Abstract
Excerpted from: Devon W. Carbado and Patrick Rock, What Exposes African Americans to Police Violence?, 51 Harvard Civil Rights-Civil Liberties Law Review 159 (Winter 2016) (112 Footnotes) (Full Document)
The recent, well-publicized tragic deaths of African Americans at the hands of police officers have generated a public debate about race and policing. This is not the first time police violence against African Americans has been the predicate for a nationwide conversation about race. Likely, it won't be the last.
Yet, for all the discussions we have had about race and excessive force over the past decade, our understanding of the phenomenon has not much improved. In part, this is because we continue to frame excessive force as a problem that derives from rogue police officers who harbor racial animus against African Americans. That some police officers employ excessive force as a means through which to express racial animosity is undoubtedly true. But, to lump all, or even most, police officers in that basket obscures the structural dimensions of police violence and ignores significant empirical evidence from the field of social psychology suggesting that conscious racial animosity likely only accounts for a small percentage of racially-motivated conduct. This Article draws on that evidence. More specifically, the Article applies a range of findings from social psychology to empirically ground important dimensions of a theoretical model one of us developed to explain the persistence of police violence against African Americans. Six features comprise the model:
At Point 1, the following variables converge to render African Americans vulnerable to repeated police interactions: (1) Proactive policing, including "broken windows" policing (this directs police officers to focus on "high crime areas" and low-level signs of disorder); (2) Mass criminalization (this criminalizes relatively non-serious activities and facilitates the diffusion of criminal justice actors and practices into other dimensions of the welfare state, including schools and public benefits offices); (3) Racial segregation (this both concentrates African Americans in "high crime areas" in which entire communities are criminally suspect and makes African Americans "out of place" and thus suspicious when they are not in predominantly black areas); (4) Racial stereotypes of African Americans as criminally inclined (these render African Americans hyper-visible to the police as presumptively persons of interest); (5) Group vulnerability (this increases the likelihood that the police will target African Americans, particularly those who are marginalized both inside and outside of the black community (for example, LGBTQ people), because vulnerable groups are less likely to report instances of police abuse and less likely to be believed or to engender public sympathy when they do); (6) Revenue generation (this encourages the police to arrest or issue citations to members of vulnerable groups as a mechanism to raise revenue for the city or the police department or to effectuate promotions and pay increases); and (7) Fourth Amendment doctrine (this area of law is supposed to protect African Americans from unreasonable searches and seizures but instead enables ongoing contact between African Americans and the police). The convergence of the foregoing factors subjects African Americans to repeated police interactions.
At Point 2, repeated police interactions create a risk of police violence exposure. There are a number of reasons for this. First, the simple fact of repeated police interactions overexposes African Americans to the possibility of police violence. Second, the fact that African Americans' exposure to the police occurs against the background of stereotypes of African Americans as violent and dangerous increases the likelihood that police officers will interact with African Americans from the perspective that violent force is both necessary and appropriate. Third, the more exposed African Americans are to the police, the greater the probability that they will be arrested. This is important because an arrest--being handcuffed and placed in the back of a patrol car--increases the ood that an officer will use force.
Fourth, black peoples' repeated exposure to the police potentially increases their incarceration rates or facilitates some form of system involvement, and the incarceration and system involvement of African Americans likely mediates how police officers interact with black people. Which is to say, police officers who interact with a black person on the assumption that that person has had some prison/jail experience, or is under some form of criminal justice supervision, are less likely to exercise care with respect to how they engage the person, less likely to be rights-respecting in the interaction, and more likely to employ aggressive or violent policing.
Fifth, the more numerous African Americans' contacts with the police are, the more vulnerable African Americans are to a set of violence-producing insecurities or vulnerabilities police officers experience in the context of police encounters. For instance "masculinity threat," is an officer's sense that his masculinity is being undermined or challenged during an interaction. Other things being equal, officers who experience this threat are more likely to employ violence than officers who do not. People who have multiple interactions with the police are more exposed to police insecurities, like "masculinity threat," than people who do not.
Sixth, and finally, African Americans' ongoing experiences with the police may cause them to confront or resist police authority, assert rights, or flee upon seeing or encountering the police, each of which can precipitate police violence.
• At Point 3, police training, culture, and administrative discipline mechanisms potentially contribute to police violence. The point here is that police violence is a likelier outcome when officers are poorly trained, work in cultures that promote violence, and suffer no administrative sanctions for their acts of violence.
• Points 4 and 5 highlight plausible interactions between police violence and the legal system. Point 4 reveals that, in both the civil and the criminal context, police violence can be rendered a justifiable use of force. This outcome potentially fosters police violence by diminishing the risk of legal sanction police officers assume when they employ violent force.
• Point 5 focuses on the civil process, noting first that the doctrine of qualified immunity insulates police officers who engage in violent conduct from civil liability. Point 5 also makes clear that even when police officers are found civilly liable, or when their cases are settled, cities and municipalities almost always indemnify the officers who therefore suffer no financial liability.
• At Point 6, the combined effects of Points 4 and 5 produce a disincentive for police officers to be careful. If police officers know that their violent conduct will be considered justifiable force, or that they will be immune from civil liability or indemnified if they are found civilly liable, they are less likely to exercise care with respect to when and how they employ violent force.
This article focuses on Point 2 of the model, the police violence exposure dynamic. Before we describe the precise contours of this dynamic, we should say a few words about the racial and gender parameters of our analysis. First, though the description of the model we have provided is grounded in police interactions in which the officers are white and the civilians are black, the theoretical reach of our argument transcends this identity configuration. Parts of the model apply to police officers who are not white and to people of color who are not black. Though we do not discuss those dynamics in this Article, we want to be clear that police violence is a problem for other communities of color and that police officers of color are implicated in the problem.
Second, our examples focus specifically on black men's experiences with the police. To make clear that black women are victims of racial profiling and police violence, one of us expressly discusses black women's vulnerability to police violence in another paper. Moreover, and as you may have already noted, the embodiment of blackness in the model--the figure of the black person we visually depict--is intersectionally constructed to signal that black people across gender and sexual identities and indeed other axes of difference experience police violence. Thus, while the examples the Article explicates focus on black men, we want to reiterate that we recognize the multiracial and intersectional dimensions of police violence.
The rest of this Article proceeds as follows. Part I describes the social cognitions--including both explicitly held beliefs and implicitly held associations--that lead to police violence against African Americans.
Part II explicates the remaining dimensions of the police violence exposure phenomenon. Specifically, this Part reveals how frequent police contact potentially leads to arrests, facilitates system involvement, including incarceration, engenders police insecurities, and generates resistance to authority or the assertion of rights. Each of the foregoing effects can precipitate police violence. Part II explains precisely how. We then conclude with a reminder of the importance of moving discussions of police violence beyond the "bad cop" frame to a structural understanding of the problem.
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Broadly articulated, the goal of this Article was to challenge the framing of excessive force as a problem that derives from rogue police officers who harbor racial animus against African Americans. We did so by presenting a theoretical model that articulates racialized police violence as a systemic and structural problem that cannot be solved simply by looking for and punishing "bad" cops.
This is not to say that the model we have presented is a total account of race and police violence. Undoubtedly, it leaves some things out. Still, our hope is that the model focuses attention on significant but under-examined dimensions of the problem, particularly the relationship between police contact and police violence and the various factors that mediate that relationship.
Professor of Law, UCLA School of Law
PhD Student, UCLA Department of Psychology
