Devon W. Carbado, Predatory Policing, 85 University of Missouri Kansas City Law Review 545 (Spring, 2017) (83 Footnotes Omitted) (FULL ARTICLE)
I was delighted to have the opportunity to deliver the annual Joseph Cohen Lecture at the University of Missouri-Kansas City (UMKC) School of Law. In the context of that lecture, I highlighted some of the important factors that contribute to police violence against African-Americans. More precisely, I offered a structural framework that explains black peoples' historical vulnerability to police violence. Six dynamics comprise the framework.
1. A variety of social forces (including broken windows policing, racial stereotypes, racial segregation, and Fourth Amendment law) converge to make African-Americans vulnerable to ongoing police surveillance and contact.
2. The frequency of this surveillance and contact exposes African-Americans to the possibility of police violence.
3. Police culture and training encourage that violence (mostly implicitly) and police unions essentially defend it or acquiesce in it.
4. When police violence encounters the legal system, legal actors in civil and criminal processes (for example, prosecutors, judges, and juries) convert that violence into justifiable force.
5. A messy and convoluted body of constitutional law--qualified immunity doctrine--makes it difficult for plaintiffs to win cases against police officers, and when plaintiffs do win such cases, local governments indemnify the police officers in the sense of paying the monetary damages. Police officers pay nothing. Moreover, when plaintiffs attempt to hold police departments (and not just individual officers) liable, several legal obstacles make it difficult to them to do so.
6. The conversion of police violence into justifiable force, the qualified immunity barrier to suing the police, and the frequency with which cities and municipalities indemnify law enforcement, combine with the difficulties of holding police departments liable, to send a message of non-accountability to rank-and-file officers on the beat: You will suffer no legal or financial consequences for your acts of violence. The promulgation of that message potentially discourages police officers from exercising care with respect to when and how they deploy violent force.
The image below, Figure 1, attempts to capture the preceding points schematically.
If Figure 1 creates the impression of a system of interconnecting parts, each one contributing to the police violence problem, you already have a sense of what it means to say that police violence against African-Americans is a structural problem.
Before I proceed to lay out the scope and organization of this essay, a caveat about the framework is in order. The framework I have described does not purport to be a complete explanation for police violence against African-Americans. No single framework could do that. Nevertheless, and as my colleague Gary Blasi observes, while structural accounts of social phenomena "may not capture all that exists, ... ignoring structure risks missing nearly everything." My hope is that the structural framework I offer makes clear that the problem of race and police violence transcends the conduct of particular police officers engaging in discrete acts of violence against individual African-Americans. Searching for and punishing "bad cops" is not going to solve the race and police violence problem.
Am I saying, therefore, that we should abandon all efforts to ferret out "bad cops"? No. Think, for example, about Daniel Holtzclaw's systematic targeting of, and sexual violence against, black women. In December of 2015, a jury convicted Officer Holtzclaw of eighteen counts of sexual assault, including rape, forcible oral sodomy, and sexual battery. A judge subsequently sentenced him to 263 years in prison. The police violence world would have been smaller had Holtzclaw not been in it--and more than a dozen black women would not have been harmed by his sexual violence.
But eliminating all the Holtzclaws of the world would not end police violence against African-Americans. "Good cops" seriously injure and kill black people as well. That is why the framework this essay proposes includes, but is not limited to, an analysis of the racial motivation of individual police officers. The racial motivation of individual cops is just one dimension of the thin blue line between police contact and police violence. My police violence framework highlights the others.
For a full articulation of the framework, I refer you to my article Blue-on-Black Police Violence: A Provisional Model of Some of the Causes. This essay zeroes in on two dimensions of Point 1 of the framework, neither of which I sufficiently discussed in my Cohen Lecture: "mass criminalization" and "predatory policing." Definitions are in order. By mass criminalization, I mean the criminalization of relatively non-serious behavior or activities, and the multiple ways in which criminal justice actors, norms, and strategies shape non-criminal welfare state processes and policies, including the governance and administration of schools. By predatory policing, I mean the direct targeting of vulnerable groups by way of arrests, the issuance of citations, or the use of civil asset forfeiture to effectuate promotions and pay increases for particular officers or generate revenue for the city or the police department. My thesis, in a nutshell, is that predatory policing works in conjunction with mass criminalization to facilitate not only the surveillance, social control, and economic exploitation of African-Americans but also their arrest, incarceration and exposure to police violence. I begin with a discussion of mass criminalization.
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My purpose in this essay was twofold: (1) to provide a structural framework that identifies some of the causes of police violence against African-Americans; and (2) to explain how predatory policing and mass criminalization fit into that framework. A crucial insight of the framework is that repeated police contact facilitates not only surveillance, social control, and economic exploitation but also arrest, incarceration, and violence. To put the point another way, the "frontend" problem of frequent police contact is often the prelude to the "backend" problems of arrest, incarceration, and violence. At a minimum, my framework suggests that we cannot solve African-Americans' vulnerability to mass incarceration and police violence (aspects of our criminal justice system Americans generally view as extraordinary and unnecessary) unless we also solve African-Americans' vulnerability to police surveillance and contact (aspects of our criminal justice system Americans generally view as ordinary and necessary).
The Honorable Harry Pregerson Professor of Law, University of California, Los Angeles (UCLA), School of Law; Associate Vice Chancellor, UCLA, BruinX.