Change the Rules of Engagement

In addition to training to decrease implicit bias among police officers, cities across America should change the rules of engagement between police and citizens suspected of minor offenses. Ian Ayres and Daniel Markovitse of Yale Law School give these thoughts:

Consider what arrests are for. An arrest is not punishment: After all, there has been no conviction at that point. The purpose of an arrest is to prevent crime and to aid in prosecution by establishing identity, gathering evidence and preventing flight. The steps taken to secure arrests therefore must, at every point, be proportional to the suspected crimes that underlie the arrests.

The current police rules of engagement violate these basic principles at every turn. Convictions for jaywalking and selling single cigarettes — the predicate offenses in Ferguson and Staten Island, respectively — effectively never carry jail sentences, and nobody thinks that they should. Fines are the proper punishments for these minor crimes.

But under current law, when the police arrest someone based on nothing more than probable cause of a minor crime, they can treat the wrongdoer more severely than the punishment that would ordinarily be imposed by a court of law, even after a full trial. We believe that the New York City Police Department violated current law when Officer Daniel Pantaleo placed Eric Garner in a chokehold. But under current rules of engagement, Garner’s saying “don’t touch me” unquestionably authorized the police to initiate the use of force — nonlethal force, but still force — to subdue him.

That’s wrong. An arrest should not impose a burden greater than a conviction. When it does, the arrest amounts to police oppression.

They continue with this solution:

A police officer confronting someone suspected of only a minor crime should not be permitted to arrest the suspect by force. In most cases, the police should simply issue a ticket...

Such rules would not only protect the public’s rights but also promote law and order. Many critics rightly doubt that maximally aggressive “broken windows” public-order policing works. And other countries marry nonviolent rules of engagement with effective law enforcement; Germany, for example, imposes strict limits on the use of force to arrest petty offenders, and the entire German police, governing a population of 80 million, fired only 85 bullets in 2011. Moreover, nonviolent rules of engagement would also protect the police. Officers must of course retain the right to defend themselves when subject to attack. But by inviting police to initiate force, current practices require officers to control a naturally escalating dynamic that can quickly endanger all concerned.

The best thing about this idea is that we don't have to wait for federal or state legislation -- it could be enacted by individual cities. If Saint Paul had these rules of engagement, Chris Lollie wouldn't have been tasered in that skyway, or if he was, the cop who did it would have been held responsible for it. Eric Garner and Mike Brown and many other people probably wouldn't be dead, either. It would deescalate so many situations.

I'll be calling my city council member to urge him to introduce a bill changing the Saint Paul police department's rules of engagement.