The editors of Anthropoliteia would like to welcome Peter K. Manning with the latest entry in our developing forum #Ferguson & Elsewhere

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The events recently played out in Ferguson, Missouri cry out for civilized comment. What are the police good for? The encounter between Brown and Wilson, the shooting of Michael Brown, the police response and the grand jury’s decision present a complex puzzle. They are, for most people, an entanglement of facts, feelings, and forebodings. This entanglement arises because the situation as described by the media and the police is inconsistent with assumptions of the white majority made about policing: that it is consistently pragmatic and minimalist, builds on and does not violate trust; controls situations in due course; applies the needed force and in effect acts to reduce that which might escalate or get out of hand.  This definition of the work is why, according to Egon Bittner, people “call the cops.”  This “demand condition” is the grounding of his analysis-the concrete realities of the craftwork called policing. The police, according to Bittner, are a means to distribute non-negotiable force and application of this force is based entirely on the officer’s assessment.  Anomalies, matters somehow inconsistent with “common-sense,” are painful for the outsider to consider. Fatal shootings are often anomalies such as the shooting of 12 year old Tamir Rice in Cleveland, or of an unarmed Michael Brown with his hands up surrendering.  A long list of such shootings is easily available on several websites.

A legal and traditional umbrella sanctions police actions on the street and in court.

The everyday work of policing includes the “demand side,” or response to calls for service, and the “supply” side, proactive interventions such as traffic stops, field stops to question, and regulation of whatever needs controlling actively such as drug dealing, sex work, or of late “terrorism.” The supply side in most cases a function of individual officers acting on their own. It is not guided directly by law, by human rights, humanitarian concerns or good-will. The original authority of the officer, that they are charged to act in good will, is a common-law conceit. Unless the officer’s actions are frivolous or personally motivated, they are assumed by tradition to be appropriate. In some sense, given this, an officer can do no wrong. By extension, the officer in court is a truth-teller, while citizens must establish the validity and reliability of their opinions and observations. An addendum to this proposition is that the patrol officer’s view that the “natural attitude” or problem-solving opinions of the citizen are awkward constraints in getting the work done. This definition of the situation is the logic of police practice. As a result it is a protected and situated craft based on the officer’s assessment of what needs doing now. A legal and traditional umbrella sanctions police actions on the street and in court.

Let us reverse the angle, and view policing as a kind of refracted window into social life, especially that side of social life deemed to be governed by dubious, misguided, marginalized and even dangerous habits. In these assumed-to-be-full-of-that-of-which-one-cannot-speak places, police patrol frequently, intensively, cautiously, and often violently. They mind the borders, and these are flexible, local, permeable and arguable. The police harvest “facts,” that which is seen as “out of place,” a White college student in a Black neighborhood; a homeless person in a fancy mall; someone walking in the middle of the street; a car weaving in traffic; an abandoned baby carriage with a child on board.  These incidents in themselves are meaningless unless and until some action is taken. The facts then become information– a difference that makes a difference in police action-and become actionable. In due course, such information is the basis for paperwork, reports, statements, depositions, grand jury testimony and the like. In this way, police are transducers or interpreters of everyday life for the rest of us. In this game, the media are sometimes allies and amplifiers who frame, dramatize, loop and enlarge everyday events: trivializing, summarizing, omitting and adding, offering up sacrifices, producing heroes and villains, fools and scapegoats. The natural event, or what might be called a “stripped down” version of an encounter,” -stopping Michael Brown- is lost in the shuffle. That shuffle is what public trust and putative legitimacy do for police. Trust creates social reality. We know, in general, what the police tell us and as Peter Moskos has written in Cop in the Hood (2008:25) with credibility if not irony, “We have no choice but to trust police officers and hold them responsible for their actions.”

In another sense, the police translate what they think is expected of them into action. One might say they see themselves as community elites see them. Police officers may not be public servants, but they serve a somewhat fractured version of public opinion nevertheless. Police hold theories about social life, its causes and consequences, and these rules of thumb guide their actions. A common-sense theory of policing as seen from the inside must rest on the idea that it is a craft. Police do not see their work as it is seen through the opaque eyes of the law, the false banalities of Faux News, the public rhetoric or dramaturgical truths of official statements. On the ground, one might say, it looks different. They are not victims.

In the unfolding of action,  and policing is all about the action, the event, the here and now that needs solving, the actions required and the definition of the situation, become conflated. Certain pre-verbal rules govern: act quickly, take charge; speak authoritatively, drill down to the essentials, control the situation and close it. Police are American Pragmatists. The moment speaks. In these encounters, what is called “good police work” is predicated on and rewarded on the basis of the tacit rules of the oral culture of the patrol officer (other segments of the police do not view the world in exactly this way, but the patrol culture is the base line against which the aesthetics of policing is judged). Is there not an aesthetics of bus driving, coal mining, school teaching and stock brokering? These are working rules, beliefs, values and norms, practices and routines, tools and equipment that are known to produce results, to work. For the most part the modest training offered young officers is seen in due course as irrelevant and often viewed as an impediment to making skillful solutions.

[Police] are acting as “lay sociologists,” but unlike sociologists, they have the power and authority to “put their hypotheses to use.”

Working alone, with notions of “back-up” and support from the “police family,” officers confound, conflate, confuse and elaborate state-granted authority with “My authority,” “my honor,” respect of me, and the job. This is no small conflation. Honor, a validation by society of one’s virtue, remains alive in policing, the fire service and the military. While the job rests on the assumption that people trust the judgment of police, and could not be done without it, the police distrust the public, and some groups are more distrusted than others. Is this not a contradiction? In this sense, police reject categorically the idea that they are “racists.” They are acting as “lay sociologists,” but unlike sociologists, they have the power and authority to “put their hypotheses to use.”[1]

What else should they be doing? Trading jokes aligning their cars side by side in some dark parking lot? Eating doughnuts? Those who are distrusted vary by local context, time and place. The villains are shifters, imagined. Patrolling at night, as Officer Wilson was doing, on the radio, checking the mobile digital terminal while ranging and rambling, offers opportunities to act, “run plates,” make field or traffic stops, fight boredom and exercise authority.

The rule of law is a rhetorically useful dramaturgical truth, but it cannot be applied on the basis of the written law. That is, no law speaks to when, how and to what extent it should or could be applied.

The law does not define police actions as discretion unless and until a choice is made between legal standards. Because police officers possess original authority, they do not exercise discretion until they use the resources available-law, tradition, local knowledge, experience – to write up and account for the actions they deem are to be recorded. In addition, there is no legal definition of “excessive force” it is an open-ended locally-patterned text. The rule of law is a rhetorically useful dramaturgical truth, but it cannot be applied on the basis of the written law. That is, no law speaks to when, how and to what extent it should or could be applied. How much constraint is necessary? When do I intervene if at all? What do I do if I decide to act? We leave all such decisions to the police. Certainly in one way or another, everyone breaks the law, but even if it is visible delict, it is generally overlooked. While this is a venture into abstraction, I have argued, following the German political scientist Carl Schmitt, that the police proceed and act by exception-there is no a priori definition of the mandate that omits the necessary: that which the officer deems is required to control the encounter.  Media notions of policing, glossed by buzz words like “law enforcement” and “peace-keeping,” obscure the concrete doings of police officers. Is there anything a police officer can rule out of their concern? The police, unlike any other citizen, can say about law-breaking, “that’s not my business.” And they act as such every day.

So, let us assume that an encounter between an officer and a citizen, say someone walking in the middle of the street of an evening, is game-like. The police have sanctioned authority to use force up to and including fatal force to control an incident. While police may use a sliding scale based on the actions and responses of the citizen, the actual challenge and response can easily escalate into active use of weapons other than hands, fists, feet and non-fatal tools. Police shoot more people than shoot at them, and they kill more people per capita in this country than in any other Western European nation. The number of shootings of citizens by the police, still an opaque and elusive number in this country ,is in stark contrast to the data from the Anglo-American world of the UK, Canada, New Zealand and Australia. This in some sense reflects what is expected of our police, and how they read off public responses to the use of fatal force. The hidden and unknown is that which is not done, the shooting avoided, the road not taken, the many kindnesses rendered. That which is not known cannot be judged.

The how and the why of policing, the actions and the “because motives” used to explain action, as is true of any job, are intertwined. One might say: “I do it first.” As Kierkegaard wrote, “…life is lived forward and understood backwards.” The oral tradition of policing is powerful, resilient, resistant to change and rooted in cautionary tales. On the one hand, officers fear the arbitrary rule enforcement of departments, and on the other, are sent out alone with powerful vehicles, weapons, and back-up (“we will just keep coming; you can’t win” police will say) and uneven supervision. Young officers are told “war stories” that weight the awkward, sometimes funny failures to act quickly and decisively; they are told of failures to back-up other officers (those seen as weak, new, or incompetent); the thrill of the chase and capture; the importance of asserting personal authority (cf Moskos, 2008: 104).  While these chases and shootings and fracas may be rare events, they are elevated and seen as the core of the work.

Officer Wilson had time to consider his actions. He clearly was in no danger and Brown had stopped dead. Mr. Wilson’s shooting was considered and wrong- it looks like a bad shooting to me.

The most volatile and troubling event, often debated, as I am sure Mr. Wilson’s actions are in police departments across North America, is a shooting, especially a fatal shooting. Over this country, as young officers go off to work, they rehearse what they have seen and felt about Mr. Brown’s death. As Jennifer Hunt and others have noted, police astutely assess shootings, even as they admit as a tenet of the job that “you had to be there,” and label them as “good” or “bad” shootings. Loosely characterized, the bad shooting emanates haste, poor judgment of the degree of risk to self and others, and is often then mischaracterized in oral and written reports of the shooting. No shooting is ever a “spilt-second decision.” It is inexcusable not to reflect.  Officer Wilson had time to consider his actions. He clearly was in no danger and Brown had stopped dead. Mr. Wilson’s shooting was considered and wrong- it looks like a bad shooting to me.

The framework of the patrol oral culture is loose and flexible and admits to contradictions and reinterpretations-the work of stories is to open up reflection. It fits any and all encounters. It is a social form as the German sociologist Greg Simmel might have it. The exercise of authority, however, is in some sense also poetic, as the notion of stories suggests. Policing has an almost intrinsic poetry as Jonathan Wender in Policing and the Poetics of Everyday Life (2008) has shown. That is, the emotions of police work are as rich and complex as they are often denied. Officers assisting little old ladies who have locked themselves out in a winter’s storm; finding a lost child who has wandered off and distressed parents; facing near death in an auto crash or in seeing an AIDS ravaged heroin addict crying alone in a room, all things I have witnessed, are redolent of emotion. They are poetic scenes. By poetic in this context, I mean that linear, metonymical renditions don’t work, metaphor mixes with metonymy, and synecdoche and irony collide. Words fail. Perhaps we reach for extremes such as “thugs,” “demons,” “crazed” and “scumbags” to label those we fear because other words do not capture our rampant feelings.

It is not easy to disentangle one’s projected feelings into an event from that which seen, heard, touched, smelt and tasted, especially in an event with violent potential (what event ever lacks this potential in America? A Christmas dinner? A christening? A wedding?). A rendition of the encounter between Mr. Brown and Mr. Wilson from a distance can be sketched: an officer sees two Black men walking in the street-something out of place, disorderly; the radio reports some series of calls about a robbery; perhaps Wilson drives by and then reverses opening the door onto the near pedestrian. Words are exchanged. Brown responds, a struggle ensues over the gun. Brown walks or trots away and then turns and hold up his hands (forensic evidence is clear on this). He is shot in the arms and chest and then twice in the head as he falls forward. 12 times. These shots unfold in seconds, but the encounter has duration. Does Wilson report on the radio that he is making a stop? Does he report his location and call for back-up? Does he consider alternative tactics? Is Wilson injured? Not shown in photos taken. Is his adrenaline flowing? Is he agitated and emotionally aroused? Yes, surely. He asserts his dwindling authority, itself an open-ended move. The person he orders to stop and be questioned has diminished Wilson’s authority. If he runs, even if one knows the suspect (of what?)–  his name, residence, or how to find the person–the person cannot be allowed to escape. This is working rule number one of controlling encounters. Running away when ordered to stop constitutes “contempt of cop,” and in theory cannot be permitted. Loss of face is always painful. These matters of deciding are of course debatable, but is ground is well-traversed in thousands of cases. Wilson claimed he acted because he felt he was in danger.  The occupational culture does not acknowledge this except as an ex post facto explanation. Police are not meant to be frightened, it is believed. What do we pay them for?  That is, fear is generally denied because it can be crippling to an occupation in which action is valued above all. Wilson could have simply said “I was afraid, felt endangered and I shot him.” Politically and even legally, the judgment about whether this constitutes a “good shooting” can only be rendered by the closed secretive social world of the police.

Could a different algorithm have ensued? Yes. Variation in nuance, in tactics, in words and action is always possible. A rule of thumb on the job is that you don’t second guess an officer. The essential proposition in police work is “you had to be there.” That is, no general principles, legal or otherwise, can be applied rigidly to a complex, unfolding policing situation. Of course, lawyers, doctors and professors would say the same thing if their judgment were questioned. The professional eye sees best and sees the occupationally-framed truth. This proposition renders investigations by police department’s internal affairs, by complaints-processing organizations, by lawyers (as Warren Zevon sings, “Send lawyers, guns and money, the shit has hit the fan”) or the courts, weak and truncated by police secrecy and the oral culture itself.  This, supported by the citizens’ trust, is the source of the benefit of the doubt in regard to questionable police practices. Media people escalate, in the absence of facts, dubious claims and seek villains. Watch any evening news.

Can we discover what “really happened” and “prevent” such events from being repeated? No. If we take the position of legal realism, the law is not about truth; it is about processing cases and producing outcomes. It produces legal truth.

Why does this horrendous shooting, and surely it was for Wilson, other officers, and Brown’s family, remain legal, sanctioned and sanctified by a Grand Jury that, in an exception to general practice for other citizens, does not render a true bill?  Can we discover what “really happened” and “prevent” such events from being repeated? No. If we take the position of legal realism, the law is not about truth; it is about processing cases and producing outcomes. It produces legal truth. The previous arguments certainly provide an inferential basis for supporting this proposition, but there are other matters that bear on the turgid borders around our civil servants. I would suggest the following ideas to think with. First, the police act as and when they deem it necessary. No rules, no protocol, no precedents restrict their initial actions. They are trusted to act on our behalf. They do so with little supervision and modest training in human relations. Supervision in everyday policing, as opposed to paramilitary operations such as the hunt for the Boston Bomber, or attempts to control the demonstrations in Ferguson, is weak, uneven and intermittent at best. No sergeant can supervise 8-15 mobile officers at large in a city or on highway patrol. The police are largely on their own and have great latitude in what they report. In fact, the police are not required to report any or all of their actions, only their categorically determined label for their disposition of the call or stop. Many actions are not recorded, including field and traffic stops as well as attending calls dispatched to other officers. The rule of thumb is avoid to “paperwork” (less and less in fact as more and more records are electronic) if you can and “cover your ass” or CYA. Some awkward or improbable or possibly illegal actions are edited out by sergeants before the report is submitted. Advice is sought.  It is assumed in reviewing an incident by internal affairs and superior officers that: “You had to be there.” The officer’s truth can only be contradicted in practice by his/her recanting the report or testimony, or by the dramaturgical truth of other officers’ statements, depositions or testimony. This proposition renders other versions irrelevant or notional, even those of eye-witnesses. Internal affairs, complaints and the like are thus discredited in advance. As this suggests, almost universally, officers’ accounts are considered true. Officer Wilsons’ account was legally true. Incontrovertible, given the circumstances of the shooting.

It should be noted as well that police often refuse to give information to complaints boards; that judges refuse preliminary hearings on claims of excessive force, and that grand juries are often ways to defuse accountability, buy time, and calm public opinion.  The almost unique aspect of the Michael Brown case is that it caught the eye of the media. All the rest is routine.

The stories on FAUX News, on MSNBC, in the Boston Globe, and elsewhere are anagrams, jumbled puzzle pieces. I would call it Scrabble without rules or points. Racist language of course gets extra points, even if you don’t spell a word. The false assumption of the social media is that seeing is believing, and that visual evidence increases accountability. These visual fragments have no virtual truth in the legal system. Did the videos/visuals of the Rodney King beating lead to conviction? No. The dialogue among some police intellectuals urges efficiency and effectiveness neither of which they can define or “operationalize.” Others urge a crime focus based on fantasy criminology, the conceit that experimental methods can replace actual knowledge of the social dynamics of a setting. This “crime attack model” escalates the destruction of marginal communities, whether Brown, White or Black, because it is a license to stop, question and record the everyday actions of those feared. Normative urges for reform wither away in the face of the sanctioned authority of the police. Policing remains a big processing machine- awesome, unchecked and in many respects a function of our trust. Hands up, don’t shoot is about all we can do unless someone has the courage to dance in uniform before an NFL football game, or wear a t-shirt with an epitaph, “I can’t breathe.” Tell me why these dramas of assertion are wrong.

[1] I am grateful to Stephane Leman-Langlois for suggesting this colorful phrase.

 

Peter K. Manning holds the Elmer V. H. and Eileen M. Brooks Chair in the School of Criminology and Criminal Justice at Northeastern University, Boston, MA. He has taught at Michigan State, MIT, Oxford, and the University of Michigan, and was a fellow of the National Institute of Justice, Balliol and Wolfson Colleges, Oxford, the American Bar Foundation, the Rockefeller Villa (Bellagio), and the Centre for Socio-Legal Studies, Wolfson College, Oxford. Listed in Who’s Who in America, and Who’s Who in the World, he has been awarded many contracts and grants, the Bruce W. Smith and the O.W. Wilson Awards from the Academy of Criminal Justice Sciences, and the Charles Horton Cooley Award from the Michigan Sociological Association. The author and editor of some 20 books, including The Technology of Policing: Crime Mapping, Information Technology and the Rationality of Crime Control (NYU Press 2008), Democratic Policing in a Changing World (Paradigm Publishers 2010), and, with Michael W. Raphael, Phenomenological Theories of Crime (Oxford University Online Bibliographies, 2011). His research interests include the rationalizing and interplay of private and public policing, democratic policing, crime mapping and crime analysis, uses of information technology, and qualitative methods.