Why Policing Without Permission Is Everyone's Fault

May 9, 2017

The last few years have exposed major problems in policing: use of force, high-tech surveillance and a systemic lack of transparency. Some police tactics have even been called undemocratic, because the public isn’t involved on the front end.

On this week’s episode of 90.5 WESA’s Criminal Injustice podcast, host and University of Pittsburgh law professor David Harris talks to New York University law professor and Policing Project Director Barry Friedman, who argues that cops and the courts systems aren’t the only ones to blame.

Their conversation has been edited for length and clarity.

DAVID HARRIS: You say that law enforcement is out of control. Now for a lot of police those will seem like fighting words so why don't you explain what you mean.

BARRY FRIEDMAN: I don't mean that policing is out of control in the sense that the cops are running around themselves out of control. What I mean is that we don't have sufficient democratic accountability around policing. The people aren't in control of what the police do.

HARRIS: What are the problems that you see? What are law enforcement agencies doing or not doing that they should be doing?

FRIEDMAN: Well again it's not to fault law enforcement. It's just that in lots of areas you see that when the public does get involved, when they do have voice, policing changes. That's true around militarization. It's been true around drones. It's been true around use-of-force policies. But there's too little of that. And if what we see is that when the public is engaged on the front end of policing -- on the making of policy -- that policy changes. It suggests we ought to have that public involvement more often.

HARRIS: And internal affairs, citizens review boards -- those aren't enough to protect us in this democratic way?

FRIEDMAN: Everything you just mentioned is not front-end accountability. It's not democratic policing. It's back-end accountability. We have a lot of back-end accountability in policing, even body cameras are a form of back-end accountability, which is to say, "Something's happened, and we want to know what happened, and is somebody to blame?" What we don't traditionally do around policing – and those boards don't do – is engage the public voice on the front end and asking, "What should policing policy be? How do we want to be policed?"

HARRIS: It stands to reason that the police aren't out there asking for more oversight. But how's the court system contributing to this very problem that you're talking about?

FRIEDMAN: Well the court system has been absolutely terrible when it comes to policing. And it's a shame. It's particularly a shame because most of the public, I think, thinks that it's the courts that are keeping their eyes on the police. And they're not. Now to be fair, it's tough if you're a court. All you see, or most of what you see, are the cases where the police are successful and so everything looks great in policing world. But, in fact, if the courts got the whole picture of policing, if they saw all the times that certain tactics were tried and nothing was turned up, they'd realized that perhaps they've been far too permissive.

HARRIS: And that's because the only cases that go to court are where police have actually found evidence but there's a whole lot more where no evidence is found therefore you have no case.

FRIEDMAN: Exactly.

HARRIS: Right. So the courts themselves are responsible in their own ways but really more than anyone else, you blame us -- the public, we the people -- for not governing police the way we would any other democratic institution. What should we be doing? What specific actions warrant more careful tracking and oversight?

FRIEDMAN:  Again, "oversight" is not my favorite word, because oversight implies that there's somebody off doing something and you're just making sure they behave. What I think is that the public needs to engage with policing around all kinds of difficult questions that the police should not have to answer on their own. I mean we are living in a high-tech society. There are all kinds of new surveillance tools, whether it’s facial recognition or license plate readers, drones. These are the kind of things that, you know, we'd never think of saying to some other part of government, "Oh just do whatever you want. Don't worry about us." We'd want to be actively engaged in making those decisions. We'd want to be partners with those who govern us in making the decisions about how we're governed. And it ought to be just the same way. We ought to work collaboratively with the police. We ought to co-produce, as President Obama's 21st Century Task Force report said, we ought to co-produce public safety.

HARRIS: Everybody likes the idea of transparency, but what would you say to cops who would say that if the policies and practices of the police department go public then the bad guys will be able to kind of study up and figure out how to defeat what the police are trying to do.

FRIEDMAN: Yeah, you have to draw a line when it comes to transparency, and the cops aren't wrong. I mean, policing is different than a lot of other things that government does in the sense that, you know, you don't want to hand a manual to the bad guys. But that said, there's a lot of policing that's just overly secretive just out of habit. And so you know we try to draw a line between what you might call policy and then operational details. So we all ought to have a voice in things like whether there should be a SWAT team, when it's called out, how it's equipped. But you know we don't have to make public the details for dealing with an active shooter. That's nothing that generally needs to be known.

Criminal Injustice is recorded at the studios of 90.5 WESA. Find more at criminalinjusticepodcast.com.