The Police Can Be Reformed. These Two Books Lay Out How.
In the aftermath of Tyre Nichols’s killing, it’s easy to despair. But two new books show how police departments can alter their behavior. By Neil Gross
"the key to successful police reform is to pair sensible legal and policy restrictions on police behavior with new models of what it means to be a good cop, so that the hyperaggressive, “us versus them” culture of the profession bends in a different direction."
Tyler Comrie / The Atlantic
February 1, 2023, 8:27 AM ET Most Americans want to see the police reformed. A Gallup poll conducted in May, two years after the murder of George Floyd, found that 50 percent of adults favored “major changes” to policing, 39 percent wanted “minor changes,” and only 11 percent thought no changes were required. Despite this general consensus and a patchwork of recent policy shifts in communities across the country, injustices continue to accumulate, and it would be easy to see the problems with policing as intractable.
Three high-profile deaths just since the start of this year would seem to confirm this feeling. On January 3, Keenan Anderson, a 31-year-old Black high-school teacher (and cousin of Patrisse Cullors, a co-founder of Black Lives Matter), died after Los Angeles police shocked him repeatedly with a Taser. The next day, cops in Cambridge, Massachusetts, shot and killed Sayed Faisal, a 20-year-old Bangladeshi American college student who allegedly approached them with a knife. And less than a week after that, another Black man, 29-year-old Tyre Nichols, died following a beating by Memphis police officers. Video footage of the incident, released this past Friday, led to mass protest in many cities and an anguished response to yet another senseless death. Nothing we’re doing to fix policing seems to be working—or so it might appear.
Against this backdrop, two new books chronicle horrific incidents of police abuse, cover-ups, and intransigence. But they also offer something else: light pouring through the cracks, concrete evidence that police departments can change for the better. In The Riders Come Out at Night: Brutality, Corruption, and Cover-Up in Oakland, the journalists Ali Winston and Darwin Bond Graham tell the story of Oakland, California’s police department. The title refers to a small group of officers who allegedly brutalized residents of impoverished, high-crime, largely Black West Oakland starting in the late 1990s. The actions of these cops became known only because a rookie named Keith Batt was assigned to train with one of them. Batt was deeply troubled by what he observed—behavior that Batt said included kidnapping, assault, and filing false police reports. He contacted internal-affairs investigators and became the main witness in a criminal case against the officers (three of whom stood trial; none was convicted).
The Riders Come Out at Night: Brutality, Corruption, and Cover-Up in OaklandAli Winston and Darwin BondGraham, Simon and Schuster
Shielded: How the Police Became Untouchable Joanna Schwartz, Penguin
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In harrowing detail, Winston and BondGraham describe the terror that Batt said Oaklanders endured at the hands of the Riders, as well as the ostracism Batt faced when he refused to honor the “blue wall of silence” that has long characterized cop culture.
While the Riders’ actions may have been extreme, Winston and Bond Graham view them as symptomatic of larger issues. As Oakland underwent deindustrialization in the 1970s and ’80s, poverty and crime rose. Turning away from local jobs initiatives, city leaders embraced ill-fated redevelopment efforts and pressed their often-racist police department to “clean up the streets.” When rogue cops took things too far, their supervisors looked the other way, knowing perfectly well what their marching orders were.
The Riders were significant in another respect: A lawsuit brought by the group’s alleged victims became the catalyst for a consent decree, a potentially powerful weapon for effecting change within police departments. Consent decrees are legally binding settlement agreements. In the usual course of affairs, after the Department of Justice has investigated a police agency and found that it has systematically violated people’s rights, the feds spell out changes in policy and procedure that the agency must undertake, changes that would bring it into line with established best practices. An independent monitor reports periodically to a judge on whether the department is meeting its marks.
Although the DOJ never investigated Oakland, the consent-decree model appealed to the civil-rights attorneys John Burris and Jim Chanin. In 2003, representing victims in the Riders case, they were able to maneuver the city into an unusual “negotiated” consent decree, which committed Oakland PD to a range of tasks, from better documenting the use of force to enhanced field training for young officers.
Consent decrees have been used to improve policing in cities such as Detroit and New Orleans, but they are expensive to administer and don’t always work. Winston and BondGraham show how the Oakland police resisted the required reforms at every turn. Top brass, middle management, frontline officers, and the police union displayed an “obstructionist mindset.” Oakland cops continued to shoot people at a furious pace. A poster in the department’s firing range was captioned You shut the fuck up. We’ll protect America. Keep out of our fucking way, liberal pussies.
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The Riders Come Out at Night is a longish book, and its story is largely a condemnation of the Oakland police. But readers who stick with it to the end will discover something surprising. Although change was slow to come to Oakland, it did come. The turning point was the ascension of a reform-oriented police chief. Under Sean Whent, a longtime Oakland cop who led the department from 2013 to 2016, internal-affairs complaints dropped dramatically, the police did a better job protecting protesters’ rights, and the agency tackled racial bias.
Winston and BondGraham don’t put it in these terms, but Whent was arguably able to make progress because he helped shift the department’s culture. My own research on other cities suggests that the key to successful police reform is to pair sensible legal and policy restrictions on police behavior with new models of what it means to be a good cop, so that the hyperaggressive, “us versus them” culture of the profession bends in a different direction.
Whent believed not only that Oakland residents had a right to respectful policing, but that such policing would help the department control crime; the resulting trust would lubricate the all-important flow of information between cops and the community. Unlike his predecessors, he leaned into the consent decree (there was also intense legal pressure on him to do so), and enough of his cops followed suit that on the streets, things began to change.
“The reforms that began in 2003 … have profoundly changed the Oakland police, and the city, for the better,” Winston and BondGraham conclude. “Today OPD officers are involved in far fewer deadly use-of-force incidents.” What’s more, where “Oakland cops were once known for abusive, explicit language,” now “audits of police body camera footage rarely flag instances in which officers curse or show impatience or anger.” The police have also “been able to steadily dial back their most problematic enforcement activities,” so that “Oakland is one of the only law enforcement agencies in America that could actually show (before the George Floyd protests) that it took action to reduce racial profiling.” A similarly hopeful lesson might be drawn from Shielded: How the Police Became Untouchable, by the UCLA law professor Joanna Schwartz. Many cops perform their difficult job admirably, but part of the problem with reforming the police is that when this isn’t the case, officers aren’t always held to account for their misdeeds. Schwartz’s focus is on understanding why this should be, and she lands on 11 areas where law, policy, and politics have converged to make it hard for victims of police abuse to get justice.
Among Schwartz’s insights: There aren’t enough lawyers with the expertise to file federal civil-rights cases against police, especially outside large urban centers. This is partially a function of
the fee structure allowed by the courts; only rarely can plaintiffs’ attorneys recoup their full costs, so relatively few lawyers find this kind of work financially viable.
Schwartz’s special expertise is qualified immunity. This arcane legal doctrine dictates that a public official can’t be held responsible for violating someone’s rights unless the courts have already established that the particular circumstances do in fact constitute a violation. Although that sounds reasonable—you shouldn’t hold an official liable unless they knew that what they were doing was wrong—judges have interpreted this in a bizarro fashion.
Schwartz describes a case from Hawaii. A woman in an argument with her husband asked her daughter to call the cops and was Tasered when she accidentally bumped one of them. The Taser was used in so-called dart mode, where the weapon shoots out electrified probes. Her case against the officer ended up getting dismissed because, according to the appellate court, there had never before been a relevant ruling concerning Tasers, much less Tasers in dart mode, and therefore the officer couldn’t be held liable. Dart mode or not, the officer should have known not to do it.
Schwartz’s research shows that qualified-immunity defenses are raised in about 37 percent of lawsuits against the police. Although they’re successful only about 9 percent of the time, they gum up the litigation process because each qualified-immunity claim must be resolved before a case can proceed. The doctrine is a farce in any event, because police officers aren’t regularly updated on the intricacies of federal case law. Schwartz favors ending qualified immunity and argues that this won’t open the door to endless litigation.
Far more common than plaintiffs winning cases in court is cities settling with the victims of police abuse. (Settlements and legal awards cost Chicago nearly half a billion dollars from 2010 to 2020.) Usually cities pay these settlements out of their general funds. Police-department budgets don’t take the hit, so departments have little reason to retrain their officers and improve operating procedures. Schwartz urges cities to change this budgeting practice, giving police departments a financial incentive to learn from their mistakes.
Where’s the cause for hope? Schwartz observes that several of the changes she favors around qualified immunity were enshrined in state law in Colorado in 2020. It’s too early to tell what the effects of the Colorado law will be, but in theory, greater legal liability should deter police abuse. Other states may soon follow Colorado’s lead. Read: The state where protests have already forced major police reforms
Many more levers need to be pulled to get police accountability to where it should be, but we are seeing progress. Even Schwartz, a fierce critic of law enforcement, acknowledges that over the past half century, “departments as a whole have become more professional and have improved their policies and trainings,” if only “to a degree,” in part because civil-rights attorneys and others in the community have kept the pressure on. The cops who were seen beating Tyre Nichols last month in Memphis? They were promptly fired by Memphis Police Chief Cerelyn Davis. They’ve now been arrested and charged with second-degree murder. There was a time not long ago when neither of those things would have happened so quickly.
The narrative that nothing ever gets better in policing isn’t just wrong; it’s an abdication of responsibility. It’s easier to lose oneself in resignation and despair than to bear down—motivated by a belief in the possibility of change—and put in the hard work of reforming a flawed but essential institution. The Riders Come Out at Night: Brutality, Corruption, and Cover-Up in OaklandAli Winston and Darwin BondGraham, Simon and Schuster Shielded: How the Police Became UntouchableJoanna Schwartz, Penguin