August 15, 2019 | View as webpage
Leaders,

Police departments have recently faced criticism following several incidents involving cross-race complaints in public, private and quasi-public spaces. In April 2018, Philadelphia police were called to a Starbucks when two African-American men did not order anything while waiting for a friend. A month later a white woman dialed 911 to report a black family barbecuing beside a lake in Oakland, California.

In today's Leadership Briefing, we address whether officers can avoid contacting the suspected person if they believe the caller was acting out of their own bias toward someone's appearance. Chief Joel Shults details the importance of using consensual language to preserve the non-confrontational context of a contact, while Sergeant Jeremiah Johnson outlines the steps police leaders should take so agencies can avoid profiling by proxy.

These incidents often generate significant media coverage that has led to police leaders "apologizing" for the response of their officers. What would your messaging to the media be if such an event occurred in your jurisdiction? Email nancy.perry@policeone.com.

P.S. Is your agency ready for communications in the FirstNet era? Are you preparing your personnel for the transition to a new network? PoliceOne's newest digital edition, "FirstNet: A PoliceOne guide to understanding and implementing," sponsored by FirstNet, features everything you need to know about implementing and using this communications network. Download today.


Nancy Perry, PoliceOne Editor-in-Chief
 
FEATURED ARTICLES
Suspicious person calls and third-party racial profiling
By Chief Joel F. Shults, Ed.D.
 

Police leaders, as well as front-line supervisors and officers, are so sensitive to the volatility of citizen contacts that a practice of simply avoiding contacts in the first place is an appealing strategy. The “no contact, no complaint” philosophy – often referred to as “de-policing” – can have both short- and long-term negative effects.

But what happens when racial profiling is done by the citizen calling in a suspicious person? Can officers avoid contacting the suspected person if they believe the caller was acting out of their own bias toward someone’s appearance?

What citizens know

Police officers are very aware of that so-called “sixth sense” that makes them take a second look at a situation.

We know two things about this seemingly extrasensory perception. The first is that this is a gathering and assessment of facts that happens at an instinctual level. This is a brain process so automatic that it takes an intentional effort to break it down and articulate what is making something or somebody “suspicious.” The second thing we know about the sixth sense, now that we understand it is quite rational and not supernatural, is that merely labeling something as “suspicious” has zero credibility in a court of law.

The citizen who gets the feeling that someone or something is suspicious is not likely to have the ability to articulate why they have that feeling. A police officer will report that a person was walking in shadows rather than the main portion of the sidewalk, that the person was looking constantly over their shoulder, that their arms weren’t swinging naturally but being held close in a manner consistent with concealing something heavy under their shirt, and that the person was wearing a coat on a hot day. The citizen is likely to say, “I don’t know, it just seemed suspicious.”

Must we mistrust that citizen’s vague concern? Do we allow dispatch to screen out those calls for lack of concrete reasons? Should officers ignore potential criminal behavior for fear of being accused of biased policing?

Answer the call

The officer should respond to the concern and make his or her own observations. Deciding whether to make a consensual contact or an investigatory stop must be based on the totality of circumstances, only one of which will be the call from a concerned citizen. Lacking any other articulable facts to justify an investigatory stop, the officer will either make a consent contact or clear from the call.

Keeping it consensual

For the officer, a clear understanding of contacts is essential. The basic rule is that the more articulable facts the officer has, the longer and more restrictive the contact can be. With zero facts, the officer is left only with a consensual contact. The citizen must be allowed to walk away and refuse to answer any questions if the contact lacks a factual basis.

Using consensual language is essential to preserve the non-confrontational context of a contact. Asking permission to chat, asking for help in observing for suspicious activity, thanking the person for their time and a conversational demeanor can preserve a positive contact. Expecting a normal amount of nervousness, hesitation and even hostility, the officer cannot use the subject’s invocation of their rights as a foundation for moving into an investigative stop.

Perceptions

A citizen being contacted by the police will not describe that contact with the legal precision of rulings on the fourth amendment to the Constitution. “The cops stopped me” will likely be the description regardless. Their story can be positive if officers engage lawfully and appropriately.

Additional resources:
Co-opting the police: What can be done about 'profiling by proxy'?
 

By Sergeant Jeremiah P. Johnson

More than 50 years ago, James Q. Wilson noted that, “As the urban poor and the big-city police increasingly come into conflict, it is the patrolman who is on the grinding edge.”

Wilson’s imagery brings to bear an uncomfortable reality that is neither pleasant for police or the community. If police are on the grinding edge, the metaphor begs the question as to whom is pulling the lever. 

Police and “the urban poor” (a euphemism for racial and ethnic minorities) are brought into contact through different avenues, not all of which are initiated by the police. It is imperative for police executives to recognize and mitigate the perils of 911-driven complaints that can entangle their officers in the biases of others.

Considerable public attention has been given to self-initiated activity by police in the form of stop-question-and-frisk style Terry stops and traffic stops for motor vehicle violations. Research has demonstrated that proactive stops by police can decrease crime and disorder, particularly when these activities occur in hot spots. Despite their efficacy, such strategies tend to generate disproportionate contact with minorities, and little is known about the range or extent of negative outcomes produced.

In recent years, law enforcement executives, legislators and police reformers have sought to address racial disparities by refocusing enforcement priorities, expanding police reporting requirements and conducting implicit bias training. Many of these approaches are yet unproven and may even create unintended consequences that exacerbate disparities.

Even less clear is the path forward for complaint-driven police encounters initiated by the public. Policing in the 21st century has come a long way, but thus far has preserved its 20th century heritage of reactive response. Steeped in the rhetoric of community policing paired with the specter of legal liability, our response to the public complaint is often reflexive and uncritical.

Mundane activities generating 911 calls 

This was brought to bear in 2018 when police were criticized for their involvement in cross-race complaints that transpired in a variety of public, private and quasi-public spaces. The most viral incidents involved white female complainants calling the police in response to black men, women, and even children who were engaged in rather mundane activities which, at most, might constitute a minor violation of law.

Less viral, but undoubtedly more common in society is the concerned resident calling about a “suspicious person” or “suspicious vehicle” in their neighborhood. Frequently, the individual walking down the street or occupying the vehicle in question is a person of color. Unknown in these instances is the counterfactual; would the complainant have contacted the police for the same behavior or activity by whites?

It is not difficult to see why the perception of bias might exist in these situations; there is a grievous history of racial exclusion in our country, often enforced by the rule of law. My own jurisdiction has the shameful distinction of having been a “sundown town,” and even served as the literary setting for the 1947 film "Gentleman’s Agreement."

At worst, the public’s use of law enforcement to confront minorities can be viewed as “weaponizing the police.” Even when no explicit animus is present, such encounters may constitute a form of profiling: profiling by proxy. Without proper leadership and guidelines, police will unwittingly couple themselves with the biases of third parties whose intentions are opaque.

How to identify, avoid profiling by proxy

How might a law enforcement agency determine whether they are systematically engaged in profiling by proxy? Police reform advocates are fond of benchmarking police activities to census data. Another starting point is a comparative analysis of suspicious person/vehicle calls. Comparing descriptive data of individuals detained through officer-initiated contact versus those called in by the public can be telling.

How might agencies avoid profiling by proxy? The University of California-Irvine Police Department sought to educate their campus community using a bit of humor along with a guidance on when it is appropriate to call the police. This approach can generate important conversations, but police organizations must institutionalize practices that protect officers from being co-opted by members of the community.

The dispatcher's role in deterring profiling by proxy

Perhaps the most important player in deterring profiling by proxy is the public safety telecommunicator. Call takers and dispatchers not only collect and transmit vital information to police officers, they also screen and triage calls for service. Given the proper latitude and training, these unsung heroes can steer police officers and organizations away from crisis and help engender constitutional policing. Reports of suspicious activity should not typically be actionable unless a complainant can articulate something wrongful or reasonably suspicious about a person’s behavior.

The value of officer experience and discretion

Rethinking patrol response to suspicious activity might also include greater reliance on officer experience and discretion. Instead of contacting or detaining someone based on a tenuous complaint, officers could respond to the area and independently assess the person’s behavior from a distance. If nothing suspicious is observed, the officer would simply clear the call as unfounded and resume patrol.

In the post-9/11 era, as suspicious activity reporting was a major focus of many national agency efforts, a significant emphasis was placed on training officers, investigators, analysts, telecommunicators and the community to understand the importance of focusing on behaviors that may have a nexus to criminal activity. While we continue to articulate the need to “see something, say something,” it is essential that we seek to avoid and/or deter unintended consequences like profiling by proxy. It may be time to recalibrate our messaging and training in ways that reaffirm the importance of privacy and civil liberties.

The ostensible narrative du jour is that police are oppressors who target vulnerable people and communities. What if the institution of policing is not inherently biased, but can be co-opted by social, political and economic forces that are? Police organizations must learn to decouple themselves from individuals and institutions who seek to appropriate our authority for ignorant and ignoble purposes. Until such time, we take the sins of society and make them our own.


About the author

Sgt. Jeremiah Johnson is a policing practitioner and researcher. He has served in a sworn capacity with the Darien Police Department in Connecticut since 2002. Jeremiah is concurrently employed by the University of New Haven where he is an appointed practitioner in residence at the Henry C. Lee College of Criminal Justice. Jeremiah is affiliated with the Police Foundation in Washington, D.C., where he serves as a policing fellow and the National Institute of Justice where he was honored as a Law Enforcement Advancing Data and Science (LEADS) program scholar.

Additional resources:
4 Ways Law Enforcement Agencies Sell Officers Short
 

Are law enforcement agencies properly equipping officers to respond to life-threatening situations and high-stress events? In this on-demand webinar, Gordon Graham and Jim Glennon present a dynamic, no-holds-barred discussion about how the best-intentioned efforts of law enforcement agencies still often fail to provide officers with the proper support and training.

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