departments Though use of force reports, citizen complaints, frequency of high-speed high-speed of frequency citizen complaints, reports, force use of supra supra W RCHBOLD RCHBOLD , A A

ALKER ET AL EADINGS & & R W ARLY ALKER E W John A. Shjarback, Shjarback, A. John at 142. 142. at ALKER ALKER AMUEL When an officer is flagged, a supervisor is notified to investigate and deter- and investigate to notified is supervisor a flagged, is officer an When W See S Alpert & Walker, W Id. See Walker, Samuel & P. Alpert Geoffrey A comprehensive Personnel Early Warning System is an essential component component an essential is System Warning Early Personnel A comprehensive The iden- agency. early law enforcement a well-managed in good discipline of tification of potential problem employees and a menu of remedial actions can An early intervention (EI) system is a sophisticated computerized program de- program computerized a sophisticated is system (EI) intervention An early 169 170 171 172 173 166 167 168 ONTEMPORARY TUDY OF 188565.pdf. 188565.pdf. mine if there is a reasonable explanation, or if the officer is indeed engaged in prob- in engaged indeed is officer the or if explanation, a reasonable is there if mine delivers then supervisor the is identified, behavior problematic If activities. lematic peer such as training, behavior, address the to intervention aor assigns non-punitive (e.g., marital counseling). or referral to services mentoring, C in departments). “red flags” police different of examples S Misconduct Police of View Career a Towards Developing Policies and Programs 432 432 ininvestigates some cases, complaints. REVIEW LAW & CLARK LEWIS 25.2 [Vol. LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM sidered a red flag, a red sidered zen oversight models that vary by investigatory authority, subpoena power, and in- and power, subpoena authority, investigatory by vary that models zen oversight department. the police from dependence red the more common of some as identified been have litigation civil and chases, flags. ternal or external to the police department), the process should be defined by by defined be should process the department), police the to external or ternal accountability. and integrity, openness, G. System Intervention Early Non-Punitive ing by the supervisor ensures that the problematic behavior has stopped. Walker and and Walker has stopped. behavior problematic the that ensures supervisor the ing by policing. in practice” a “best as emerged have EI systems that note Archbold 2001, the Commission on Accreditation for Law Enforcement Agencies (CALEA) (CALEA) Agencies Enforcement Law for Accreditation on Commission 2001, the process: accreditation of their a component required as systems EI adopted system relies on a series of pre-determined “red flags” that represent threshold levels levels threshold represent that flags” “red pre-determined of a series on relies system outcomes. risky of signed to identify officers who may be engaged in questionable conduct. in questionable be engaged may who officers identify to signed 43400 lcb 25-2 Sheet No. 22 Side B 07/02/2021 10:34:26 B 07/02/2021 22 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 23 Side A 07/02/2021 10:34:26

: T ’ , 62 , 62 NF E YSTEMS S AW L Christi L. L. Christi N ON ’ ARNING W OMM Overall, they conclude conclude they Overall, 314, 314, 316–17 (2015). ARLY Shjarback some reported E cmt. (C cmt.

OLICING OLICING 35.1.9

USTICE § Other studies havefound an EI J Moreover, the research sys- on Moreover, EI the , 9 P OF (2001). (2001). Thousands of Complaints Little Do to Change . Early Intervention Systemsfor Police: A State-of- 2 NST TANDARDS I S L . 409, 415 (2013). (2013). 415 . 409, ’ FFICER filed by the U.S. Attorney General pursuant to it have it have to General pursuant Attorney U.S. filed by the O AT

GENCY N EHAV A

., Promoting Civil RightsThrough Proactive Policing Reform Intervention with Problem Officers: An Outcome Evaluation of an OLICE OLICE &

P . Emerging Early Intervention Systems: An Agency-Specific Pre-Post Pre-Post Agency-Specific An Systems: Intervention Early Emerging 643, 644 (2020). 644 (2020). 643, (June 8, 2020), https://www.nytimes.com/2020/05/30/us/derek- 2020), 8, (June UST J

. ROBLEM IMES IMES RIM NFORCEMENT P ALKER ET AL T E OLICING OLICING

W 34 U.S.C. § 12601 (2018). (2018). 12601 § U.S.C. 34

AW , 40 C , 40 L , 43 P . 1, 18–19 (2009). (2009). . 1, 18–19 , N.Y. Rachel A. Harmon, Shaila Dewan & SergeKovaleski, F. at 649–51. 649–51. at 653. at EV 2006). 2006). ALEA AMUEL They identified eight studies and noted that the majority reported that the the that reported majority the that noted and studies eight identified They R S al., et E. Worden Robert A. Shjarback, John Christi L. Gullion & WilliamKing, R. Id. Id. C U.S.C. 42 at codified originally was (1994) 2071 Stat. 108 103-322, No. L. Pub. See See

EI systems are complex, difficult to maintain, and do not guarantee results. For For results. guarantee not do and maintain, to difficult complex, are systems EI increase agencyaccountability and offer employees a better opportunity to statement. and mission values agency’s the meet . 178 179 180 181 182 183 174 175 176 177 M K ESPONDING TO THE GENCIES TAN the-Art Review positive effects among agencies which were required to implement an EI system, but but system, an EI implement to which were required agencies among effects positive overstated.” been have may systems of EI “effectiveness the concluded tems is mixed. Walker and colleagues evaluated EI systems in the Miami-Dade Po- Miami-Dade the in systems EI evaluated colleagues and Walker mixed. is tems Police Orleans the New and Department, Police Minneapolis the Department, lice who officers for dropped and complaints force of that use found and Department intervention. EI an and received were flagged systemalso maylead officers to becomingless proactive. Gullion and William R. King recently completed a state-of-the-art review of EI sys- of review a state-of-the-art completed recently King R. William and Gullion tems. “[a]n effective EI system can be a valuable supervisory and accountability tool for a tool accountability and supervisory a valuable be can EI system “[a]n effective organization.” police EI systems have also been the centerpiece of reforms required by the U.S. Depart- the U.S. by required of reforms centerpiece the been also have systems EI ment of Justice’s CivilRights Division in litigationagainst police departmentsunder 1994 of Act Enforcement Law and Control Crime Violent ofthe 210401 Section decrees. associated consent and long been referred to as “Section 14141” actions. Effective in September of 2017, the provision provision the 2017, September of in Effective actions. 14141” “Section as to referred been long was reclassified at Intervention EIS § 14141 (2012). As a result, civil actions actions civil result, As a (2012). 14141 § R A S Police Ways 2021] POLICE ACCOUNTABILITY ACCOUNTABILITY 433 POLICE 2021] LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM EI system led to reductions in use of force and/or complaints, though they noted a a noted though they complaints, and/or force of use in reductions to led system EI needed. is research more and effect no found studies few example, the Minneapolis Police Department has had an EI system in place since an EI system in place has since had Department Police the Minneapolis example, Derek Chauvin. identify failed to it 2009 but chauvin-george-floyd.html. Comparison of Formal Citizen Complaints of Use of Force C Y 43400 lcb 25-2 Sheet No. 23 Side A 07/02/2021 10:34:26 A 07/02/2021 23 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 23 Side B 07/02/2021 10:34:26

. . M K UB C Y P

ROBS P

U. . Under Under ANADIAN OC S

OUIS L

, 38 C & . Specific func- Specific note 186, at 11. 11. at 186, note T J.L.

. note 186, at 17–19. supra , 22 S , 22 Auditors oftenfocus supra OLUM Clarke, , 43 C , 43 It is widely recognized that that recognized widely is It Clarke, see also also see There are about a dozen police police a dozen about There are Auditors are typically permanent permanent typically are Auditors see also at 214; 214; at 216. at

e, and even when they are, they are unlikely are unlikely are, e, and even when they they note 24, at 231; 231; 24, at note note 110, at 481–82. 481–82. at 110, note note 24, note 24, note supra supra supra , note 14, at 227. 227. at 14, note supra supra supra , , ArrestedOversight: A Comparative AnalysisCase and Study of How supra supra , When Police Investigate Police: A View from Complainants RCHBOLD

A Civilian Oversight of the Police in the United States

YFE F RCHBOLD RCHBOLD

& Indeed, the perception of bias can undermine police investiga- police can undermine bias of perception the Indeed, A A

& & & 291, 292–93 (1996). (1996). 291, 292–93 ALKER at 216–19. 216–19. at Stephen Clarke, Clarke, Stephen W

ALKER ALKER KOLNICK Walker and Archbold advocate for the auditor model of oversight because because oversight of model auditor the for advocate Archbold and Walker S Landau, Tammy See See W W Id. Id. Merrick Bobb, . 151, 159–63 (2003); White, White, (2003); 159–63 . 151, External oversight of a police department can take many forms, from a citizen Nevertheless, there are numerous challenges associated with citizen oversight citizen oversight with associated challenges are numerous there Nevertheless, 186 187 188 189 190 191 192 184 185 EV RIMINOLOGY R C

1, 11–12 (2009). this model, one individual (or office) with some degree of legal and/or policing ex- policing and/or legal of degree some with office) (or individual one model, this auditor. independent a as full-time serves pertise tions of the auditor can include auditing the complaint process (how civilian com- (how civilian process complaint the auditing include can auditor of the tions of (use policy and operations police auditing investigated), and received are plaints a as (serving outreach community in engaging BWCs), of activation the TASER; (publishing transparency to contributing and civilians), and police between liaison of the auditor). the activities detail reports that Civilian Oversight of the Police Should Function and How It Fails J. L. 434 434 Oversight External H. auditor. permanent a full-time, to board oversight REVIEW LAW & CLARK LEWIS 25.2 [Vol. LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM

tions of officer misconduct, especially in jurisdictions where police-community re- police-community where jurisdictions in especially misconduct, officer of tions are strained. lations some form of external oversight of the police accomplishes several important objec- important several accomplishes of the police oversight ofsome form external state can “a strong case and Fyfe transparency. is Skolnick firstof which tives, the be cannot that police on the notion primarily based review for civilian be made other polic when investigating impartial on organizational level processes rather than individual complaints. individual than rather processes level on organizational positions created bylocal orlaw, state and in cases, most they have much greater board. oversight citizen more traditional than the authority it overcomes many of the limitations with traditional citizen oversight. citizen traditional with limitations the of many it overcomes of the police, such as concerns about the qualifications (or lack thereof) for those for those lack thereof) (or the qualifications about as concerns such police, of the the police and board the between the cooperation board, an oversight on who serve recommend and complaints investigate to the board of authority the department, recommenda- to board department police of the responsiveness the and discipline, tions. to be credible.” 43400 lcb 25-2 Sheet No. 23 Side B 07/02/2021 10:34:26 B 07/02/2021 23 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 24 Side A 07/02/2021 10:34:26 AW IEW IEW L

: NFORCEMENT E

OLICING L. OURCES OF P S L in ’ , NT to the President’s Task ATIONAL N The structural features are are features The structural

USTICE J and an impossibly vague and broad broad and vague impossibly an and If these principles and strategies are are and strategies principles If these ent. There are structural features of the of the features structural are ent. There d the experiences in many of those juris- those of in many experiences d the T OF ’ EP D

note 14. (2016), https://www.bjs.gov/content/pub/pdf/nsleed.pdf. https://www.bjs.gov/content/pub/pdf/nsleed.pdf. (2016),

1 note 1. U.S. ACCOUNTABILITY ACCOUNTABILITY note 70. 70. note supra

, ATA ATA ., D supra , supra supra , The Police: Mandate, Strategies, and Appearances EPORT R note 115, at 7, 12. 12. 7, at 115, note note 110, at 482. For more information, see I information, more For 482. at 110, note EPORT note 3. EPORT R and the Knapp Commission in 1972 Knapp Commission and the supra R ORCE ORCE ANKS ET AL , F B MPLOYMENT note 12. supra , https://ileaa.org/ (last visited May 26, , https://ileaa.org/ May (last 2021). visited supra supra E N

’ ERNER NAPP ASK and to of the longstanding persistent undercurrent injustice racial that SS K T supra TREET IV. THE PRIMARY BARRIERS TO EFFECTIVE POLICE POLICE EFFECTIVE TO BARRIERS PRIMARY IV. THE K A S UREN See See See Obama, D Peter K. Manning, See the are we believe those on is focus here the but reform, police to barriers other are There White, History demonstrates that these principles and strategies are very difficult to to difficult very are strategies and principles these that demonstrates History The principles and strategies described above represent the ingredient list for for list ingredient the represent above described strategies and principles The 195 196 197 198 199 200 201 193 194 M K UDITORS NFORCEMENT NFORCEMENT known, why do we continue to witness horrific witness excessive ofpolice to and cases brutality we continue do known, why

E most prevalent and persistent. These barriers likely vary significantly by agency. mandate, profession. the of the origins to back traced can be other also are But there to change. impossible nearly cases, in some and deep-seated, Be- addressed. directly be can and are less intransigent impediments reform that to strongest barriersaccountability, police highlight to effective some of the low we them. overcoming about our thoughts with along A force? Former President Obama is correct: “[t]his shouldn’t be ‘normal’ in 2020 in 2020 be ‘normal’ shouldn’t “[t]his is correct: Obama President force? Former America.” departm police in a maintain and implement maintaining of difficulty the to contribute that States United the in profession police nearly with industry an of fragmentation tremendous the from accountability, agencies enforcement law 18,000 different 2021] POLICE ACCOUNTABILITY ACCOUNTABILITY 435 POLICE 2021] an States, United the throughout auditors LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not mechanism. accountability an as effectiveness the model’s highlight dictions 11:37 6/14/2021 AM FROM THE Force on 21st Century Policing in 2015. Policing 21st Century Force on effective police accountability. We also believe there are no surprises on this list. In In list.this on surprises no there are also believe We accountability. police effective in rec- the appeared continually principles and strategiesfact, of these have many years, last 50 the over police the examining panels of blue-ribbon ommendations of Administration the and Enforcement on Law Commission from the President’s 1968 Justice in C Y 43400 lcb 25-2 Sheet No. 24 Side A 07/02/2021 10:34:26 A 07/02/2021 24 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 24 Side B 07/02/2021 10:34:26 M K IDE IDE C Y , 51 , 51 S AW AND ARK L Skolnick Skolnick D Q. 451, 452– Q. 451, NFORCEMENT IN E OLICE TTACK ON A AW L EW , 23 P

: Ambush Killings of the Police, N RIAL NDERSTANDING THE THE NDERSTANDING The President’s Task Force Force Task The President’s T U

: note 14,at 112; Jason R. Ingram et OW THE H

: supra supra ITHOUT , OPS EVIANCE W C D YFE F

. 253, 253 (1979). (1979). 253 . 253, & AR ON USTICE W DMIN ORCES OF , J A

HE 3–4 (2016); Michael D. White, D. White, Michael 3–4 (2016); note 14, at 11–12. ., &

KOLNICK . Kappeler and colleagues outlined a police worldview note 14, at 113–16. 113–16. at 14, note , T CI AFE S S supra

, KOLNICK S The division between police and citizens has been further been further has and citizens police between The division supra supra ESS

ONALD , L Bending Granite: Attempts to Change the Rank Structure of American note 202, at 42, 52–58. 52–58. 42, at 202, note OLICE D H. P YFE EPORT

6 (1966); S 6 (1966); F APPELER ET AL ET APPELER R AC supra K

& M , , 7 J. , 7 E. Skolnick described a police “working personality” defined by several several by defined personality” a “working police Skolnick described VERYONE ORCE ORCE OCIETY EROME EROME E

365, 366–68 (2013). (2013). 366–68 365, S F 89–107 (2d ed. 1998). 1998). ed. (2d 89–107 , J EATHER ICTOR ICTOR ASK AKES KOLNICK KOLNICK S V Guyot, Dorothy S H T E.g. M There is an extensive body of research on the existence of a police subculture of a on of research subculture police the existence There body an extensive is There’s an old saying, “Organizational culture eats policy for lunch.” Any law law Any lunch.” for policy eats culture “Organizational saying, old an There’s emphasize that and policies rules can great make organization enforcement will they culture, existing the with conflict policies if but role, guardian the not be institutionalized and behavior will not change. In policework, the vast majority of an officer’s work done is independently outside the immediate oversight of a supervisor. But consistent enforcement of rules that conflict the is command of chain the to where obedience culture, a military-style with norm, is nearly impossible. Behavior is more likely to conform to culture than rules. The police subculture often resists change and can be a strong barrier to reform. barriera to reform. strong be change can resists often and subculture The police The Task Force report discusses how culture can be aligned with the values of of values with the aligned be can culture how discusses report Force The Task 203 204 OLICING 205 206 207 208 202 A Multilevel Framework forUnderstanding Police Culture: The Role of the Workgroup P RDER EMOCRATIC RIMINOLOGY C occupational attributes including an emphasis on danger, solidarity among police, police, among solidarity danger, on emphasis an including attributes occupational citizens. from isolation and on 21st Century Policing acknowledged the power of culture: of culture: power the acknowledged Policing on 21st Century 1970–2018:A Longitudinal Examination of“War the on Cops” Debate

Police Departments O D al., 436 436 Subculture A. Police a police of norms informal the in determining subculture that of power and the department. REVIEW LAW & CLARK LEWIS 25.2 [Vol. LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM OF exacerbated by the recent perceived “war on cops.” “war perceived the recent by exacerbated defined by an “us v. them” mentality, strong cultural themes (emphasizing bravery, bravery, (emphasizing themes strong cultural mentality, them” “us v. an by defined elab- an and themes, those teaches that process acculturation an secrecy), autonomy, subculture. the that govern postulates or rules set of orate Guyot equated organizational change in policing to “bending granite.” to “bending change in policing organizational equated Guyot and Fyfe maintained that subculture, especially the “cops as soldiers” philosophy, philosophy, soldiers” as “cops the especially subculture, that maintained and Fyfe to police and it contributes that and citizens, police between the divide has deepened of force. excessive use 53 (2020). 53 (2020). the organization, primarily through adoption of a guardian mindset and procedural procedural and mindset of a guardian adoption through primarily the organization, 43400 lcb 25-2 Sheet No. 24 Side B 07/02/2021 10:34:26 B 07/02/2021 24 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 25 Side A 07/02/2021 10:34:26

. Is Is EP R 312– There There (Aug. 28, (Aug. DVANCING ORLD A W ties, see Mike

VIDENCE , E N & ’ HE Jennifer Cobbina, T OVERNING

EWS EWS OMM : N C

, G see also see OLICING , U.S. P ersity of their communi their ersity of PPORTUNITY Moreover, many believe that in- believe many Moreover, O T ’ MP E Q. 575, 577 (2000);

FFECTIVENESS IN . E

UST QUAL QUAL Police Culture, Individualism, and CommunityPolicing: E

ii (2016), https://www.justice.gov/crt/case-document/ https://www.justice.gov/crt/case-document/ (2016), ii , 17 , 17 J note 1, note at 165–66, 329–33. For a discussion of why it is & note 14, at 240–41. 240–41. at 14, note AIRNESS AND supra

, , F supra supra USTICE , J EPORT NFORCEMENT YFE R E others have argued that diversity in the workforce is central to is central to in the workforce that diversity argued others have F OUNCIL

T OF & . ’ AW ES EP L ERNER R D L ’

, K at 11. 11. at AT KOLNICK Where Police Don’t Mirror Communities and WhyMatters It S N Eugene A. Paoline, III et al., U.S. Id. E.g. We believe increased minority and female representation can also weaken the the also weaken can female representation and minority increased We believe Research further suggests that increased diversity can make law enforcement law enforcement can make increased diversity that suggests Research further agencies more open to reform, more willing to initiate cultural and systemic have pointed serve. Some they residents the to responsive changes, and more to increased diversity as a catalyst for reform, enabling officers and law en- about reflective and introspective more become to alike leaders forcement problems in their departments. 211 212 213 214 209 210 M K IVERSITY IN IN IVERSITY officers-the-key-to-reducing-police-violence. officers-the-key-to-reducing-police-violence. notably the perceived link between under-representation and tense, long-term con- long-term tense, and under-representation between link perceived the notably and communities. minority police flict between Maciag, creasing the diversity of the police force will enhance police legitimacy, which will which will legitimacy, police enhance will force police the of diversity the creasing effectiveness. police and cooperation community increase ultimately file/900761/ download. important to have police departments that mirror the div the departments that mirror have police to important (Feb. 5, 2020), https://www.usnews.com/news/cities/articles/2020-02-05/is-hiring-more-black- In addition to the principles and strategies outlined here, we also believe that in- that believe we also here, outlined and strategies principles the to In addition department a of diversity orientation sexual and gender, ethnic, racial, the creasing been years, there have For subculture. aspectsnegative police of the can down break serve. they the communities of representative more be to police for calls Evidence fromTwo Police Departments D 2021] POLICE ACCOUNTABILITY ACCOUNTABILITY 437 POLICE 2021] mentality. soldiers” as “cops of the abandonment and principles as guiding justice predominantly White malepoliceThough researchers some subculture. have ques- this idea, tioned LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM

are a number of reasons why diversity in police departments is emphasized, most most emphasized, is departments police in diversity why reasons of number a are effective police reform. In 2015, the Civil Rights Division of the U.S. Department Department U.S. of the Division Rights the Civil 2015, In reform. police effective (EEOC) created Commission Opportunity Employment and the Equal of Justice that: noting initiative, Enforcement” Law in Diversity an “Advancing 2015), https://www.governing.com/topics/public-justice-safety/gov-police-department-diversity. 2004). eds., Frydl Kathleen & Skogan 14 (Wesley Violence? Police Reducing to Key the Officers Black More Hiring html. html. C Y 43400 lcb 25-2 Sheet No. 25 Side A 07/02/2021 10:34:26 A 07/02/2021 25 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 25 Side B 07/02/2021 10:34:26

, - M K 6 C Y NTI The The A , U.S. at 112 at 112 USTICE USTICE J

reprinted in reprinted it.” UREAU OF B 1894–1994,

tolerate , (1994), (1994), USTICE EPORT J ORRUPTION AND THE THE AND ORRUPTION R C 5–6 (2019), https://www.bjs.gov/ https://www.bjs.gov/ 5–6 (2019), T OF OMMISSIONS ’ C EP OLICE OLICE D

P OMMISSION U.S. C ERSONNEL

, , P

T ’ AVIS EP D D 2016: NVESTIGATION

Alternatively, after a major corruption scandal scandal corruption a major after Alternatively, I , LLEGATIONS OF OLICE A P note 14, at 138–45. 138–45. at 14, note LIZABETH E

& EPARTMENTS ORRUPTION ORRUPTION supra supra C D Taxpayer Bill from Arpaio’s Profiling Case Will Reach $178M , (May 22, 2020), https://www.usnews.com/news/best-states/arizona/ https://www.usnews.com/news/best-states/arizona/ 2020), 22, (May (Mar. 8,2017), https://www.policechiefmagazine.org/creating-a-

. Creating a Multicultural Law Enforcement Agency: An Intentional Priority An Intentional Agency: Enforcement Law Multicultural a Creating NVESTIGATE YFE I YLAND F EP

Clearly, there is more work to be done in this area, and some some and area, this in done be to work more is there Clearly, OLICE OLICE H R

P & NLINE P The investigation by the U.S. Department of Justice’s Civil Rights Rights Justice’s Civil of Department U.S. by the The investigation S. O N TO ROCEDURES OF THE ’ ITY P OCAL ORLD ORLD C L

at 178–79. 178–79. at 180. at , HIEF HIEF Skolnick and Fyfe note: “Murphy used his three and a half years in office office in years half a and three his used “Murphy note: Fyfe and Skolnick W OMM KOLNICK HELLEY

C S Id. Id. C Jacques Billeaud, S Patrick Oliver, ORK & Y Regrettably, poor leadership still exists today. Under Sheriff Joe Arpaio, the the Arpaio, Joe Sheriff Under today. exists still leadership poor Regrettably, Police accountability hinges on strong, effective leadership. The chief sets the the sets The chief leadership. effective strong, on hinges accountability Police Thoughthe diversity police of departmentsincreased has over time, national 217 218 219 220 221 215 216 EW EWS ORRUPTION OLICE TATISTICS content/pub/pdf/lpd16p.pdf. in Milwaukee demonstrate how attitudes of the chief can send a message to line staff staff line to a message send can chief the of attitudes how demonstrate in Milwaukee acceptable. is conduct abusive that multicultural-law-enforcement-agency/. multicultural-law-enforcement-agency/. Mollen concluded Commission their in investigation the NYPD of in misconduct be reflected It must an abstract value. be just cannot integrity to that “commitment Commissioner.” Police of the the deeds, in but words, in the not only C

P N N S 438 438 REVIEW LAW & CLARK LEWIS 25.2 [Vol. LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM to create an environment that loudly and clearly condemned abusive police conduct, conduct, abusive police condemned and clearly loudly that an environment to create who important—those and—equally in it, engage who those Maricopa County Sheriff’s Office engaged in widespread, unconstitutional racial racial unconstitutional in widespread, Maricopa engaged Sheriff’s Office County contempt a criminal organization, the of oversight court federal to leading profiling, com- and legal in million $178 nearly and in 2017 Arpaio for conviction court of costs. pliance B. Poor Leadership Leadership B. Poor of enforcement and creation the through only not organization, tone for the entire When the department. norms of the informal influencing but also by formal rules, and force of use excessive or tolerate support department the of norms the informal mean- become policies administrative formal unpunished, in it go engage who those ingless. Darryl Gates inLos Angeles, Frank Rizzoin Philadelphia,and Harold Breier (Gabriel J. Chin ed., 1997). 1997). ed., Chin J. (Gabriel data from 2016 indicate that only 12% of officers were female and 24% were His- and 24% female were officers 12% of only that indicate 2016 from data Black. or panic innovative police leaders have identified key steps to achieving a more diverse work- diverse a more achieving to steps key identified have leaders police innovative force. in the NYPD during the 1970s, Patrick Murphy was appointed Police Commis- Police appointed was Murphy Patrick 1970s, the during NYPD in the sioner. 43400 lcb 25-2 Sheet No. 25 Side B 07/02/2021 10:34:26 B 07/02/2021 25 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 26 Side A 07/02/2021 10:34:26

Kevin ERGUSON F see also e principles and and e principles (July 31, 2017, 4:08 PM), PM), 4:08 2017, 31, (July AY But unions alsoas But serve “Ferguson’s law enforce- law “Ferguson’s -W . 109, 109 (2017); 109 . 109, WO EV NVESTIGATION OFTHE R I L.J. 185, 187 (2005); Benjamin Levin, Levin, Benjamin (2005); 187 185, L.J.

Y . , ’ ives who embrace th embrace who ives . 1333, 1340–41 (2020). (2020). 1340–41 . 1333, NT OL I

P EV .

, NPR: T R

& USTICE UB

J a clear message to their line officers about about officers line their to message a clear P L.

L. .

. T OF TAN ;’ OLUM EP , 14 B.U. D , 28 S , 28

, 120 , 120 C Let the Sunshine In: Illuminating the Powerful Role Police Unions Unions Police Role Powerful the Illuminating In: Sunshine the Let An Impediment to Police Accountability? An Analysis of Statutory U.S.

n, Missouri Police Department found the department was was department found the Missouri Department n, Police ., IV

D 2 (2015), https://www.justice.gov/sites/default/files/opa/press-releases/ 2 (2015), https://www.justice.gov/sites/default/files/opa/press-releases/ IGHTS IGHTS R at 12. 12. at 38. at

EPARTMENT IVIL IVIL The report also noted the unlawful conduct extended to use of force: force: of to use extended conduct unlawful the noted also The report For instance, when one commander attempted to discipline an officer for for officer an discipline to attempted commander one when instance, For D C Id. Id. Id. Note, J. Bies, Katherine Force frequently is not reported. When it is, there is rarely any meaningful meaningful any rarely is there is, When it reported. not is frequently Force review. Supervisors do little to no investigation; either do not understand or choose not to follow FPD’s use-of-force policy in analyzing officer conduct; Police unions play a “powerful role” at the micro-level by shielding “bad ap- “bad shielding by micro-level the at role” a “powerful play unions Police rarely correct officer misconduct when they find it; and do not see the patterns see patterns and not the do find it; when they misconduct officer correct rarely are evident aggregate. While in incidents when viewing the these abuse that of Chief Jackson implemented new department policies when he joined FPD in rou- are policies review, these and reporting use-of-force on 2010, including tinely ignored. 222 223 224 225 226 M K OLICE Ex-SheriffJoe Arpaio Convicted of Criminal Contempt ment practices are shaped by the City’s focus on revenue rather than by public safety safety public than rather by City’s on revenue focus the by arement practices shaped of character institutional the has compromised on revenue This emphasis needs. Ferguson’s policecontributing department, to a pattern unconstitutional of policing.” P attachments/2015/03/04/ferguson_police_department_report.pdf. attachments/2015/03/04/ferguson_police_department_report.pdf. What’s Wrong with Police Unions? Police with Wrong What’s over-ticketing, Chief Thomas Jackson responded “‘[n]o discipline for doing your your for doing discipline “‘[n]o Jackson responded Thomas Chief over-ticketing, job.’”

M. Keenan & Samuel Walker, Walker, Samuel & Keenan M. Rights of Bills Officers’ Enforcement Law articles/2020-05-22/taxpayer-bill-from-arpaios-profiling-case-will-reach-178m; Colin Dwyer, engaged in a pattern or practice of unlawful conduct that violated citizens’ consti- citizens’ violated that conduct of unlawful practice or in a pattern engaged gen- revenue through driven was conduct unlawful the of much and rights,tutional police. of chief the and leaders city by sought eration execut police and Jackson, Arpaio to In contrast send will Article in this outlined strategies police and citizens, groups, activist leaders, city upon is incumbent It accountability. leadership. effective demand to themselves, officers C. CivilReform Impediment Unionsand to Service as an 2021] POLICE ACCOUNTABILITY ACCOUNTABILITY 439 POLICE 2021] Division into Ferguso the LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM https://www.npr.org/sections/thetwo-way/2017/07/31/540629884/ex-sheriff-joe-arpaio- Play in Shielding Officer Misconduct Officer in Shielding Play ples” who engage in specific instances of misconduct. of instances specific in engage who ples” convicted-of-criminal-contempt. C Y 43400 lcb 25-2 Sheet No. 26 Side A 07/02/2021 10:34:26 A 07/02/2021 26 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 26 Side B 07/02/2021 10:34:26

. M K

EO L.J. C Y . 953, . 953, EV UKE , 85 G R

Double Due L.

. , 68 D , 68 ILL (Oct. 11, 2017), 2017), 11, (Oct. We join the latter join the latter We , 62 V , 62 Police Unions Others reject aboli- reject Others Nick Place, ATION In fact, collective bar- fact, collective In , N (June 16, 2020, 3:23 PM), PM), 3:23 2020, 16, (June see also L.J. 1191, 1198 (2017) (analyzing (analyzing (2017) 1198 1191, L.J. Discipline and Policing LOBE UKE G In Police We Trust In Police

. note 226, at 1340–41. OS lue in supporting public sector unions unions sector public in supporting lue , 66 D But even when not responding to specific specific to responding not But even when supra , B agreements and concluding that “a substantial the Fraternal Order of Police, both nationally nationally both Police, of Order Fraternal the but also frustrate other forms of police accounta- police of forms other frustrate but also . 275 (2018) (detailing how so-called “Bills of Rights” for law law for Rights” of “Bills so-called how (detailing (2018) 275 . Catherine Fisk & L. L. Song Richardson, EV R

cers accountable for their actions”); actions”); their cers accountable for The Fraternal Order of Police Must Go Must Police of Order Fraternal The Police Union Contracts L.

see also Sometimes they even use mass media and social media to stake to stake social media and mass use they media Sometimes even note 97, at 799; Levin, Levin, 799; at 97, note note 226, at 1341–42; Kate Levine, Levine, Kate 1341–42; 226, at note note 226, at 1352. note 226, at 1342–48. note 226,112–13; at Rachel Moran, supra supra supra supra . 712, 747–49 (2017) (discussing the “zeal and leverage” with which police unions unions police which with leverage” and the “zeal (discussing (2017) . 712, 747–49 supra , 52 U.S.F. at 1347. 1347. at EV Paul Butler, at 1349–50; R The latter is accomplished in two distinct ways—by contractual provisions provisions contractual ways—by distinct in two is accomplished The latter

Id. Levin, See Bies, Harmon, Stephen Rushin, Levin, Levin, Id. L.

. Some have called for the elimination of police unions. police of elimination for the called have Some 232 233 234 235 227 228 229 230 231 ASH more than 175 police collective bargaining number . . . unreasonably interfere with or otherwise limit the effectiveness of mechanisms . . . number group—and not simply because there is va is there because simply not group—and https://www.thenation.com/article/archive/the-fraternal-order-of-police-must-go/; Jeff Jacoby, Jeff Jacoby, https://www.thenation.com/article/archive/the-fraternal-order-of-police-must-go/; 839, 859, 870–72 (2019). out positions that defend police actions and policies that ought to be indefensible, indefensible, to be ought that policies and actions police defend that positions out 12-year-old the Rice, Tamir criticized Cleveland in union police such as when the played he while back child’s the into shots two firing by killed rookie police a whom witha at apark. neighborhood BB gun For instance, “police unions have resisted and have been quick to throw their weight to throw their weight quick and been have have resisted “policeFor instance, unions the likeli- and tensions racial exacerbate to appear that policies and politics behind of hood violence.” purposefully designed to prevent changes to the status quo and by the political and and political the by and quo status to the changes prevent to designed purposefully efforts. reform to opposition in take unions police that positions relations public https://www.bostonglobe.com/2020/06/16/opinion/dont-reform-police-unions-abolish-them/. https://www.bostonglobe.com/2020/06/16/opinion/dont-reform-police-unions-abolish-them/. W 440 440 reform. policing systemic macro-level, to obstacles major REVIEW LAW & CLARK LEWIS 25.2 [Vol. LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM

Don’t Reform Police Unions. Abolish Them controversies, itcontroversies, is indisputable that andlocally, been has stridently opposedto reform initiatives and vocally supportive justice.” racial and reform justice criminal to hostile policies and “politicians of bility. gaining agreements specify grievance procedures that not only complicate the disci- the complicate only that not procedures grievance specify agreements gaining officers, misbehaving of pline 997 (2017). (2017). 997 enforcement officers in Baltimore, Chicago, and Cleveland worked to protect the officers involved involved officers the protect to worked Cleveland and Chicago, Baltimore, in officers enforcement in the killings of Freddie Gray, Laquan McDonald, and Tamir Rice, respectively). tion, but nonetheless call for a major overhaul of police unions. police of a major overhaul for call nonetheless tion, but designed to hold police offi police hold to designed Process: How Police Unions and Law Enforcement “Bills of Rights” Enable Police Violence and Prevent and Prevent Violence Police Enable Rights” of “Bills Law Enforcement and Unions Police How Process: Accountability in many U.S. cities have publicly come to the defense of officers accused of killing civilians, even even civilians, killing of accused officers of defense the to come publicly have cities U.S. many in wrongdoing). clear-cut officer in cases of 43400 lcb 25-2 Sheet No. 26 Side B 07/02/2021 10:34:26 B 07/02/2021 26 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 27 Side A 07/02/2021 10:34:26

, NPR (Aug. 7, 7, (Aug. NLINE

O note 235, at 993– 235, at note

. EV R supra supra

. HI C

Moran, , U. see also Their own self-interests are at stake, as evidenced evidenced as at stake, are Their own self-interests

note 232, at 759. supra supra Calls for Reform Put Minneapolis Police Union Leader in Hot Seat A Proposal for Police Reform: Require Effective Accountability Measures in note 226, at 1354–87. notes 109–193 and accompanying text; text; accompanying and 109–193 notes supra supra

at 759–66. 759–66. at If unions persist in refusing to embrace meaningful reforms, then we en- we then reforms, meaningful embrace to refusing in persist unions If they need to go further. further. to go they need Fisk & Richardson, Id. See Schaper, David Brian Mogck, Levin, In theory, police unions could be agents of reform in at least two ways. First, First, ways. two least at in reform of be agents could unions police In theory, commu- with the contact have daily who officers line the of as representatives help could unions and serve, protect whom to police supposed are the nity between and that help ensure and citizens, police relationship the improve citations and made are arrests and that wisely and prudently, used is force issued only when doing so actually improves life for the community. Second, personnel line of concerns the convey intermediaries become could to unions to management in a way that will improve policing. But to do either of those, unions would have to develop genuine and sustained enthusiasm for improving the quality of policing. For the sake of increasing police legitimacy, improving police-community re- police-community improving For the sakeincreasing of legitimacy, police 237 238 239 240 241 236 M K 1003 (advocating many of for these same strategies). Still, we believe that they can be a part of the solution. solution. the of part be a can they that believe we Still,

(June 13, 2020, 10:25 PM), https://www.npr.org/2020/06/13/876640607/calls-for-reform-put- PM), 10:25 2020, 13, (June minneapolis-police-union-leader-in-hot-seat. Police Union Contracts Condition as a Tax-Exempt of Status 26 (discussing https://lawreviewblog.uchicago.edu/2020/08/07/police-unions-mogck/ 2020), 501(i) (2018)). U.S.C. § 2021] POLICE ACCOUNTABILITY ACCOUNTABILITY 441 POLICE 2021] given missionfor their as Levin police argues, the rights supporting labor. But of unions for a host of reasons. employee public from other different unions are LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM by the backlash against the head of the police union in Minneapolis following the the following Minneapolis in union police the of head the against backlash the by from withdrawal chief’s subsequent police the and Floyd, George of killing police accounta- and “transparency increase to to seek ways union talks withcontract the bility.” dorse Brian Mogck’s proposal that federal legislation be enacted requiring effective effective requiring enacted be legislation federal that proposal Mogck’s Brian dorse for police as a condition agreements bargaining in collective measures accountability im- Congress that way the to similar status, tax-exempt their maintain to unions posedloss the of such status on racially discriminatory clubs. social Although there are examples of police unions cooperating with select policing re- policing with select cooperating unions of police examples there are Although forms, lations, and decreasing of decreasing many lations, and the social costs of policing, embrace unions should in Part II. outlined the strategies C Y 43400 lcb 25-2 Sheet No. 27 Side A 07/02/2021 10:34:26 A 07/02/2021 27 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 27 Side B 07/02/2021 10:34:26 , , M K C Y

(Nov. (Nov. 489, 493 489, 493 IMES T

, N.Y. RIMINOLOGY C This statute gives the the gives This statute

. Police Reform During the Trump Trump the During Reform Police note 94, at 50. But in September RIM ns for reform,ns for and assisting the agency C Conduct of Law Enforcement Agencies

supra ., IV , 98 J. , 98 see also see at deprives persons of rights, privileges, privileges, rights, of persons at deprives D (Apr. 29, 2017), https://illinoislawreview.org/ https://illinoislawreview.org/ 29, 2017), (Apr. IGHTS IGHTS R NLINE O IVIL IVIL

note 94, at 3; . The Politics of Policing: Ensuring StakeholderCollaboration in the EV R supra Trump’s Scrapping of Obama-Era Reforms Hinders Police Reform Police Hinders Reforms Obama-Era of Scrapping Trump’s

., L. IV

. D LL I operations, providing recommendatio providing operations, (Sept. 14, 2017), https://www.justice.gov/crt/conduct-law-enforcement-

IGHTS IGHTS R , U. USTICE J Ed Pilkington, Since 1997, the Special Litigation Section of Civil Rights Division has has Division Rights Civil of Section Litigation the Special 1997, Since (June 7, 2020, 4:00 PM), https://www.theguardian.com/us-news/2020/jun/07/ https://www.theguardian.com/us-news/2020/jun/07/ PM), 4:00 7, 2020, (June The Trump administration moved quickly to greatly reduce the use of of use the reduce greatly to quickly moved administration Trump The T IVIL IVIL ’ See See For a more in-depth discussion, see Stephen Rushin, Rushin, see Stephen discussion, in-depth more a For Kami Chavis Simmons, C EP How Trump’sHow Hands-Off Approach to Policing Is Frustrating Some Chiefs The aforementioned barriers to effective police accountability have a long his- long a have accountability police effective to barriers aforementioned The 1. Oversight 14141) § U.S.C. 42 (Formerly 12601 § U.S.C. 34 in Decrease The Trump administration’s abandonment of federal investigations and and over- investigations of federal abandonment administration’s The Trump D 245 242 243 244

UARDIAN that policing should be left to local authorities, and that the mechanism was applied applied was mechanism the that and authorities, local to left be should policing that administration. Obama the under Division Rights Civil the by overzealously (2008) (citing 42 U.S.C. § 14141 (2000)). § 14141 (2008) 42 (citing U.S.C. police-consent-decrees-trump-administration-oversight.Trump Administration The has also fundamentally altered “collaborative reform,” a voluntary program developed during the Obama U.S. Attorney General the authority to initiate structural reform litigation against a a against litigation reform structural to initiate authority the General U.S. Attorney procedural and policy, management, of the adoption mandate to police department engaged have to found been a department has decree—when consent reforms—via th . . . of conduct practice or in “a ‘pattern the United or laws of Constitution by the secured or protected or immunities States.’” symposium/first-100-days/police-reform-during-the-trump-administration/. symposium/first-100-days/police-reform-during-the-trump-administration/. in implementing those reforms.” C reforms.” in implementing those Administration Agencies Enforcement Law Local of Reform Federal G Eder Steve Services. Policing Oriented Community of Office by the managed and administration et al., 21, 2017), As https://www.nytimes.com/2017/11/21/us/trump-justice-department-police.html. originally conceived, the program “advances police reform by undertaking assessments of a law agency’s enforcement known it would Department program, significantly the scale2017, announced Justice back “the agencies. 442 442 D. Developments Troubling Recent Two to threats new serious represent that developments recent two are there but tory, all Administration Trump under the Justice of Department U.S. First, the reform. REVIEW LAW & CLARK LEWIS many far too Second, reform. police facilitating in its responsibilities abdicated but in their departments reforms innovative have championed who executives police following The unrest. of periods recent during or resigned jobs their lost either have in more detail. phenomena two these explore subsections 25.2 [Vol. LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM U.S. this statutory provision in federal investigations of local police departments, arguing arguing departments, police of local investigations federal in provision statutory this conducted nearly 70 formal investigations and entered into 40 reform agree- reform into 40 and entered investigations formal 70 nearly conducted ments. sight authorized by 34 U.S.C. § 12601 is very troubling. is very 12601 § U.S.C. 34 by sight authorized 43400 lcb 25-2 Sheet No. 27 Side B 07/02/2021 10:34:26 B 07/02/2021 27 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 28 Side A 07/02/2021 10:34:26

: Q. 163, 163, Q. OLICING P OLICE OCAL L , 18 P Joshua M. Chanin, with

NTERVENTION IN

(2005) (reporting how successfully the successfully how (2005) (reporting I

35 Ruling on Stop-and-Frisk Activities in New EDERAL Floyd ECREE ECREE F

D ., In his comprehensiveof review Civil Rights Federal Civil Litigation an Instrument as of Police Reform: ONSENT C AVIS ET AL L. 9,L. 45–60 (2016) success (reporting in curbing stop-and-frisk

C. D RIM (Nov. 8, 2018),(Nov. https://www.nytimes.com/2018/11/08/us/politics/ note 245. C

Sessions, in Last-Minute Act, Sharply Limits Use of Consent Decrees to Curb . IMES IMES T T supra supra S OBERT

R . XPERIENCE WITH A , Michael D. White et al.,,D. White et Michael HIO HIO E S , N.Y. ’ supra most policing and legal scholars view the mechanism as a vital component component a vital as mechanism the view scholars legal and policing most , 14 O See, e.g. Samuel Walker,Twenty Years of DOJ “Pattern or Practice” Investigations of Local Katie Benner, Pilkington, Compare The Trump administration’s decision to abandon federal oversight through 34 34 through oversight federal abandon to decision administration’s The Trump Former Attorney General JeffSessions has drasticallylimited the ability of federal officials enforcement law court-enforced agreements overhaul to use to Jus- the violations, rights and civil abuses accused of departments police local de- the that means move The . . . on Thursday. announced Department tice fight to officials Department Justice Obama-era by aggressively crees, used enact. to difficult be more will abuses, police Though prior research on the long-term impact of consent decrees has been been has decrees consent of impact long-term on the research Though prior 249 250 246 247 248 M K ITTSBURGH defined the basic requirements for constitutional and bias-free policing, including a including policing, bias-free and for constitutional requirements basic the defined practices.’” ‘best set of Police: Achievements, Limitations, and Questions 30 (Feb. 2017) (unpublished manuscript), 30 2017) and Questions Limitations, (Feb. Achievements, Police: http://samuelwalker.net/wp-content/uploads/2017/02/DOJ-PP-Program-Feb24.docx. however,has proved a challenge” several for cities, including Pittsburgh, PA; Washington, DC; and Cincinnati, OH). to effective police accountability. police to effective sessions-limits-consent-decrees.html.

Police Abuses NYPD). the with agreement settlement court-supervised a of the wake in abuses as the collaborative reform initiative, and reorient it toward more hands-off ‘technical assistance.’” et al., Eder P York City 163 (2014) (reporting that although consent decree reforms generate desirable outcomes duringdesirable outcomes generate decree reforms that although consent (reporting 163 (2014) dissolved, is agreement settlement the after reforms these “[s]ustaining oversight, of the period 2021] POLICE ACCOUNTABILITY ACCOUNTABILITY 443 POLICE 2021] Floyd George of killing police the of wounds the heal to efforts hampering “severely country.” the convulsing protests ongoing and the pro- practice or pattern DOJ the end, the “[i]n concluded, work, Walker Division gram has achieved significant reforms in most of the departments where consent has program the important, Most . . . achieved. were settlements other or decrees LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM The shift away from federal oversight via 34 U.S.C. § 12601 continued under At- under continued § 12601 U.S.C. 34 via oversight federal from away The shift been has move that the argue critics to some leading Barr, William General torney U.S.C. § 12601 short-circuited a critically important mechanism of external ac- external of mechanism important a critically short-circuited § 12601 U.S.C. thereby departments, police local on reforms necessary impose can that countability of citizens. rights and constitutional lives the protecting mixed, A Natural Experiment Exploring the Effects of the consent decree process worked to improve policing in Pittsburgh), policing improve to worked decree process consent Examining the Sustainability of Pattern or Practice Police MisconductReform C Y 43400 lcb 25-2 Sheet No. 28 Side A 07/02/2021 10:34:26 A 07/02/2021 28 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 28 Side B 07/02/2021 10:34:26

M K C Y (June Chris OVERNING COM . Sylvia Moir Moir Sylvia , G

UCSON and resigns/5806567002/. , T (Sept. 8, 2020, 2:29 PM), PM), 2:29 8, 2020, (Sept. ty is the firing or resignation or resignation firing is the ty (Sept. 9, 2020, 7:51 PM), PM), 7:51 2020, (Sept. 9, This troubling trend contin- trend troubling This OST Carmen Best (Seattle), Best Carmen P

. ODAY (June 8, 2020), https://www.oregonlive. https://www.oregonlive. 2020), 8, (June T ASH sign-african-american-lieutenant-chuck-

There is a long history of police chiefspolice of is history a long There , W REGONIAN Chiefs are responsible for the actions of their their of actions the for responsible are Chiefs , USA Tempe Police Chief Sylvia Moir Resigns, Will Leave Role , O Rochester Police Chief, Other High-Ranking Officials Retire Retire Officials High-Ranking Other Chief, Police Rochester note 14, at 184–86. 184–86. at 14, note Atlanta Police Chief Resigns After Officer Shoots andKills a Black MoreDozen than a Police Chiefs FacedBacklash—and Left—After Jami Resch (Portland), Resch Jami Jami Resch Steps Down as Portland Police Chief,Asks Chuck Lovell, supra supra (Sept. 15, 2020, 6:22 PM), https://www.azcentral.com/story/news/ https://www.azcentral.com/story/news/ PM), 6:22 2020, 15, (Sept. , Police Chiefs Most Open to Reform Are the Ones Leaving Ones Are the Reform Open to Most Chiefs Police Carmen Best, Seattle’s Police Chief, Resigns AfterCity Council Cuts and U. Reneé Hall Hall (Dallas). Reneé U. and YFE F

(Jan. 6, 2021), https://www.nytimes.com/2020/06/13/us/atlanta-police- (Jan. 6, , NPR (Aug. 12, 2020,6:57 AM),https://www.npr.org/2020/08/ & EPUBLIC R

. IMES IMES The aforementioned chiefs are highly regarded both inside and outside outside and inside both regarded are highly chiefs The aforementioned T RIZ

, KOLNICK In some cases, the impetus for the leadership change was a controversial Shayna Jacobs & Tim Craig, Bree Burkitt & Paulina Pineda, Alan Greenblatt, Id. S Casey Martin, Tucson’s city manager refused to accept Chief Magnus’ resignation. Carol Ann Alaimo, Yancey-Bragg, N’dea Richard Fausset et al., Maxine Bernstein, 2. Change of Agents Who Are Chiefs Police Effective of The Loss The second troubling trend for police accountabili police for trend troubling The second , N.Y. 256 257 258 259 260 253 254 255 251 252 lovell-to-be-named-chief-at-noon.html. lovell-to-be-named-chief-at-noon.html. officers, and they should be held to account for misdeeds when they occur. But the the occur. But they when misdeeds for account to be held should they and officers, com/crime/2020/06/portland-chief-jami-resch-to-re critical incident; in other cases, it has stemmed from criticism over handling of pub- of over handling criticism it from has stemmed incases, other incident; critical licprotests impending or budget cuts. 26, 2020), https://tucson.com/news/local/city-manager-says-he-will-not-accept-resignation-of- tucson-police-chief/article_601840e1-0c19-5fc1-b67e-46ea3eabcaf2.html. https://www.washingtonpost.com/nation/2020/09/08/rochester-police-resign/. in October Department Funds Department 12/901605449/carmen-best-seattles-police-chief-resigns-after-city-council-cuts-department-fun. City Manager Says He Will Not Accept Resignation of TucsonChief Police GeorgeFloyd’s Death. Here’s a List. in Custody Death Man’s into Inquiry amid https://www.governing.com/now/Police-Chiefs-Most-Open-to-Reform-Are- 2020), 17, (Aug. the-Ones-Leaving.html. https://www.usatoday.com/story/news/nation/2020/09/09/george-floyd-death-police-chiefs- Man Job Take to Lieutenant, American African 444 444 REVIEW LAW & CLARK LEWIS 25.2 [Vol. oftentimes, and incidents, controversial of the wake in or resigning being removed warranted. is change the leadership LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM Magnus (Tucson),

police circles, and it is noteworthy than many are either female, persons of color, or or of color, persons female, either are many than is noteworthy it and circles, police both. shooting-rayshard-brooks.html. local/tempe-breaking/2020/09/15/tempe-police-chief-sylvia-moir-abruptly- (Tempe). ued into the fall of 2020 with La’Ron Singletary (Rochester) Singletary La’Ron with 2020 of fall the into ued fired-resign-abruptly-retire-list/5755934002/. fired-resign-abruptly-retire-list/5755934002/. of innovative, widely respected police chiefs by city leaders. During the three-month three-month the During leaders. city by chiefs police respected widely innovative, of including were fired, or resigned 2020, 14 chiefs August June and between period (Atlanta), Shields Erika 43400 lcb 25-2 Sheet No. 28 Side B 07/02/2021 10:34:26 B 07/02/2021 28 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 29 Side A 07/02/2021 10:34:26 , 69 , 69 . 375, 423–24 (2018). (2018). 423–24 . 375,

EV R

. A We will not rehash the details details the not rehash will We , 52 G As Johnson and Johnson note: r imposing municipal liability liability municipal r imposing anges in the law can effect positive re- positive effect can law in the anges Why Defunding Police, Upping Social Budgets Budgets Social Upping Police, Defunding Why State Attorneys General as Agents of Police Reform

(Sept. 9, 2020, 9:24 AM), https://www.usatoday.com/story/ (Sept. 9, 9:24 2020, AM), https://www.usatoday.com/story/ justifications for them. Our list of the most important important of Our list the most for them. justifications

ODAY Revisionist Municipal Liability Municipal Revisionist T

, USA notes 251–258 and accompanying text. notes 242–250 and accompanying text. supra

and prevent violations of constitutional rights”; of constitutional violations prevent and Enacting federal and state legislation “conferring standing upon upon standing “conferring legislation state and federal Enacting federal in relief equitable obtain to sue to general attorneys state remedy to inagainstpolice departments jurisdiction[s] their court Abolishing qualified immunity for police in Section 1983 cases and and cases in 1983 qualified Section police for immunity Abolishing dispensingindemnification with departmental of officers they when potential the also while exploring acts, in unconstitutional engage Statutorily updating the framework fo framework the updating Statutorily lawsuits practice” and “pattern to go beyond for misconduct police rea- prevent fail to police departments in which situations to include sonably foreseeablepolicies caused harms of lack by the should that place; be in See supra See Thaddeus Johnson & Natasha Johnson, See Jason Mazzone & Stephen Rushin, Y. Cover, Avidan L.J. 999, 1050 (2020). (2020). 1050 999, L.J. x x x It is also vital that the voicesthoughtful of public servants arenot lost in this Seattle leaders like enforcement law more losing risk we Otherwise, dialogue. the for respect lack of overarching “the who cited Best, Carmen Chief Police officers, the men and women who work sohard, day in and day out,” as part of her decision to resign. The law itself is a barrier to police reform. Scholars have offered numerous numerous offered have Scholars police reform. abarrier to is itself The law 261 262 263 264 265 M K UKE of these thoughtful ideas here, but rather direct readers to some of what we consider consider we what of some to readers direct but rather here, ideas thoughtful these of the and proposals to be key includes: legal reforms Champions of police reform need to be protected from unwarranted political pres- political unwarranted from protected be to need reform police of Champions incident. a controversial to reaction a knee-jerk as rapidly build can that sure

Alone Won’t Work Won’t Alone D opinion/policing/2020/09/08/criminology-professor-former-cop-defunding-police-wont-work/ 5745784002/. 2021] POLICE ACCOUNTABILITY ACCOUNTABILITY 445 POLICE 2021] of those several chiefs disconcerting because andfirings is resignations of spate recent reform. police of supporters ardent have been LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM forms in policing beyond the use of Section 12601. use ofSection the beyond policing forms in E. Legal Considerations Considerations Legal E. ch in which ways the regarding suggestions C Y 43400 lcb 25-2 Sheet No. 29 Side A 07/02/2021 10:34:26 A 07/02/2021 29 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 29 Side B 07/02/2021 10:34:26

. . M K OS UB L.J. C Y P

, Paul , Paul , B

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. See, e.g. , 126 Y , 126 ONST C

J. that have em- that have . 885, 938–43 (2014); (2014); 938–43 . 885, UKE EV , R

to achieve valid law law valid to achieve L. Virginia v. Moore

, 12 D , 12 , necessary . 629, 664–75 (2018). (2018). 664–75 . 629, Utah v. Strieff v. Utah EV , 89 N.Y.U. , 89 R

. and LL I

, making clear that the so-called “21-foot “21-foot making that clear the so-called . 1453, 1504–11 (1993). and aligning with the law governing ci- governing law aligning the with and be subject to traditional rules of imperfect imperfect of rules to traditional subject be EV ; R The Dirty Secret Behind Qualified Immunity for Police for Immunity Qualified Behind Secret Dirty The

. 1193, 1200–04 (2020). (2020). 1200–04 . 1193, L.

Whren v. UnitedWhren v. States EV . , 2018 U. , 2018 The Supreme Court and the Illegitimacy of Lawless Fourth

AL L. C Police Indemnification Police

From Edward to Eric Garner and Beyond: The Importance of of The Importance Beyond: and Garner Eric to Edward From and and Police Reform and the Dismantling of Legal Estrangement , 66 S. , 66 Reforming the Law on Police Use of Deadly Force: De-Escalation, Preseizure , 100 B.U. , 100 Tennessee v. Garner “Raising the [s]takes of Fourth Amendment [j]urisprudence” Amendment Fourth of “Raising the [s]takes powered lawbreaking by police; by lawbreaking powered Atwater v. City of Lago Vista Lago of City v. Atwater that rein- inforce ways of police use restricting Enactinglegislation force for police officers to carry mandatory liabilityinsurance judg- so that mandatory officers carry to for police un- money taxpayer without uncollectable rendered not ments are derwriting them; vilian use of force insofar as it must be it as insofar force use of vilian enforcement goals, take into account de-escalation efforts and other other and efforts de-escalation account into take goals, enforcement rule” runs counter to it; to counter runs rule” overruling cases like pre-seizure conduct, and conduct, pre-seizure self-defense; The Feds, Lies, and Videotape: The Need for an Effective Federal Role in Controlling Police Ayesha Bell Hardaway, to force deadly of the use (prohibiting 11 (1985) 1, U.S. 471 Garner, v. Tennessee Nancy C. Marcus, Cynthia Lee, Monica C. Bell, Bell, C. Monica the constitutionality of (upholding (1996) 813 806, 517 U.S. States, United v. Whren reasonable as arrest an (upholding (2008) 171 167, 164, U.S. 553 Moore, v. Virginia failing for arrest an (upholding (2001) 354 318, U.S. 532 Vista, Lago of City v. Atwater of discovery officer’s an that (holding (2016) 2059–60 2056, S. Ct. 136 Strieff, v. Utah Joanna C. Schwartz, (June 10, 2020, 10:42 AM), https://www.bostonglobe.com/2020/06/10/opinion/ dirty- https://www.bostonglobe.com/2020/06/10/opinion/ AM), 10:42 10, 2020, (June x x 53, 84–88 (2016). (2016). 53, 84–88 Y 272 273 274 275 267 268 269 270 271 266 ’ LOBE OL a valid, pre-existing arrest warrant attenuated the connection between an unlawful stop and the thereby arrest, to incident search a during defendant the from seized evidence drug-related tree). the poisonous of the fruit the stain of of such evidence cleansing Hoffman, Hoffman, America Urban Abuse in secret-behind-qualified-immunity-police/. Admittedly, even if these steps were taken, there are there are were taken, steps these if even Admittedly, secret-behind-qualified-immunity-police/. numerous1983 shortcomings litigation to address to using police misconduct.§ (2017). 2139 2054,

Constitutional Limitations on Lethal Use of Force in Police Reform pretextual without stops examining their racial underpinnings). underlying fact that the stateAmendment despite law did not authorizeunder the Fourth an offense). the underlying a citation, for of the issuance rather arrest, but to wear a seatbelt as a reasonable Fourth Amendment seizure). Policing Amendment others). or the officer immediate threat to suspect no whofleeing poses a the escape of prevent P Self-Defense Imperfect and Conduct, G 446 446 REVIEW LAW & CLARK LEWIS 25.2 [Vol. LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM Deborah Ramirez & Marcus Wraight, Marcus & Ramirez Deborah 43400 lcb 25-2 Sheet No. 29 Side B 07/02/2021 10:34:26 B 07/02/2021 29 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 30 Side A 07/02/2021 10:34:26 , Salvato v. v. , Salvato An Empirical An Empirical And courts courts And (July 6, 2020), 2020), 6, (July

see also, e.g. see also, USTICE J ’s acceptance of mixed-motive mixed-motive ’s acceptance of . 637, 653–56 (2021) (reporting EV T OF R ’

Arreola L. EP

. D

TAN some other offense,” but the question has not , 73 S , 73 , U.S. by prohibiting pretextual stops under its state constitu- state its under stops pretextual prohibiting by ’s ban on pretextual stops to to stops pretextual ban on ’s Whren Ladson Law Enforcement Misconduct Law Enforcement , 206 P.3d 143, 155 (N.M. Ct. App. 2008). 2008). App. Ct. (N.M. 155 143, , 206 P.3d , Making it a criminal offense for a police officer to knowingly fail to to fail to knowingly officer police for a offense it aMaking criminal force. using officers fellow against excessive intervene State v. Arreola-Botello, 451 P.3d 939, 949–50 (Or. 2019). 2019). (Or. 949–50 939, P.3d 451 Arreola-Botello, v. State E.g. The stated: court The Oregon Supreme Court went so far as to hold that police violate the the violate police that hold to as far went so Court Supreme Oregon The x We are keenly aware that it is all too easy to suggest bad precedents be overruled overruled be precedents bad suggest to easy too all it is that aware are keenly We protec- afford the to constitutions state their interpret should First, state courts We do not accept the State’s arguments that our constitution, which favors an examination examination an favors which constitution, our that arguments State’s the accept not do We dis- should case, each of circumstances the under actions officers’ of reasonableness the into empower and disable the courts from examining whether an officer has an unconstitutional unconstitutional an has officer an whether examining from courts the disable and empower mean- to responsibility judicial our of abdication an be would This a stop. making for reason ingfullyreview police action, out ferret police perjury, weigh the and evidence, guard our citizens’ privacy We would rights. effect a in legitimize charade, a mockery of legal the justifications we recognize for permitting the most common of police intrusions. This we will will we This intrusions. police of common most the permitting for recognize we fications Mex- New in reasonable constitutionally not are stops traffic pretextual that hold We do. not ico. 278 276 277 M K Miley, 790 F.3d1286, 1295 (11th Cir. 2015) (holding officer was not entitled to qualified force). excessive using officer fellow a witnessed she when intervene to failing for immunity state constitutional ban on unreasonable searches and seizures by asking questions questions asking by seizures and searches unreasonable on ban constitutional state search. to for consent including of a stop, objective the to unrelated

https://www.justice.gov/crt/law-enforcement-misconduct#intervene; State v. Ochoa 1999) (Wash. 838 833, P.2d 979 Ladson, v. State 1990. in stops pretextual banned Washington of the expense expediency at a triumph of substance; form of over triumph a therefore is (“Pretext reason. But it is against the standard of reasonableness which our constitution measures exceptions to the generalwhich rule, search forbids seizure or absentwarrant. result a Pretextwithout is P.3d 290 Arreola, v. 2012. State in somewhat position that the state retreated from But reason.”). “mixed-motive”983, stops). 991 For a review (upholding (Wash. 2012) this change the effect of in case law had on police behavior, see Stephen Rushin & Griffin Edwards, Assessment of Pretextual Stops and Racial Profiling 2021] POLICE ACCOUNTABILITY ACCOUNTABILITY 447 POLICE 2021] LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM when the reality of the U.S. Supreme Court revisiting its role in contributing to to contributing in role its revisiting Court Supreme U.S. the of reality when the slim is jurisprudence Amendment Fourth the Court’s through police by lawlessness such reforms. effect to paths alternative are there Still, to none. Mexico, New civilians. all to provide to failed has Court Supreme U.S. the that tions rejected for example, tion. that the change from from change that the stops resulted in a statistically significant increase in traffic stops of drivers of color relative to violate the state’s stops traffic that pretextual in Delaware A lowerWhite drivers). held court also constitutional bar on unreasonable searches and seizures, when a stop is “made exclusively for the purpose of investigating an officer’s hunch about 2006). Ct. Super. (Del. 402 390, A.2d 929 Heath, v. State levels. higher at adjudicated been yet C Y 43400 lcb 25-2 Sheet No. 30 Side A 07/02/2021 10:34:26 A 07/02/2021 30 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 30 Side B 07/02/2021 10:34:26

M K C Y 37– (June OX OMMUNITY , V OLICING C P However, city city However, UST UST J EFORM R DC Council Passes Sweeping OLICE P ROCEDURALLY P (June 9, 2020, 4:15 PM), PM), 4:15 2020, 9, (June ILL Amendment provides according to to according provides Amendment New York criminalized the use of of use the criminalized York New , H ATHWAYS TO RINCIPLES OF P P

., . NAACP, CommonCouncil Passes Police Reform Legislation ‘Right to Know Moore

(2016), https://www.naacp.org/wp-content/uploads/2018/07/ The House Just Passed a Sweeping Police Reform Bill Reform Police Sweeping a Passed Just House The Iowa Governor Signs Police Reform Bill that Was Passed in One One in Passed Was that Bill Reform Police Signs Governor Iowa ,

T ’ EP But the Senate is unlikely to pass the bill. to is unlikely But the Senate 7–8 and and D UATTLEBAUM ET AL (June 12, 2020, 4:52 PM), https://www.cnn.com/2020/06/12/politics/ https://www.cnn.com/2020/06/12/politics/ PM), 4:52 12, 2020, (June Q (Oct. 13, 2020, 11:19 PM), http://dailyorange.com/2020/10/common- 11:19 PM), (Oct. 13, 2020, Atwater OOLKIT USTICE T J , David Stebbens, Stebbens, David , EGAN EGAN

RANGE OLITICS . P and state legislatures can enact laws curtailing a wide range of police police of wide range a curtailing laws enact can legislatures state and O , State v. Askerooth, 681 N.W.2d 353, 361–62 (Minn. 2004); State v. Bayard, 71 71 Bayard, v. State 2004); (Minn. 361–62 353, N.W.2d 681 Askerooth, v. , State

RIM See, e.g. See, Veronica Stracqualursi, E.g. C George Floyd Justice in Policing Act of 2020, H.R. 7120,116th Cong. (2d Sess.2020). Nilsen, Ella & Zhou Li AILY We are also cognizant of the fact that political gridlock in Washington, D.C. Washington, D.C. in gridlock factpolitical that of the We are cognizant also Second, to improve police legitimacy and community relations, police depart- 283 284 279 280 281 282 D , CNN: ’ , OBILIZATION Police Reforms AfterGeorge Floyd Protests democrats-senate-republicans. chokeholds, increased public access to police misconduct records, and made it a access records, public to police misconduct increased chokeholds, a to believe no reason is when there of color person a on 911 to call misdemeanor council-passes-police-reform-legislation-right-know-act/; Justin Wise, https://thehill.com/homenews/501902-dc-council-passes-sweeping-police-reforms-in-wake-of- Officers who violate such rules should be subjected to discipline. discipline. to subjected be should rules such violate who Officers House The reform. at police aimed legislation federal enact to challenging it makes of Act in Policing Justice Floyd George the passed instance, for Representatives, of afore- the of number a incorporate would law, become to it were if which, 2020, proposals. mentioned Toolkit.pdf; M Act Day iowa-police-reform-bill-trnd/index.html. P.3d 498, 502 (Nev. 2003); State v. Brown, 792 N.E.2d 175, 177 (Ohio 2003); State v. Bauer, Bauer, v. State 2003); (Ohio 177 175, N.E.2d 792 Brown, v. State 2003); (Nev. 502 498, P.3d 36 P.3d 892,895–96 (Mont. 2001);State Bricker, v. 134800, P.3d 804–08 (N.M. Ct. App. 2006). M the decisions in the decisions 448 448 protec- more provide constitutions state that their ruled statesfive have in at least the Fourth than arrests warrantless tions from REVIEW LAW & CLARK LEWIS 25.2 [Vol. LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM

councils 25, 2020, 8:50 PM), https://www.vox.com/2020/6/25/21303005/police-reform-bill-house- PM), 8:50 2020, 25, ments should adopt policies banning questionable search-and-seizure practices like like practices search-and-seizure banning questionable policies adopt ments should misdemeanors. petty for nonviolent arrest of use and widespread stops pretextual actions. In the aftermath of George Floyd’s murder, Iowa limited the use of choke- the use limited Iowa murder, Floyd’s George of aftermath In the actions. enforcement for law training de-escalation and anti-bias annual mandated holds, who police hiring of subsequent the prevent to protocols established and officers, had beenfired for misconduct elsewhere. george-floyd-protests. 39 (2018), https://policingequity.org/images/pdfs-doc/reports/principles_of_procedurally_just_ policing_report.pdf. 43400 lcb 25-2 Sheet No. 30 Side B 07/02/2021 10:34:26 B 07/02/2021 30 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 31 Side A 07/02/2021 10:34:26 , Vir- L.J. (Aug.

, N.Y. Press Release, Ralph S. Northam, S. Northam, Ralph Release, Press see s, and limits re- s, the use of neck And Virginia targeted pretextual stops stops pretextual targeted And Virginia New York State Passes Sweeping Police Reform V. CONCLUSION CONCLUSION V. (June 16, 2020), https://nysba.org/new-york-state-passes-sweeping- 16, 2020), (June The State Where Protests Have Already Forced Major Police Reform Colorado similarly banned chokeholds, overhauled the state’s state’s the overhauled chokeholds, banned similarly Colorado N ’ New Legislation Implementing Police Reform in New York New in Reform Police Implementing Legislation New SS A

. T S

In short, change is possible and the time is past due. due. past is the time and is possible In short, change (July 17, 2020), https://www.theatlantic.com/politics/archive/2020/07/police-reform- (July 17, 2020), Russell Berman, 2020). (Va. Sess. Spec. 1st Leg., 2020 5029, H.B. 2020); (Va. Spec. Sess. 1st Leg., 2020 S. 5030, Barry Kamins, , N.Y. We have outlined eight guiding principles and eight strategies that should serve serve should that eight strategies and principles guiding eight outlined have We As stated earlier, in 2020. to write this Article it is discouraging ways, In many First, policing has improved over the last 50 years. Of course, there is still much much is still there course, Of years. last 50 the over improved First, has policing 286 287 288 285 M K TLANTIC as the cornerstone of a police department’s accountability plan. There is no single is no single There plan. accountability department’s police a of the cornerstone as a compre- form they together Rather, itself. by is sufficient that or strategy principle Fergu- the next becoming avoid to department a position will that portfolio hensive value add that ingredients other be may there While or Kenosha. Minneapolis, son, the here are described pieces the we believe plan, accountability to a department’s im- primary the are believe we what highlighted also We important. critically most some thoughts on how offered and we accountability, police to effective pediments them. to overcome police-reform-agenda/. police-reform-agenda/. 3, 2020), https://www.law.com/newyorklawjournal/2020/08/03/new-legislation-implementing- 3, 2020), Krumholtz, Matthew police-reform-in-new-york; Agenda some of these principles and strategies have been in plain view for half a century. a century. half for view in plain been have strategies and principles these of some some have as decades, for drum same the been beating have scholars legal and Police for three reasons. optimistic feel we Nevertheless, leaders. police

A Virginia Governor, Governor Northam Signs Sweeping NewReform Laws to Policing in Virginia (Oct. 28, 2020), https://www.governor.virginia.gov/newsroom/all-releases/2020/october/ headline-861097-en.html. 2021] POLICE ACCOUNTABILITY ACCOUNTABILITY 449 POLICE 2021] progress. in is crime LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM re- no-knock warrants, bans law that reform police a sweeping adopted alsoginia requirements, training officer police increases of police, militarization duces the processe decertification officer strengthens the straints. by enacting legislation banning traffic stops for a range of minor infractions. minor trafficof for a stops legislation by range banning enacting use of force provisions, and in a first-of-a-kind move, created a private right of action action of right a private created move, a first-of-a-kind in and provisions, force use of room for improvement; the deaths of Michael Brown, Tamir Rice, Freddy Gray, Gray, Freddy Rice, Tamir Brown, Michael of deaths the improvement; for room others, at- among many Blake, Jacob Taylor, Breonna Floyd, George Scott, Walter and 1990, 1960, 1970, in policing than is better in 2020 policing But test to that. believe we available, not are level national the at data longitudinal Though 2000. law-colorado/614269/. law-colorado/614269/. to sue officers for acts police violence. of C Y 43400 lcb 25-2 Sheet No. 31 Side A 07/02/2021 10:34:26 A 07/02/2021 31 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 31 Side B 07/02/2021 10:34:26

, . M K in C Y , , N.Y. (2020), (2020), Many See, e.g. RIMINAL SYCHOL

P , 2018 U. , 2018 C 10

. UST J

. ONITOR ON RIM 737, 750 fig. 1 (2009) 1 (2009) 750 fig. 737, ISCRETION IN IN ISCRETION Y ’ We also believe exces- believe also We D OL , 51 M P

, 34 C . UB Protests occurred in hundreds hundreds in occurred Protests P Adopt Evidence-BasedPolicing

ONTROL OF & C 9, 11–12 (Charles M. Katz & Edward R. R. Edward & Katz M. (Charles 9, 11–12 HE The bottom line is that has there been is line The bottom e years, when police departments train theirwhen police e years, T

: continues despite efforts to curtail it. Bad Cops: A Study of Career-Ending Misconduct EFORMS R RIMINOLOGY YSTEM EY EY Not Dead Yet: The National Police Crisis, a New S K , 8 C rred a “new conversation” that amounts to “a rough national HIRTEEN HIRTEEN In plain terms, this time feels different. The momentum The momentum different. feels time this terms, In plain T What Works to Reduce Police Brutality

AMING THE : , T 31–32 (1993). (1993). 31–32

Samuel Walker, Walker, Samuel OLICE note 291, at 1790–99. 1790–99. at 291, note P Led by N.B.A.,Boycotts Disrupt Pro Sports in Wake of Blake Shooting ALKER Racial Profiling, Past, Present, and Future? W supra Zara Abrams, Abrams, Zara cf. . 1777, 1777 (arguing that despite setback in the past few years, “the prospects for for prospects years, “the that despite setback. in the past few 1777, (arguing 1777 See generally See AMUEL EV Cody W. TelepCody Bottema, & A. Johannes Walker, Marc Stein, Robert J. Kane & MichaelD. White, S and the prospects for continued police reform remain promising. remain reform police and for continued the prospects 1950–1990, at 1950–1990, (Sept. 4, 2020), https://www.nytimes.com/2020/08/26/sports/basketball/nba-boycott- 4, (Sept. R

Second, like Sam Walker, we think it is clear that the push for reform has push for has it the reform that think is clear we Walker, Sam like Second, 292 293 294 290 291 289 L.

. RANSFORMING THE IMES USTICE LL T police departments adhere to strategies that have a robust evidence base, such as as such base, evidence a robust that have strategies to adhere departments police https://www.americanbar.org/groups/criminal_justice/publications/criminal-justice-magazine/ 2020/winter/racial-profiling-past-present-and-future/. David A. Harris, A. Harris, David legitimacy policing spu in U.S. bucks-magic-blake-shooting.html. Among New York City Police Officers their use-of-force exercise 30 that police the public that although (noting (2020) perception powers in the past fiv appropriately has declined incidents force of use interventions, justice procedural and techniques de-escalation in officers decline). We note, however, profiling that racial Conversation About Policing, and the Prospects for Accountability-Related Police Reform I of crisis the because alive” remain future the immediate in efforts reform police continued 2020). eds., Maguire T (showing that annual misconduct separations peaked in the mid-1980s and have been on decline decline on been have and the mid-1980s separations in that annual misconduct peaked (showing since then); reached a tipping point. a tipping reached J 450 450 ago. years 50 than now people fewer kill and shoot police REVIEW LAW & CLARK LEWIS policing. and hot-spots problem-oriented progress is both mad- this For many, improvement. incremental albeit substantial, we position; against argue that not do enough. We not nearly and slow deningly things have that to recognize important is it do think we But wholeheartedly. agree 25.2 [Vol. horizon, the on are advancements further believe to is reason there and better gotten optimism. for reason our second to us leads which LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM

sive use of force and other forms of misconduct occur less now than they did in the the in did they than less now occur misconduct of forms other and force of sive use past, for police reform is unprecedented. Following the shooting of Jacob Blake in Ke- in Blake Jacob of shooting the Following unprecedented. is reform police for football, in basketball, athletes professional 23, 2020, on August nosha, Wisconsin, games. their boycotted hockey and tennis, baseball, consensus about needed police reforms”). reforms”). police needed about consensus 43400 lcb 25-2 Sheet No. 31 Side B 07/02/2021 10:34:26 B 07/02/2021 31 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 32 Side A 07/02/2021 10:34:26

,_2020 ion There are are There cities ALLOTPEDIA _ , B (June 23, 2020), 23, 2020), (June largest EWS EWS N

_100_ and These reforms have out- have reforms These , AP _ Changes to Policing Policy in the states _ the _ in _ Portland Police Arrest Over 50 People on 100th 100th on People 50 Over Arrest Police Portland policy _ note 296. Which States Are Taking on Police ReformAfter George , CNN (Sept. 6, 2020, 5:09 PM), https://www. https://www. 5:09 PM), 6, 2020, , CNN (Sept. Changes to Policing Policy in the States and100 Largest Cities, policing supra supra _ , to _ At the time of this writing, federal opposing the At legislation developed by (June 18, 2020), https://www.themarshallproject.org/2020/06/18/ https://www.themarshallproject.org/2020/06/18/ 2020), 18, (June

note 297; supra supra ROJECT P note 296. Implementation of improved recruitment, hiring, and promot and hiring, recruitment, improved of Implementation practices; Enhancement of police leadership and culture (“embracing proce- (“embracing culture and leadership of police Enhancement practices, policies, informs that principle a as guiding justice dural and training”); Development of national standards for discipline and termination of of termination and discipline for standards national of Development officers; Creation of a police decertification officer database; Mandatory participation in the National Use of Force Database; Database; Force of Use National the in participation Mandatory Adoption of the National Consensus Policy on Use of Force (which (which of on Use Force Policy Consensus of the National Adoption a duty and focus a on de-escalation, mandate, a protect-life includes to intervene); A Side-by-Side Look at Police Reform Bills in Congress ARSHALL Weihua Li & Humera Lodhi, Li & Lodhi, Artemis Moshtaghian & Eric Levenson, Changes to Policing Policy inStates the and 100 Largest Cities,2020 supra supra x x x x x x , M There is also momentum within the police profession to institutionalize re- institutionalize to profession police the within momentum also is There , 297 298 295 296 M K which-states-are-taking-on-police-reform-after-george-floyd; They call for an enhanced focus on de-escalation, require that officers report the that officers report the require on de-escalation, focus anfor enhanced They call rec- disciplinary officer police open intervene), to (duty colleagues their of misdeeds and functions away the police, scrutiny, shiftords to public from non-crime some force. of use police investigate to agencies independent create cases, in some Floyd? ConsecutiveNight of Demonstrations cnn.com/2020/09/06/us/portland-protest-100-days/index.html. https://ballotpedia.org/Changes (last visited May 26, 2021). 2020 the Democrat-led House of Representatives and Republican-led Senate have both stalled. Michael Michael stalled. both have Senate Republican-led and Representatives of House the Democrat-led Balsamo, https://apnews.com/article/cb459fa005a19b074f452ac1092b6d04. https://apnews.com/article/cb459fa005a19b074f452ac1092b6d04. 2021] POLICE ACCOUNTABILITY ACCOUNTABILITY 451 POLICE 2021] days. consecutive than 100 for more likePortland, some, U.S. cities, of LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM legislative reforms at the local, state, and federal level. federal and state, local, the at reforms legislative forms. The International Association of Chiefs of Police released a “Policy Frame- a “Policy released Police of Chiefs of Association International The forms. centers on seven key which Engagement,” Community-Police Improved work for here: identified strategies and principles the reflect that initiatives policy

lawed controversial police practices such as chokeholds and no-knock warrants. no-knock and as chokeholds such practices police controversial lawed States and 100 Largest2020 Cities, C Y 43400 lcb 25-2 Sheet No. 32 Side A 07/02/2021 10:34:26 A 07/02/2021 32 Side Sheet No. lcb 25-2 43400 43400 lcb 25-2 Sheet No. 32 Side B 07/02/2021 10:34:26 , M K C Y HIEFS HIEFS C N ’ SS A L ’ Model Policy and (June 4, 2020), 4, 2020), (June NT , I OLICE P HIEFS HIEFS C N ’ key principles and strategies, such as and strategies, such as principles key SS A tment as outlined in the tment as outlined L ’ times imposed by unions and civil civil and unions by imposed times NT , I

Garland “pledged to reinvigorate” the role of the U.S. U.S. the of role the to reinvigorate” “pledged Garland But the momentum for change seems overwhelming. The The overwhelming. for change seems momentum But the of unbiased, equitable trea of unbiased, equitable (Mar. 10, 2021, 11:47 AM), https://news.bloomberglaw.com/us-law- AM), 11:47 10, 2021, (Mar. . 833, 834 (2020). (2020). 834 . 833, Merrick Garland Wins Senate Approval, Opening Biden Era at DOJ at Era Biden Opening Approval, Wins Senate Garland Merrick EEK ULL W B

and Police Liability for Youth Homicides Before and After the DeathMichael of L.

paper and adoption of an early identification system, can be found on the IACP . Community-Police Engagement U.S. RIM

Expansion of police agencies’ ability to implement effective disci- effective to implement ability agencies’ of police Expansion some barriers the (addressing pline service contracts).

See Chris Strohm, Id. For an examination of some of the most controversial police killings—those involving IACP Policy Framework for Improved Community-Police Engagement , https://www.theiacp.org/sites/default/files/IACP%20Policy%20Framework%20for%20 , 56 C x Third, respected jurist Merrick Garland was confirmed by the U.S. Senate as as Senate U.S. the by confirmed was Garland Merrick jurist Third, respected We acknowledge there is a long history of controversial police killings leading leading killings police controversial of history a long is there acknowledge We

300 301 302 299 LOOMBERG OLICE Department of Justice in civil rights enforcement “and is expected to revive ‘pattern- revive to expected is “and rights enforcement in civil Justice of Department Section under departments” police by abuses potential into inquiries or-practice’ 12601. to failed efforts at police reform, as the barriers to effective accountability have been been have accountability to effective barriers the as reform, police at efforts to failed past. too strong in the problems The areare known. solutions The known. barriers are breaking down, and now greater is accountability police improve to reform meaningful for potential the before. than ever the Attorney General shortly after the Biden administration assumed executive lead- executive assumed administration the Biden after shortly General the Attorney States. United of the ership

https://www.theiacp.org/resources/document/community-police-engagement. https://www.theiacp.org/resources/document/community-police-engagement. B juvenile victims—and Delores the attendant accountability, et al., lack see Jones-Brown police of P Improved%20Community-Police%20Engagement.pdf (lastDetails visited May 26,2021). about implementing these recommendations, as well as other adherence principles to the Concepts & Issues Concepts website. 452 452 REVIEW LAW & CLARK LEWIS 25.2 [Vol. LCB_25_2_Art_2_White_Fradella&Flippin Delete)(Do Not 11:37 6/14/2021 AM week/bidens-pick-garland-is-confirmed-by-senate-as-attorney-general. Hernández v. Mesa Brown 43400 lcb 25-2 Sheet No. 32 Side B 07/02/2021 10:34:26 B 07/02/2021 32 Side Sheet No. lcb 25-2 43400