⚖PART V: FIX OR FIRE. Make a Department Change Its Culture to Save Itself from Us.
No more doing it the other way around.
Here are fast and simple things you can do without ever leaving your chair.
ONE: LEARN TO SPOT THE MISDIRECTION.
Before we can do anything, we have to re-map our thinking:
The DEPARTMENT cares about the officer because the officer’s performance controls the department’s liability. Do not be dragged down that dark hole as well. Keep your focus locked and loaded on the entity that owes your community a duty.
We can maintain the proper focus by learning to spot when a department or government moves the focus. Then, all we have to do is return the focus back to where it belongs. Let’s walk through both.
“BREECH BIRTH DEFENSE”: HOW LEADERSHIP CHANGES THE FOCUS. By now, you should appreciate that the overwhelming majority of policing defects are put in motion before an officer steps foot on a scene. Still, when faced with a catastrophic policing event, departments and mayors engage the public as if two things — and only two things — are of import in getting to the bottom of things:
(1) the involved member of the public; and,
(2) the fault.
“The fault” is one of two things. If the officer appears wrong on early blush, “the fault” is discussed as the officer. If the officer does not appear at fault on early blush, “the fault” is discussed as the event itself (i.e., “an unfortunate series of events”).
Notice what is conspicuously missing? That is correct: the department itself, and it always will be. It is as if Sally awakened one day, decided to be a police officer, donned a uniform, and — magic wand — here we are. The department may not be a reasonable topic of discussion at event onset, but you will eventually come to notice that it is never — ever — mentioned. Again, it focuses exclusively on the involved party, the event and the officer.
Let’s spend a minute on the significance. When a department does this, it is taking the public through its own internal investigation. That investigation of the department’s potential liability to involved parties and officer’s potential culpability, is helpful. As it relates to the public, however, this episodic review is not where a department’s duty ends, as we are taught to believe; it is where a department’s duty begins.
A department conflates its liability and culpability assessment with what should be an assessment of its duty to the public, and they are far from one in the same.
The liability and culpability assessment is the entire inquiry about whether an officer performed improperly during an event. The answer determines whether the department is exposed to civil liability and whether the officer is exposed to culpability (discipline or criminal charges).
In assessing whether the department has met its duty to the public, the liability and culpability outcome is but one question on a list of many. Duty is its own universe, and that assessment concerns itself with whether a department has taken sufficient steps to put competent agents in the streets.
Do you see how a liability assessment is too small to answer that question? And how it only concerns itself with the involved party, the event and the officer’s conduct?
Do you see how a duty assessment also proves up a department’s policing culture? And how it only concerns itself with the department’s conduct? The officer’s conduct shrinks into its more appropriate role. It is a mere indicator of the culture a department — by supervision or non-supervision — has established.
The episode raises the alarm. It warns the public that a department may be failing in its owed duty. When given its proper weight, it cannot possibly provide the answer on its own. Yet, for decades, the public has considered liability and culpability only. For decades, the public has been looking the wrong way.
That is what I privately refer to as a “Breech Birth Defense” or “BBD.” A breech birth is when a baby dangerously presents for delivery bottom- or feet-first. A breech baby travels the birth canal backwards and can get stuck and strangle. Applying that to policing, when a catastrophic event occurs, the event spokesperson begins the narrative at the wrong end — the event — and goes forward.
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To change the police culture, you must change the culture makers. CULTURE=CULTURE MAKERS.
≅PART I. OUR RELATIONSHIP IS WITH THE DEPARTMENT.
≅PART II. THE DEPARTMENT MUST (AND CAN) CORRAL THE POLICE.
≅PART III. A DEPARTMENT DOING ITS JOB NEUTRALIZES THE UNION.
≅PART IV. YOUR SERGEANT, LIEUTENANT, CAPTAIN, MAJOR, & DEPUTY NON-ACCOUNTABILITY IS KILLING A PEOPLE.
≅PART V. FIX THEM OR WE FIRE THEM AND YOU.
He who suffers the consequences is motivated to drive the change. CONSEQUENCES=CHANGE.
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A BBD PLAYS OUT like this. A catastrophic policing event occurs. The officer’s department engages the public.
We will use the March 29 shooting of Adam Toledo by the Chicago Police Department (“CPD”) as our case study.
FIRST, city leadership begins this narrative at the facts necessary to justify its officer’s actions, and goes from there.
GOING FORWARD, leadership focuses on the facts that help decide the law. What did the suspect do? What did the officer believe? Why did he reach for his gun? What could he see? What did he tell the suspect to do? Did the suspect comply? What could he not see but should have, or should have reasonable anticipated?
FINALLY, the leadership focus snaps back to somewhere around when the subject’s parents met. After the spin, a department (and, shamefully, the media) springs back to the subject, and often to the first bad thing she or he ever thought about doing: 17 year-old Trayvon Martin texted about guns, pot and cutting class; 12 year-old Tamir Rice’s PARENTS had criminal histories; Botham Jean had pot in his apartment. And, of course, 13-year old Adam Toledo was out and parentless at 2:30a.m.
In the end, we come to see The Entire Problem as how police behaved in the moment. It is not.
In the end, we are lulled into focusing on the legal standard as the litmus test exclusively. It is not our test.
In the end, we are taught to think that prior bad behavior plays a role in shoring up case loose ends and grey areas. It does not.
And that is why, in the end, we are wrong.
“EXTERNAL CEPHALIC”: HOW TO STOP A BREECH BIRTH DEFENSE.
TO STOP A BREECH BIRTH DEFENSE, TURN THE BABY AROUND. Doctors correct breech positioning through a procedure called external cephalic. “External cephalic” simply means turn the head around from the outside.
Turn the head around. Focus everything — your energy, your questions, your demands — on what the BBD masks from the public: that dark space in the middle, from what SUPERVISORS have done with involved officers from their date(s) of hire through the date of the event. Turn the head around and begin at the beginning — get answers to the Fix or Fire Five:
1. How did your officers apply the department’s policies and training?
2. How did their first-line supervisors assess how officers applied those policies and that training?
3. How were any defects documented and disciplined?
4. How did senior supervisors assess their subordinate supervisors?
5. How were any subordinate supervisor defects documented and disciplined?
Turn the head around — focus on the department, not how police behaved in the moment. That is simply a manifestation of a bigger problem. Did a department take sufficient steps to put competent agents in the streets? Did officers apply the department’s policies and training? Did the department assess that application?
Turn the head around — focus on the department. Do not be locked into assessing the legal standard for the event. The law is about the liability and culpability; performance and training oversight are about a department’s duty to the public. We want a department’s duty to the public.
Turn the head around —focus on the department. When we are thinking about prior behavior, what are we not thinking about? Prior bad behavior has no bearing on the public’s concern on whether a department put competent agents in the streets. For that matter, it has no bearing on the department’s concern either.
We have to develop new muscle memory here, so turn the head around. Bad performance is not always a manifestation of bad supervision, but bad supervision always manifests through bad performance. Let the system handle the officers, you handle the bosses. Start with looking at what a department puts in the streets, not what happens once it gets there.
TWO: IF THE PUBLIC WANTS LEADERSHIP TO DO SOMETHING, LET’S GIVE THEM MORE THAN ENOUGH TO DO.
The public can afford to be even more vigilant about demanding a department “fix or fire.”
First, we can amplify this series by putting it in front of the people in our individual communities who can move this, or who must answer the Fix or Fire Five:
1. How do your officers apply the department’s policies and training?
2. How do their first-line supervisors assess how officers apply those policies and that training?
3. How are any defects documented and disciplined?
4. How do senior supervisors assess their subordinate supervisors?
5. How are any subordinate supervisor defects documented and disciplined?
That includes, for example, your local mayor, police chief, media member, community member, outreach organization, police unions, civil rights agencies, activist churches, or representatives in local, state and federal government.
Next, file a complaint with a police department every single time you witness or are involved in an event where policing is unjust. File even though others will file as well — the more the better. File regardless of whether the event is big or small. You are doing what is called “creating a record” or paper trail of problems to take “we did not know” off of a police department’s list of defenses. You are also giving leadership a path to supervisors whose performance they may have to one day review.
There is no excuse. If you have a phone, you can make a WRITTEN complaint. If you cannot get information on the official report method, send an email. Include the time and date and street and description of the event.
As to the involved officers, do not bother with names if you cannot get them — get the unit number and/or the plate number instead. You can also note personal descriptions of the involved officers. Any of that can be back-traced by a department.
As to the involved department, if you get resistance, make your complaint out to the Chief, and copy the person who represents you in your state, the person who represents you in Washington D.C., and five or six local media outlets. Make it clear that you tried to submit a complaint. Provide the name, date, time, phone number and/or email addresses of those who acted as obstacles.
The public can also help motivate POLICE DEPARTMENTS and MAYORS. Based on various news reports, these departments: (1) might consider proactively making changes as national flagships; or (2) have experienced problems suggesting an exigent need for a police culture change.
Here is a link for this article, and text you can include:
FIX OR FIRE FIVE. Do you oversee the way your police officers APPLY THEIR TRAINING? Tell us how; we want police accountability NOW. There is no such thing as a “bad apple.” https://medium.com/@title42usc1983/part-iv-fix-or-fire-what-the-public-media-police-depts-mayors-and-biden-administration-can-do-be7b117edd19/#5efd
Here are suggested departments and people to contact:
Ferguson Police Department. “Ferguson Mayor Ella Jones on Making History, Honoring Michael Brown’s Legacy, and the Power of Black Female Leaders.”
· Chief of Police Jason Armstrong: Email.
· Mayor Ella Jones: Twitter; Facebook (friends of).
Portland Police Bureau. “City of Portland launches outside review of potential bias in its PD.”
· Chief of Police Chuck Lovell: Twitter; Facebook.
· Mayor Ted Wheeler: Twitter; Facebook.
Windsor Police Department. “Attorneys for Black Army officer threatened by police criticize response as chief refuses apology.”
· Chief of Police Chief Rodney Riddle: Facebook.
· Mayor Glyn Willis: Facebook.
You can also help to motivate THE MEDIA. These media members and analysts engage on this issue and/or challenged departments on their “hands tied” narrative. If enough of us reach out, and blow their Twitter feeds up, this might get their attention. Just imagine how the world changes if they do a full-court press here.
This link takes them directly to the media suggestions below. I have included text for your use, if you need it. Just highlight, select the Twitter bird from the popup menu, and take it from there.
FIX OR FIRE FIVE. Do departments oversee the way their officers APPLY THEIR TRAINING? We want police accountability and we want it NOW. There is no such thing as a “bad apple.” https://medium.com/@title42usc1983/part-iv-fix-or-fire-what-the-public-media-police-depts-mayors-and-biden-administration-can-do-be7b117edd19/#5efd
· Sara Azari, Brown White & Osborn, LLP
· Keisha N. Blain, MSNBC Opinion Columnist
· Stephen Cobert, The Late Show
· Charles F. Coleman Jr., Former Prosecutor and Civil Rights Analyst
· Brittany Packnett Cunningham, MSNBC Contributor, Brittany Packnett
· David Henderson, Civil Rights Attorney
· Jami Hodge, former Assistant U.S. Attorney
· Redditt Hudson, co-founder of the National Coalition of Law Enforcement Officers for Justice Reform and Accountability
· Joshua Johnson, This Week with Joshua Johnson
· Brett Meiselas, Meidas Touch
· Alicia Menendez, American Voices
· Trevor Noah, The Daily Show
· Joy Reid, MSNBC
· Rashad Robinson, Color of Change
· Rev. Al Sharpton, Politics Nation, Al Sharpton
· Joyce Vance, U.S. Attorney, N. D. Alabama
· Nicole Gonzalez Van Cleve, Brown University
· Maxine Waters, House Representative (and my personal SHERO!!!), Maxine Waters
THREE: THIS IS WHAT THE MEDIA CAN DO TO HELP MOVE DEPARTMENTS.
You can do a full-court press on their leadership, with a different kind of specificity.
- Read the full series.
- Read the Department of Justice, Civil Rights Division, Special Litigation Section Springfield Police Department Findings Letter, Deficiencies in Basic Department Operations Contribute to the Narcotics Bureau’s Pattern or Practice of Excessive Force, pages 19 through 27. It is the perfect primer on department supervision, and will help you focus scrutiny with precision. The letter focuses on excessive force, but the model applies to all deficiency types.
- Lock leadership in on the Fix or Fire Five.
FOUR: THIS IS WHAT THE BIDEN ADMINISTRATION CAN DO.
The Civil Rights Division Special Litigation Section should solicit public input within 24 hours of a catastrophic policing event.
The Department of Justice (“DOJ”) Civil Rights Division, Special Litigation Section (“SPL”) maintains data on policing hotspots. It has performance markers against which to compare data. The one thing it does not have is real-time data on catastrophic events. It can and should deploy a means for citizens to contact the federal government by phone, electronic device, or hard mail. That data will yield an immeasurable bounty:
A catastrophic event rapid-deployment webpage would re-center the community as its own outcome evaluator, precisely as it should be. Communities are not distractions. Communities are not incidental. Communities are not pure information sources. Communities are owners of their discrete slice of Americanism. Let the community tell you the job and the deliverables.
A catastrophic event rapid-deployment webpage would draw in outside help faster. Collected data can support a potential “§14141 investigation.” So named under its previous codification 42 U.S.C. §14141, a §14141 investigation considers whether a department deprives people of their Constitutional safeguards as a matter of routine. The now transferred provision reads:
Data collection would streamline and then fast-track a §14141 analysis. SPL is exceedingly well-organized and pro-active. In cases where data is the last hurdle to a §14141 investigation, a real-time up or down can be dispositive.
A catastrophic event rapid-deployment webpage would be a rich data source for any data trending sample you want to compare: agency, event type, location, lethality, race are just a few. It is a rich data source for comparison points over time as well. Best here is that once the government has a stable design structure, event specific web collection can begin in days.
Setting up catastrophic event rapid deployment web collection to fire by episode sounds fancy; however, it is not particularly difficult. What few know of me is that I am a software engineer. I converted government funding requirements into quantifiable data variables, developed and coded corresponding data systems, and linked prison stand-alone software to real-time out-of-prison networks for data sharing, analysis and reporting. The non-square version of the story is that after the base system is built, creating branches for each event is akin to adding a new collection variable and “flipping” a series of collection switches.
Soliciting rapid deployment data will require safeguards, but none are insurmountable. To protect the integrity of event investigation, discourage them from sharing that information. To contextualize the event, encourage them to share any experience — positive or negative — with practices of that involved department.
Leadership can only run with the lone wolf / bad apple narrative if we let them. Officers are not innocent here, but the apples riding desks are holding their reins. Demand that Mayors and Chiefs supervise their supervisors until we get the culture to which all members of our country are entitled.
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Be the force motivating the driver,
Before you engage me or others, here are a few things to keep in mind:
Catherine Pugh is an Attorney at Law and former Adjunct Professor at the Temple University, Japan. She developed and taught Race and the Law for its undergraduate program, and Evidence, Criminal Law, and Criminal and Civil Procedure for its law program. She has worked for the Department of Justice, Civil Rights Division, Special Litigation Section, and was a Public Defender for the State of Maryland. View her Race and Profiling Lecture Series appearance here. The view expressed here are personal. Nothing in this or any Medium writing is a legal recommendation, legal advice, or a legal opinion.
To my sweetest of loves: I am the wall for them; you are the wall for me. And nothing — nothing — has ever gotten past you. You are my everything. #CubanKitchen.
“It takes the wisdom of the elders . . .” Thank you for teaching us, loving us, leading us all: Mary Stovall Davis Budd, Andrea Tucker, Lorenzo Pugh, Dorris Pugh, Jacqueline Wallace, Roger Wallace, Kenneth Davis, Sandra Davis, and Karen Davis.
Keywords: racism, police misconduct, police accountability, police reform, society, culture, leadership.
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