Conservatives and Progressives often make the same broad mistake when evaluating use of force by police officers: They assume a given instance can be morally evaluated in the absence of case-specific facts. They just make the flip side of the same error. Conservatives often assume police can do no wrong, while Progressives often assume police can do no right. Too many people reflexively either excuse or condemn the police.
If we want to think seriously about police use of force, we need to recognize the relevant nuances. We (as a society) authorize police officers to use force in certain circumstances, and we authorize legislators to define (at least broadly) when and how government agents may use force. Often when police do things that I regard as morally wrong, it is because lawmakers directed them to act that way.
Most police officers are decent people who consistently strive to do the right thing; some police officers are Rambo wannabes who get a kick out of hassling and hurting people. Often police use force against someone because the person presents an objective threat to officers or others. Sometimes police use force for no good reason and then come up with a flimsy rationalization to appease their superiors and the district attorney.
The correct approach is neither lawless anarchy nor authoritarianism: It is just rule of law. We need police to help protect our rights to be secure in our persons and property, and we need tight legal reins on police conduct lest police act like the very criminals we hired them to protect us against.
In my recent podcast discussion with the Colorado ACLU’s lead attorney Mark Silverstein, one thing that became more clear to me is that often police and the people they interact with have only a vague sense of their legal rights and responsibilities. That’s a serious problem. When neither police nor a suspect quite knows how to act during an interaction, the result can be needless conflict and violence.
Although I’m not an attorney (and nothing herein should be considered personal legal advice), I’m relatively knowledgeable about politics and the law. And yet talking with Silverstein made me realize how much I didn’t know about police interactions. Many other people have much less knowledge about legal matters, yet we expect people to successfully navigate potentially treacherous legal waters.
I already knew about the three basic stages of a police interaction: a voluntary exchange, a lawful detention based on an officer’s reasonable suspicion of criminal activity, and an arrest based on probable cause. Yet, as Silverstein pointed out, the devil often lives in the details.
How am I, someone confronted by a police officer, to know whether an officer is detaining me based on reasonable suspicion? As Silverstein and I discussed, I can ask, “Am I free to go?” If an officer says no, I am being detained. (A traffic stop automatically counts as a detention, Silverstein said.) So far, so clear.
What surprised me is that an officer has no legal obligation to articulate to me (the hypothetical suspect) the basis of the detention. An officer at least is supposed to be able to explain the basis of a detention after the fact. But at the time that can leave me wondering what the whole thing is about.
As Silverstein and I discussed, as a practical matter, unless an officer has urgent need for immediate action, an officer is much more likely to solicit cooperation from an innocent suspect if the officer clearly articulates to the suspect the basis of the detention. For example, an officer could say (if true), “I got a 911 call about a crime in the area where the suspect matches your description.” The officer can also clearly explain the legal basis of the detention.
The suspect, even if totally innocent, also has some moral and legal responsibilities here. We need to realize that policing can be dangerous work. If an officer truly has reasonable suspicion that you’ve committed a bonafide crime—whether or not the suspicion bears out—the officer has a moral and legal right to physically detain you for purposes of further ascertaining relevant facts. And you have a moral and legal responsibility to peacefully endure the detention. Of course you can film the interaction and, if you believe the officer was in the wrong, lodge a complaint or call your lawyer after the fact.
How can we improve police interactions with people? The most important step is for legislators to repeal unjust laws. When legislatures create bogus crimes out of things such as possessing marijuana or having sex with a consenting adult of the same gender, law makers direct police to act unjustly.
Police departments need to hire good officers and train them well, obviously. I think departments should have explicit policies typically requiring officers to articulate both their reasonable suspicions or probable cause (where applicable) and the suspect’s legal rights and responsibilities. It might help to have a readily accessed printout or web page explaining people’s rights and responsibilities. Again, people are much more likely to cooperate when they know police are acting justly and lawfully.
I also think there may be more room for legislative clarity regarding police interactions. Following is the text of the relevant Colorado statute regarding detentions, 16-3-103: “(1) A peace officer may stop any person who he reasonably suspects is committing, has committed, or is about to commit a crime and may require him to give his name and address, identification if available, and an explanation of his actions. A peace officer shall not require any person who is stopped pursuant to this section to produce or divulge such person’s social security number. The stopping shall not constitute an arrest. (2) When a peace officer has stopped a person for questioning pursuant to this section and reasonably suspects that his personal safety requires it, he may conduct a pat-down search of that person for weapons.”
I propose that legislators expand this measure to require police to articulate to the suspect, unless the officer faces an urgent need to rush based on an objective threat, the basis of the detention. I further propose that an officer must make available to the suspect, on request, the language of the statute (again if time allows).
Consider how these requirements might have changed the dynamics of the police interaction with Elijah McClain. As I have argued, police did not actually have reasonable suspicion to detain McClain. If officers knew they had to articulate to McClain, prior to detaining him, the legal basis of the detention, perhaps the officers would have realized that they had no such legal basis. And, counterfactually, if officers did have a legal basis to detain McClain, explaining to him that basis, and giving him a chance to read the relevant statute regarding detentions, might have put McClain at ease that the officers were acting lawfully. Whether or not these changes would have made a difference in the McClain case, we can reasonably think that they would make a difference in some cases.
Another thing that Silverstein told me that surprised me is that officers legally may ask you to exit your vehicle during any lawful traffic stop. I thought officers had to have some additional reason to do that. Again, if officers were required to explain to people the lawful basis of asking them to exit their vehicles, that probably would elicit greater cooperation. Here I’m thinking of a horrible case out of Virginia in which a state trooper violently pulled a Black man out of his vehicle after the officer threatened, “You’re going to get your ass whooped in front of f***ing Lord and all creation.” Obviously the suspect believed that the officer had no lawful authority to ask him to exit the vehicle. The officer probably did, but the officer also acted like an abusive sociopath.
Clearly, police need to try harder to consistently do the right thing. Legislators need to make it easier for them to do so. And those of us confronted by an officer need to realize that the officer probably is well-intentioned and trying to keep people safe. Police need to earn our respect, and, when they do, we need to give it to them.