Blotter

More on Racial Profiling Allegations in Lake County

From the Lake County News article by Elizabeth Larson:

Deputy’s association calls racial profiling allegations false; sheriff plans to release documents
Written by Elizabeth Larson
Tuesday, 17 November 2009
LAKE COUNTY – On Monday, the county’s sheriff’s deputy association called allegations of racism and racial profiling within their ranks untrue.

Following an emergency meeting held Monday morning, the Lake County Deputy Sheriff’s Association issued a statement in response to allegations made in the Bay Area media by Deputy Francisco Rivero and former department members Kip Ringen and Brian Lande.

“These false allegations are an insult to the hard working men and women of Lake County’s law enforcement,” said association President Gary Frace in the written statement.

On Monday Rivero, Ringen and Lande all stood by their comments.

Their allegations – that some of the agency’s deputies have made arrests and traffic stops based on race – were the focus of a television report last week. Rivero said the interviews they gave were filmed in May.

The claims were cause for alarm from fellow deputies.

“On behalf of the Lake County Deputy Sheriff’s Association, we adamantly deny the allegations made by Frank Rivero, Kip Ringen and Brian Lande that racism and racial profiling are rampant within the Lake County Sheriff’s Department,” Frace’s statement said.

“The Lake County Deputy Sheriff’s Association members are extremely competent and professional men and women who strive to serve the community each and every day,” the statement continued. “We are dedicated to working with the administration and the community to establish a safe and secure place for the residents and visitors of Lake County.”

The statement went on to insist that association members “do not condone any racism, racial profiling, or discrimination of any kind and will not tolerate any such action.”

It also noted that the group is consulting with its attorneys regarding the claims and will comment further in the near future pending an investigation.

In a separate action, Sheriff Rod Mitchell said he’s planning to respond to the allegations by releasing on Tuesday documents and a time line of events to show how his agency has dealt with the issues.

Mitchell said the sheriff’s office has investigated every incident of alleged racial profiling that’s been raised, with one still under investigation that’s based on the statements of Solano County defense attorney Nick Falloy.

Falloy claimed to have seen a deputy slap a Hispanic man on the back of the head during an arrest he witnessed while on a ride-along with his longtime friend, Lande. That incident, Mitchell alleged, wasn’t reported until 10 months later.

Rivero, who was surprised to hear of the deputy association’s statement and the emergency meeting, said he stands by his assertions, including that fellow deputies have called him racial epithets including “wetback.”

One fellow deputy also allegedly called Rivero – whose family came to the United States from Cuba when he was a child – a “Cuban drug dealer.”

Rivero said he’s concerned that if deputies will say those things to one of their own, they’ll do worse things to the Hispanic community at large.

Both Rivero and Lande said a few deputies also were known to make anti-gay remarks.

Rivero and Lande said they’ve seen Hispanics called “Joses.” Rivero said he’s seen Mexicans handcuffed to a deputy’s patrol car. Lande said a deputy specifically instructed him to profile Hispanics.

In addition, Rivero contended that the association meeting was called incorrectly, but Frace said, based on the bylaws, the board can call an emergency meeting at any time.

A regular meeting of the general membership is scheduled for Tuesday, Frace said. It’s 65 members include deputies, first line supervisors at the rank of sergeant and investigators with the Lake County District Attorney’s Office.

Frace said deputies are starting to second-guess themselves on the streets because of the allegations and the publicity they’re generating. That second-guessing, he said, could impact deputies’ safety.

Deputy Michael Sobieraj, who has been with the department eight years – first as a correctional officer and more recently as a deputy – said he’s never seen the kinds of racism alleged in his time there.

Sobieraj said they had a few days’ notice that the report was coming out, and that it was upsetting to watch.

Adding to the situation is that Rivero is challenging Sheriff Rod Mitchell in next year’s election, as Lake County News reported in September. His run for sheriff is aimed at changing the atmosphere, Rivero said.

“My concern is people need to be treated fairly and without prejudice,” Rivero said. “We wield a lot of power here.”

Concerns raised about how complaints were made

Rivero accused Frace and the association of making the Monday statement as a way of hurting his campaign for sheriff, claiming that the association’s board is pro-Mitchell. He also accused Frace of trying to talk him out of running.

Frace, a deputy of four years and president of the association for the past year, said he has no issue with Rivero seeking the sheriff’s job, and that he didn’t try to talk Rivero out of anything.

“What we have a problem with is Frank continually runs us into the ground, in his actions and words,” said Frace.

Rivero said he thinks only a “handful” – or as many as half a dozen – of the department’s deputies are part of the problem. “I never said it was everyone,” he explained, adding he also didn’t say the issues were “rampant.”

Ringen estimated that as much as a third of the deputies are somehow involved in unfair treatment.

Another concern for the deputies association, said Frace, is that Rivero never brought his reports about racism and racial profiling to them. Neither did Lande, nor did Ringen, who preceded Frace as the association president, Frace said.

Rivero concurred that, “officially,” he didn’t take his concerns to the association. He said he did take the matter to the sheriff personally and, when he couldn’t get anywhere, he went to the county’s administration and the Board of Supervisors, which resulted in an investigation.

Mitchell countered that Rivero never came to him about the allegations, but went to the board on March 27, several weeks after he was passed over for promotion in a sergeant’s test.

Lande, who Mitchell said gave a resignation letter dated March 20 before leaving for another law enforcement agency, joined Rivero in that complaint to the board.

That complaint included allegations by Falloy, who Lande had invited on a ride-along around Memorial Day of 2008, Lande said.

They were at a sobriety checkpoint when Falloy allegedly witnessed a deputy slap a Hispanic man in the back of the head during an arrest. Lande said he didn’t personally see the incident.

Mitchell questioned why Lande waited 10 months to make that complaint. “When did Falloy tell Lande, when did Lande tell anyone else?” he asked.

Lande admitted that the sheriff is right – it was many months later before he made the report. That’s because he was afraid of retaliation.

Falloy “wanted to say something immediately,” but Lande said he asked him not to. “I was still on probation and afraid of losing my job,” and had already made an internal affairs complaint against another deputy for safety concerns, Lande said.

Because of making that complaint, Lande was told he would never make the SWAT team.

Lande said he feels guilty because he didn’t speak up sooner.

Ringen, who was aware of deputies targeting Hispanics, said he didn’t report it to senior officials because he claimed everyone knew it was going on.

Mitchell agreed that Ringen never reported racial profiling during his time with the agency. “That was never something he ever mentioned.”

He questioned when Ringen became aware of the issues leading to the race-based allegations he’s making and when he decided to report them. “Those are the key questions,” he said, noting peace officers have a duty to report crimes and civil rights violations in a timely manner.

This past April 15, Ringen – who just turned 57 – retired after nearly 27 years with the sheriff’s office.

At the time of his retirement Ringen said he had been on administrative leave for just over four months.

While he said he hadn’t previously reported racist remarks, he said he did take information about the race-based harassment against Rivero to the sheriff’s administration on Dec. 4, 2008.

Shortly after taking that action, Ringen said he was placed on leave with internal affairs investigations leveled against him accusing him of calling a fellow sergeant a name and not following a direct order.

“I wasn’t going to continue to go through the humiliation of what Mitchell was putting me through,” said Ringen, explaining that he decided to retire. “The hunt was on.”

During the summer, Ringen – who had considered running for sheriff – decided instead to endorse Rivero. “I believe that Frank is truly a better candidate and I think he has a lot more to give the citizens of Lake County.”

He said that shortly afterward he received a call from a friend who was a district attorney’s investigator, telling him he could no longer come into the office to visit. “I’ve been basically cut off from law enforcement in Lake County,” Ringen said.

Sheriff: Investigations have taken place

Rivero is one of two people in the sheriff’s office who have filed complaints with the US Equal Employment Opportunity Commission, as Lake County News has reported.

Everyone – including Rivero – is limited on what they can say about the EEOC investigation at this point, but Rivero stated in a previous interview with Lake County News that the issues involved lack of merit-based promotions at the sheriff’s office and mistreatment of minorities by certain deputies. He indicated that he’s willing to sign a waiver to have the information released to the public.

Both Ringen and Lande said they gave statements to the EEOC on Rivero’s behalf.

County Counsel Anita Grant told Lake County News on Monday that the report the county completed earlier this year on Rivero’s complaint was sent to the EEOC, which will decide at some point if further action is taken.

While she said the report may be disclosable at some point, it can’t be released publicly while the EEOC investigation is taking place, and she has no time estimate for completion based on the EEOC being “woefully understaffed.”

Rivero also complained to the US Department of Justice. A US Attorney’s Office spokesman could not be reached for comment late Monday. Rivero said he was told by an individual within the DOJ’s Civil Rights division that the matter was being looked into.

Mitchell said his department has a long history of responding to complaints and making sure they’re appropriately investigated.

He said he went to Rivero this past May 18 for information about his allegations, and initially was put off.

Mitchell said every issue brought to his attention was investigated, including charges that deputies were targeting Hispanics for selective enforcement at driving under the influence checkpoints. There were resolutions and the resulting discipline was appropriate, he said.

One investigation remains open, said Mitchell – that regarding what Falloy said he saw during the ride-along.

Since the television broadcast there are new allegations. Mitchell said his department is exploring claims that Ringen himself made inappropriate comments.

Since the allegations have gone public, Lande said he’s been receiving hateful e-mails making personal attacks on him. “I knew that might happen.”

Lande said all he had wanted was an investigation.

“My hope is just that this will stop, not that it’s going to turn into a shouting match,” said Lande.

E-mail Elizabeth Larson at elarson@lakeconews.com . Follow Lake County News on Twitter at http://twitter.com/LakeCoNews and on Facebook at http://www.facebook.com/pages/Lake-County-News/143156775604?ref=mf .

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Blotter, DragNet

Policing and the Recession

In response to Kevin’s inquiry as to whether or not there was any reporting being done on the impact of the recession on policing, I have posted the following articles:

Budget cuts that are the result of the recession have lead to departments cutting training. The California Peace Officers Association (a bargaining collective) was receiving so many inquiries from departments about the consequences of cutting training that they put out the following memo (mjm-duty2train).

Policeone.com has a whole section of its webpage dedicated to policing in an economic crisis: http://www.policeone.com/law-enforcement-and-the-economy

including the following article: http://www.policeone.com/patrol-issues/articles/1834282-Recession-continues-to-limit-cut-police-services/

From the AP on cutbacks in the prison population intended to save dollars: http://www.policeone.com/corrections/articles/1642828-Mass-inmate-release-possible-in-Calif/

An article from correctionsone.com on the how competition between police departments, corrections, and parole affects incarceration: http://www.correctionsone.com/corrections/articles/1877665-Bridging-the-gap-between-police-and-parole/

From the Chicago Tribune on how the recession is leading to departments to cut positions, over time, and even how long officers run the engines of their cars: http://www.policeone.com/patrol-issues/articles/1813441-Police-feel-sting-of-recession-Departments-pare-programs-purchases-to-keep-cops-on-streets/

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Commentary

Control as Explanation and as Topic to be Explained

Peter Moskos wrote a great editorial, “The Cop’s Eye View” in the Baltimore Sun in which he discusses a number of issues related to the Gates arrest. He describes the well known tactics for making someone arrestable by convincing them to step outside of their house in to the public space. But more importantly he describes the salience of control to himself and other police officers.  I think it is worth quoting Moskos in extenso:

“As police are almost always outnumbered, personal safety depends on a little bravado and a little bit of bluff. When I was a police officer in Baltimore, and somebody hanging out on the corner mumbled he was going to “get me,” he had to be confronted with swift, certain and appropriate deterrence. If there was a threat to my face, jail was automatic. If somebody said he was going to kick my ass, he probably could.

Police have a strong, justifiable need to control the situation. I didn’t want to be loved. I didn’t mind being feared. Respected was OK. But all that really mattered was to be obeyed. To have authority, police need a legal, all-purpose charge to arrest people when nothing else will do. In Baltimore, it was loitering. In New York (and, I suspect, Cambridge), it’s disorderly conduct. Police also need smart officers to not abuse their discretion.”

Often discussions of police conduct forget that police officers are social beings who play social games delimited by a peculiar set of spatial and temporal realties.  Policing is an “on the field” gig. Cops are engaged in face to face interactions in which there is little or no “time out” to reflect, deliberate, or work by committee. Temporal restraints come in the form of high call volume (the need to rapidly complete one situation so that a officer can move to the next); the fact that there is enormous uncertainty in how others will engage with the officer  means that officer do not have a stable set of temporal expectations for how any given encounter will unfold; and the strip of behavior (sequential exchange) that makes up any given police-citizen encounter tends to occur on the plane of micro-interactions in which gestures and movements are the fabric of reality and are themselves unfolding rapidly. The fact that cops work with citizens and suspects in close physical proximity also means that there is little time to act and react. Hence police officers have cultivated a set of situational perceptions and practices for managing their temporal reality; they call it “control.”

In this setting “control” is not about an authoritarian personality,  motives, intentions, or a psychological need for dominion and respect. Rather, control and its attendant categories like obeying and authority are, from the cops point of view, methods of stabilizing interactions and creating order. The lessons of social psychology and ethnomethodology is that social order, i.e. stable predictable interactions, are an ongoing and highly contingent accomplishment of active social agents. “Control” is very much about creating some kind of stable footing in a unstable social encounter in which there is not time to build mutual understandings of the situation.  Seeing “control” as a folk method having everything to do with social stability and mutual understanding may not be popular but may be sociologically necessary to understanding police behavior. In other words, what Peter sees as the procedural “working acts” of navigating a situation, bystanders see as a quality of the actor.

The need for the police to bluff, bluster, and beat their chests is not something to be denigrated. Peter is absoultey right about how much officer safety depends on the ability to project not simply an authoritative presence but one that must be taken “seriously.” When out numbered no single officer can physically control a group. But the performance of being able to “do what it takes” to maintain “control” is a strategic presentation of self that is often necessary. It is no different than the need of gang leaders or “bad asses” described by Jack Katz in The Seductions of Crime to present a front of danger and unpredictability that will keep dangers opponents and underlings at bay.

According to Katz, the “bad ass” has to be willing to “go all the way” and must occasionally engage in frenzied violence so that violence is not situationally necessary the majority of the time. What bad asses or gang leaders do is similar to cops “controlling” gang members or generating fear on the street (for example see Elijah Anderson’s Code of the Street). Respect is a fragile thin on  the streets and to the extent that face must be guarded and continually restituted, violence becomes the “bangers” answer to slight. Without respect bangers loose standing and their power. Sadly for cops this is often the world they are operating in. Officers don’t get to define “the street,” they are visitors who learn to operate according to similar principles, i.e.  routine grounds of interaction.  Similarly, cops need the ability to make an arrest when challenged in doing their job. Cops can’t “thump” people for disrespecting them, challenging their legitimacy, or threatening them. It is not about control for controls sake. It is about quilting together a patchwork of interactive strategies that are, like it or not, are the fabric of face-to-face interactions on the street.

All of this is necessary, as Peter indicates, because officers need to be able to enter and exit situations swiftly and safely. There can’t be debate each time about the definition of the situation or the relevant systems of classification that are going to be deployed in each encounter (this is the conflict that Jonathan Wender describes eloquently in  Policing as Poetry). We may not like police “control” at a visceral level. But before we judge it it is worth understanding how police use “control” as a folk methodology for negotiating order and maintaining their safety at the micro level.

To see “control” sociologically is not to look down on social action, but to see the complicating position of the method of actors. “Control” thus has to be understood as belonging to the realm of practical activity. When cops talk of control they do so within a realm of action different than the world of activity in which outside spectators use it. Control can exist in different  language games, so to speak, and it is critical that outside commentators beware of the dual existence of “controls” use in speech. We can judge it at a distance but before ridiculing it we must also make some attempt to understand the officers practical relationship to the concept and practice of control and see what it does for the office in situ. This is what seeing policing sociologically must mean.

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Commentary

Obama Tries to Defuse Gates Controversy

A series of articles and reports have come out today based on Obama trying to diffuse the Gates controversy: See NPR’s story by clicking here. Also listen to Sgt. Crowley tell his side of the story,  Sgt. Who Arrested Gates Tells His Story. Also listen to one of my favorite civil rights attorney’s, John Burris, discuss race and policing with two police chiefs. Burris has prosecuted  many police officers for misconduct and civil rights violations. He is notable for his involvement in the Oakland Rider’s scandal (a group of corrupt OPD officers) and was co-counsel in the Rodney King trial. Listen to “Black and Blue: Police and Minorities” from NPR’s Talk of the Nation.

One of Burris’s points is that police officers come to a call with expectations framed by the information that dispatchers give them. In part this is because officers also form stereotypical expectations about situations they go to, e.g. B&Es. Burris also makes the point that I have made, which is that respect is a major issue of urban policing especially between male cops (black or white) and black men contacted by the police. Burris recommends what cops call “verbal judo” which is just a “tactical” name for respectful communication. This is becoming a very popular style of discourse in law enforcement and is now part of the police academy curriculum training and is available as free training through the Learning Portal at the  California Peace Officer’s Standards and Training Commission.

Portland Or, Police Chief Rosie Sizer, also gives a very cogent explanation of how and why cops handle angry people the way they do when they respond to a scene. She  addresses why new specific policies for dealing with “angry people in their own home” is not practical and the importance of training doctrine and officer maturity for preparing officers for the vagaries of police experiences. Sizer describes Portland PDs in-service training for dealing with “jerks” on the force. Some officers, she said, are “jerks” all the time, but minorities perceive that officers rudeness as racially motivated.

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Gates Arrest Updates

Sgt. Crowley refuses to apologize to Gates:

http://www.thegrio.com/2009/07/cop-defends-his-actions-in-gates-arrest.php

Dr. Boyce Watkins: “Consider this before crying ‘racial profiling.’

http://www.thegrio.com/2009/07/i-am-not-al-sharpton.php

Sgt. Crowley taught courses on how to prevent racial profiling:

http://www.thegrio.com/2009/07/officer-who-arrested-gates-is-profiling-expert.php

A less than scholarly comment:

I am very disappointed  by President Obama’s claim that the Cambridge PD’s actions were “stupid.”. Obama, himself, said that he was unaware of all the facts of the case. The bottom line is that Sgt. Crowley is getting publicly hung out to dry for doing his job. There is no evidence that he is “stupid.” Gates is able to leverage his status and reputation  in a way that is preventing any real debate about what happened or any logical or sensible discussion of racial profiling. This is one of the most inane debates about race and police that I have seen in years. People with power will listen to Gates, who will listen to Sgt. Crowley?  Will Crowley be judged only in the court of public opinion or will any real investigation be conducted to determine if his actions were inappropriate?

I disagree with how he handled his call, but hindsight is alway 20/20. Hindsight, as anyone who has actually had to testify in court knows, is not the standard by which a persons actions are judged. No one has asked Crowley why he did what he did at the time. Further, Crowley’s own past actions seem to indicate that he is not a racist. He has taught courses at the police academy for approximately five years on how to prevent racial profiling. He has rendered first aid to save the life of an African American in 1993 (albeit a famous athlete). The fact that I would not have handled Gates’ outbursts the way Crowley did does not mean that he did anything outside the bounds of the law.

Being an officer is tough emotional work. Day in and day it is spent with people who lie to you, disrespect you, call you names, and frequently try to hurt you. Through it all, officers are expected to take their ego bruising and be the bigger man. But officers are human beings too and sometimes a citizen or suspect crosses the line and an officer reacts in a way that is less than ideal. It happens but does not equate to racial profiling.

What saddens me the most is that Gates is using the term “rogue policeman” for Crowley. I have seen rogue cops in action, and reported them. They don’t act like Crowley. Rogue cops engage in a systematic pattern of misconduct in which illegal searches and seizures are conducted, state laws and departmental policies are regularly violated, and other officers and the public are put in harms way. Thus far there is no evidence that Sgt. Crowley is that kind of officer.

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Commentary

Henry Louis Gates Jr., Researcher of Racial Profiling, Arrested.

NPR Article on Gates Arrest

Henry Louis Gates Jr., a prominent Harvard professor who studies racial profiling, was arrested for “loud and tumultuous” conduct after officers responded to his residence to investigate a possible “B&E” (breaking and entering). Supposedly a white female passerby saw gates and his African American driver trying to force open the front door. Gates had just returned from a trip to China to find his door swelled shut.

A Cambridge PD officer arrived to investigate. At this point the stories that the PD and Gates offer begin to differ. Gates claims tat he was arrested for no reason and that the officers were there because of racial profiling. The PD maintains that they had to investigate a crime and that Gates did not allow an officer into the house to investigate. Further the PD says that Gates  did not provide a state issued ID, only a Harvard University ID. While the officer was trying to obtain ID, Gates allegedly began asking for the officer’s badge and name. After the officer entered the house and obtained proper ID he threatened the officer, “You don’t know who your messing with.” Gates followed the officer outside and continued to berate him. At that point the officer arrested Gates for a public disorder crime (read the Gates Arrest Report).

Is this racial profiling as nearly everyone claims it to be? Racial profiling means that an officer stops, detains, or arrests a person solely on the basis of their race. Or is this a case of racial discrimination? That is, was Gates singled out for disparate treatment by the Cambridge Police, or more specifically Sgt. Crowely? Would  a white professor have been treated the same way?

Based on my professional experience I cannot say that I find the police report satisfactory. In CA, anyway, there would be little or no precedent to make an arrest. I would also hope that an arrest report dealing with “sensitive” person would have more detail. That the District Attorney’s Office dismissed the charges does not help. It does not mean that Sgt. did not have probable cause for an arrest, but it does imply that the case could not have been proved beyond a reasonable doubt. It also looks really bad from a public relations point of view.

But is this profiling or discrimination? I don’t think that can be adjudicated from the report or Professor Gate’s version of the events. From a working deputies point of view I can agree with many aspects of how Sgt. Crowely handled the situation. He has the right to detain a person for a reasonable amount of time to investigate a possible crime in progress. A person coming to the door and saying they are a resident is not sufficient to satisfy in most officers minds that no crime is occurring. Asking  for Government issued ID that proves someone is a resident is a common investigative technique. Someone refusing to give ID while legally detained is a real problem. It is generally problem to start arguing with an officer and deman

For example, last night (7/21/09) I responded to a noise complaint of a party with underage drinking.  I walk around the house, establish that there is unreasonably loud noise and I can smell the odor of alcohol coming from the residence. I look through the window and see people who look to be under 21. I knock on the door and a person under 21 answers the door. I ask to come inside after explaining why I am there. I am denied. I request identification from which ever minor lives at the house. The woman who answered the door first tells me “get out of my house” and then refuses to give me identification.

What to do? I explain again that I have to conduct an investigation and determine whether or not minor’s are being furnished with alcohol. I also need to make sure the noise is lowered. I explain that I have a right and an obligation to be in the house. The 19 year old proclaims, “My dad is a lawyer and you should leave.”  I also explain the consequences for impeding the investigation and finally gain the compliance of the white rich 19 year old daughter of a lawyer.

The point is this, I did whatever I could to de-escalate the situation and not make an arrest. My job was to stop the noise and ensure not alcohol was being furnished to minors. If I can get out without an arrest, I have done my job. Could it have escalated to an arrest, absolutely. But I give this example so that others will see some of the reasoning behind why the Gates incident could escalate to an arrest without original crime being founded. But this still doesn’t answer the question of whether Gates was discriminated against. I also don’t think that the claim that Gate’s arrest is prima facie evidence for “profiling.” That is not a logical argument (P.1 Gates is a black man. P.2 Gates is a well respected black man. P.3 Gates was arrested. P.4 Sometimes black men are arrested because of their skin color. C.1 Therefore Gates was arrested as a result of racial profiling.)

Are there other explanations for what happened other than racial profiling? Yes. Based on what we know, the officer did not profile. He had a witness who had facts about a specific suspect. The officer did his job and investigated. However, does that mean that the witness, a white woman, was not influenced by race? Social psycholoical research shows that people are influenced by unconscious biases regarding race. Likely the white witness was hyper-vigilant in her assesment of Gate’s trying to get into the house because of deeply embedded stereotypes about black men being criminals. This is very likely the case, but that is not the same a profiling by police.

It is also equally possible that Gates, tired from  a trip back from China, was exhausted and irratable and escalated the situation. He may have also been frustrated, as a black man who has dealt with a legacy of racism, that a white police officer was trying to enter HIS home. It is also possible that the Officer escalated the situation by not receiving the deference he expects from a upper middle class black man. You ask me and this can equally well be explained as being about masculinity. Could this not have been any more about two men in a pissing contest than it was a story of racial profiling? Gates committed the crime of “contempt of cop” and was arrested. The role of deference in relations between men, especially in police-citizen encounters, has been very well described by sociologists and criminologists. When either party feels disrespected, tensions rise and arrests are more likely.

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The Political Framing of Tasers

To contribute to the discussion on Taser’s and other “less lethal” or “less than lethal” weaponry, I wanted to contribute a letter I sent to the NY Times back in July 2007, regarding an editorial

“Last weeks editorial on Tasers (6/

Taser

Taser

24/08) is problematic. Citing Amnesty International’s report, it asserts that 300 people have died around the world from the use of the Taser. But what is the statistical significance of this number? Citing the number “300” does little to inform the reader of the relative risk of death or injury from the Taser since we don’t know how many people have been Tasered, under what conditions, and with what consequences. It may well be that more have died from batons, police officers using there hands and feet, or the “dog pilling” that used to restrain violent persons. Any risk analysis of the Taser must situate the Taser within the universe of force options available to the police and the risk of any police-citizen encounter. We also need to know whether injuries and deaths, over all, are increased or reduced by the introduction of Taser. More to the point, Amnesty’s report does not represent a consensus within the scientific, medical or law enforcement community.

Scientific debates aside, it is worth reflecting on the representation of what is normal police work for police in the editorial. The Author writes, “[Tasers] might make sense as a last-resort alternative to lethal force, but it would be folly to allow them to be used in more routine situations like crowd control or policing political demonstrations” (italics mine). It is common knowledge to law enforcement, sociologists and criminologists who study the police, that “crowd control or political demonstrations” are not part of routine police work. They are rare exceptions and typically limited to large urban departments. As such articulating Taser debates in terms of political demonstrations and crowd control is not useful.

It is worth inquiring why the Taser has so captured the imagination of the public and the media. Ultimately it has become a fetishized object for debating the very legitimacy of the police. As the epitome of rationalized and technological state control of the unruly, it is a powerful metaphor for the left to think the police within the neoliberal age. But metaphors also can limit our understandings. The fact is police are primarily negotiators, beings who talk their way through conflicts rather then resorting to violence. This has been substantiated by 30 years of sociological research, which time and time show that police ultimately are best understood as supervisors of “volatile working groups.”

Yet misperceptions of what is “normal” police behaviors fetshizes the Taser at the expense of a cogent examination of routine police behaviors that do endanger the public. For example, recently within the law enforcement community there has been introspection regarding pursuit and emergency driving. Routine police driving behaviors put citizen’s lives and property in danger on a scale greater than that posed by the Taser. According to NHTSA, in 2006 alone, there were 404 pursuit related fatalities, 133 (33%) were innocent bystanders. Between 1983 and 2006 there were at total of 8139 fatalities.  I cite these statistics to put the danger presented by the Taser into perspective.

The attention attracted by the Taser also distracts from the social contexts that incubate situations in which police officers typically use Tasers.  Officers tend to use force on people who are under the influence of alcohol, drugs, or experiencing mental health crises. These persons typically are more resistant to negotiation and verbal commands, behave erratically, and don’t respond to hands-on police tactics. These are also disproportionally the economically and socially dispossessed. Police are called in as a last resort when individuals and groups have exhausted their local resources. Unfortunately the vertiginous withdrawal of government from providing basic social, health, and mental health services and under funding of drug and alcohol treatment programs, means that police officers respond only after problems have been left to fester . By the time police become involved the situation has deteriorated to the point  that force is likely needed to resolve a situation through arrest.

If we want to reduce deaths in situations involving Tasers we would do better to eliminate causes of poverty, help raise the standards of living of vulnerable populations, and cease using the police as an answer to the decline of welfare institutions.”

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Commentary

Search and Seizure of Students at Public Schools

While at Cafe Pergolesi, yesterday, I overheard an extended discussion between two UCSC students discussing the legality of searches and seizures at schools. Being a deputy, I am somewhat familiar with Juveniles and the law. But I find that it is often unclear how deputies are supposed to deal with minors on school grounds. I have heard some deputies say that they need have only reasonable suspicion to conduct a search of a student on school grounds. That is flat out wrong!

Case Law has made several things clear:

1.) The Supreme Court has affirmed that minors have 4th amendment protections

2.) Schools, especially public schools, are not “special places” where the 4th amendment does not apply. The Court stated in Tinker v. Des Moines Ind. School District, 393 US 503, 506 (1969), “It can hardly be argued that either students or teachers shed their constitutional rights of freedom of speech or expression at the school house gate.”

3.) Per New Jersey v. T.L.O. 469 US 325 (1984), Public school employees are “creatures” of the State, and therefore they are subject to the 4th Amendments restrictions on search and siezure. If you are a student at a private school you are SOL, and your reasonable expectations to privacy are diminished and, further, private school employees are not “the State” and therefore the fruits of their search, so long as not coerced by law enforcement, are not subject to 4th amendment restrictions.

4.) Public school employees do not need search warrants to conduct searches of students

5.) Lockers and other jointly possessed spaces and property are searchable and seizable by public school employees as students do not have a reasonable expectation to privacy.

6.) The needs to maintain order, discipline, and safety in schools lowers the bar for searches. In most cases, teachers and administrators will only need reasonable suspicion that a crime has occurred to initiate a search (outlined in New Jersey v. T.L.O., 469 U.S. 325 (1985) and public safety searches have been upheld in several lower court rulings, Williams,
1991; Widener, 1992; Cornfield, 1992; Dukes, 1992). In re Alexander B. (1990), allows for group suspicion to legitimate searches where public safety is at risk. In this case, “someone” in a group was alleged to have a gun on school grounds. This justified a search of the whole group to locate the gun, even though no individualized suspicion existed.
Because schools have the need to maintain order in their setting, school officials need not obtain a warrant before searching a student. They also need not be held to the “probable cause” requirement to search. The legality of a student search should depend on reasonableness. Determining the reasonableness of any search involves determining whether or not the search was justified. There needs to be reasonable evidence that the student is, or will be violating school rules, or the law.
The bottom line is the “Gault Rule” which states that the rights of one bow to the safety of the group.

7.) Searches by public school employees are limited in their scope. They must be reasonable and congruent with the reasonable suspicion that led to the search, unless, in the course of a reasonable search, new evidence comes to light.

8.) Per Essex (2003), when public school officials are acting “in loco parentis” they may search even when only reasonable suspicion exists.

9.) When LAW ENFORCEMENT is involved in a search the PROBABLE CAUSE standard MUST be used. School Resources Officers are POLICE and not Public School Employees. Therefore the 4th Amendment demand for probable cause fully applies.

10.) Public School Employees do not need to Mirandize students. Miranda applies only when law enforcement is conducting interrogations in custodial environments. If a police officer is present during a public school employees interview or interrogation and is an observer ONLY, Miranda does not apply.

11.) A point of clarificaiton, according to the North Carolina Court of Appeals, In the Matter of D.D., 554 S.E. 2d 346 (North Carolina 2001), when the police work in conjunction with a school investigation, and are not conducting their own independent investigation, the case law from T.L.O. applies,

” [a] police investigation that includes the search of a public school student, when the search is initiated by the police and       conducted by police, usually lacks the commonality of interests existing between teachers and students.  But when school officials, who are responsible for the welfare and education of all the students within the campus, initiate an investigation and conduct it on school grounds in conjunction with the police, the school has brought the police into the school-student relationship.”

Of course, all of this begs the question of why we conceptualize a different legal theory at all for children? Why should children be treated any differently than adults? Why make the distinction, law, between children and adults, for without this distinction, it is unlikely that there would be any case law at all regulating search and seizure at schools. Invariably, we have to look to the early 20th century when new categories of “childhood” and attendant concepts such as “dependence,” “neglect,” and “delinquency” came into being. Similarly, compulsory education and other progressive institutions of the time, are pat of the story as well that leads to the development of a separate “juvenile justice system” (e.g. in CA, youth probation and the California Youth Authority).

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