The Plague of Excessive Force - Working Together to Find a Cure

SUPPLEMENTARY RESOURCES

A full transcript is available below. You may view a video of this recording on the Bolch Judicial Institute website.

Revised Tentative Draft No. 1, Principles of the Law, Policing

Reporter: Barry Friedman; Associate Reporters: Brandon L. Garrett, Rachel A. Harmon, Tracey L. Meares, and Christopher Slobogin (2017)

Tentative Draft No. 2, Principles of the Law, Policing

Reporter: Barry Friedman; Associate Reporters: Brandon L. Garrett, Rachel A. Harmon, Tracey L. Meares, and Christopher Slobogin (2019)

Amid Calls to ‘Defund,’ How to Rethink Policing

Barry Friedman, Wall Street Journal (June 1, 2020).

An Overview of the Policing Project

Changing the Law to Change Policing: First Steps

Barry Friedman, Brandon L. Garrett, Rachel Harmon, Christy E. Lopez, Tracey L. Meares, Maria Ponomarenko, Christopher Slobogin, and Tom R. Tyler (2020).

Disaggregating the Police Function

Friedman, Barry, Disaggregating the Police Function (March 30, 2020). U. Pa. L. Rev. (2020-21 Forthcoming); NYU Law and Economics Research Paper No. 20-03; NYU School of Law, Public Law Research Paper No. 20-3.

Our Statement Regarding Policing in the United States

The Policing Project at the New York University School of Law (June 1, 2020).

Policing's Information Problem

Friedman, Barry and Janszky, Elizabeth, Policing’s Information Problem (September 1, 2019). NYU School of Law, Public Law Research Paper No. 19-39; NYU Law and Economics Research Paper No. 19-33.

Police Shootings: Is Accountability the Enemy of Prevention?

Armacost, Barbara E., Police Shootings: Is Accountability the Enemy of Prevention? (April 1, 2019). Ohio State Law Journal Volume 80, Number 5, 2019, Available at SSRN.

Principles of Procedurally Just Policing

Quattlebaum, Megan and Meares, Tracey Louise and Tyler, Tom, Principles of Procedurally Just Policing (January 1, 2018). 

Full Transcript

David F. Levi: Hello and welcome to “Coping with COVID”, a podcast and video series jointly produced by the Bolch Judicial Institute of Duke Law School and The American Law Institute. I am David Levi, President of The ALI and Director of the Bolch Judicial Institute.

Today, we shift our attention from one pandemic, to what might also seem like a plague: the plague of excessive force by police officers. This is an old and long-standing problem receiving new attention in the aftermath of the death of George Floyd under the knee of a Minneapolis police officer. 2014 also saw several killings of Black men by police officers where the underlying crime was a nonviolent offense. Now it is six years later and it is apparent that there is still much to be done to put a stop to these killings. It is a hard moment in our history and yet amid the pain and scrutiny, perhaps we may see a new chance for consequential reforms.

I'm joined by four distinguished guests today. Lori Lightfoot is the Mayor of Chicago. Prior to her election last year, she served on Chicago's Police Accountability Task Force and is President of the Chicago Police Board. Art Acevedo is Chief of the Houston Police Department where he leads 5,200 law enforcement officers and 1,200 civilian support personnel. He has served in law enforcement for more than 30 years. He is an advisor to The American Law Institute's Policing Project. Barry Friedman is one of the country's leading authorities on policing. He is the Jacob D. Fuchsberg Professor of Law at NYU and the founding director of the NYU Policing Project. He is also the chief reporter for The American Law Institute's Principles of the Law policing. Ashley Allison is Executive Vice President of Campaigns and Programs at the Leadership Conference on Civil and Human Rights. She previously served as the deputy director and senior policy advisor in the White House Office of Public Engagement.

Thank you all so much for taking your precious time to talk with me today. My first question is for the mayor. Mayor Lightfoot, you've been involved with police oversight for many years. You were chair of the Accountability Task Force in Chicago after the 2014 police murder of Laquan McDonald in Chicago. 2014 was also the year in which Michael Brown was killed by a police officer in Ferguson, Missouri, and here we are six years later. Can we put an immediate end to these kinds of police killings so that we aren't here on another cycle six years from now?

Lori Lightfoot: Well, good morning and I'm grateful to be part of this, I think, important discussion. Look, we'd all like to put an end to any police excessive force, particularly one that involves shooting. They are the most igniting and outrageous use of force, that really angers community members. So, minimizing any police-involved shooting is important.

Fundamentally, it goes back to I think a couple of things. One is, of course, training. But that training isn't just about how to use deadly force. I think the place where we have missed, and we need to recalibrate, is the sanctity of life question. Everybody knows this. Just because you can use force doesn't mean you should use force, and of the two most notorious ones recently, the killing of George Floyd in Minneapolis, this was compliant individual who was already in handcuffs, was expressing some concerns about getting into the back of a police vehicle, but certainly wasn't resisting arrest and certainly not one that warranted the kind of force that was used by the officers, in particular but not just exclusively, the knee on the neck. We had three officers who were literally having their full weight on his body, and of course we know that led to his death. More recently, we had a shooting at a Wendy's drive-in where the individual was running away and grabbed a taser, but by definition a taser is a nonlethal form of force, and yet running away, he was shot twice in the back by a pursuing police officer. So, what that says to me is that we are missing the boat in training our officers about the sanctity of life and why that has to be paramount in their thinking. Now, in those split-second decisions, officers are going through a long matrix of questions. That's why they've got to be trained. They've got to be trained in real-time simulations so these questions and these restraints get actually baked into the muscle memory of officers, so when they are in a split-second situation, they can lean into the practice and the training, and I don't think that we've done a good enough job on that anywhere.

Of course, officers get trained on use of force, but many departments don't have simulators so they can simulate the actual circumstances in which they're going to find themselves. They don't have simulated training facilities where they can be outside in an area that simulates what they're going to find in the streets of their city. That's the kind of training that we need. That's the training that we still don't have yet even in Chicago, and I think if we're going to continue to empower officers to use deadly force, we are making a mistake if we do not provide them with that kind of very real-time simulated training, so that it's not theoretical, it's real for every officer, and that's got to be re-upped every single year.

Levi: Thank you, thank you for that focus on training. Chief, you started as a patrol officer in 1986, and now you're chief of a gigantic metropolitan police department. It's a wonderful career. Can you give us the police perspective on why these shootings continue to happen and what we can do about it?

Art Acevedo: Well, good morning everyone. Madame Mayor, good morning to you and Barry Friedman and all, and Ashley. Thanks everybody for having me on it. I think that first and foremost we have to recognize that I echo everything that Mayor Lightfoot said, but also that there is no policy, procedure, training, there's nothing we can do to guarantee 100% of the time we're going to get it right. Human nature is what it is. These are dynamic situations. But I think we start building accountability in having officers be a little bit more critical in terms of their thinking by holding officers accountable.

If you look across the country, you will see a lot of situations where officers used deadly force. Truly, this “awful but lawful” that everybody talks about, that's deadly force that happened not because the officers absolutely needed to use force but because the officers... There's three prongs that I teach my officers, and you can go to our website and you can see when we go in and talk. Very first academy training with myself, my two executive assistant chiefs come in, we talk about three prongs that they have to process very quickly. Number one, am I within state law and the Constitution? It's pretty broad. The state law and the Constitution does not require you to tactically reposition, doesn't require you to create distance, doesn't require you to move out of the way of a moving car, it allows you to stand your ground like in civilian laws across the country, and we know what kind consequences that's had for a lot of communities, especially communities of color. And the second prong and the only required prong that they have to worry about is departmental policy. Departmental policy in most progressive departments is more restrictive. It'll require you to not shoot at cars, get out of the way of a car unless the car's being used as a weapon as we've seen across the nation. Some people say you should never shoot at a car. That's simply not doable when we have cars being used as instruments of terror across the pond and we know what happens there eventually will come here. But the third prong that we talk about with our cops, and I tell them it's the prong that makes them the heroes that the good cops are, that's the moral compass, that's that little voice in your head that says, "I'm not going to shoot because "I absolutely don't have to shoot to safe my life "or the life of another "or stop somebody from serious bodily harm." And I think that that third prong has to be embedded like Mayor Lightfoot was talking about, and you have to reward and celebrate that third prong as it relates to when we save lives because we chose not to deploy deadly force even though we were authorized under the Constitution and criminal law and under our policy.

So, there's a lot of work to be done here in Houston. We actually have reduced our officer involved shootings by 50% over the years, we've reduced them in half. There used to be about 40 to 45 a year. We're typically down below, well below 20 a year for a city of about 2.4 million people, regional 6.7 million people, 5300 police officers, and a lot of violence going on. But there's still a lot of work to be done. But we've got to hold people accountable, and that's the biggest piece that's missing. That can’t be done right now without training, without policies, without procedures. People understand bad shootings when they see it, but too many chiefs when officers completely abandon their training, when they abandon the tactics and get themselves in a situation where now they have to kill somebody, it could have been prevented, but unless we hold people accountable for those tactics, there's no sense in training if you're not going to hold them accountable for the training, and that's something else we need to discuss across the national...

Levi: Thank you. Professor Friedman, we've talked about training, we've talked about accountability. You've studied police departments. You're one of our top experts on excessive force, racism, over-arresting, profiling. How do you see these issues coming together here and what do you see as the solution or solutions?

Barry Friedman: So, I'm gonna agree and disagree with the folks who've spoken so far. The mayor and the police chief, who are friends of mine, I think that they're focused in the right place, but there's a critical element of this that we need to pay attention to.

So, everyone talks about accountability. It's exactly the right word to use in this space. But I think what we sometimes do is think of policing as being different than the governance throughout the rest of the country on different subjects. So, whether it's a zoning board or nuclear energy or environment, anything that government does, there's a model of governance that sort of falls apart around policing, and that's the thing that we need to focus on thinking about. So, when Chief Acevedo's talking about accountability, he properly is talking about holding individual officers accountable, and we call that back-end accountability. Something's already happened. But what's often missing in policing is front end accountability, and his remarks actually underscored that in a beautiful way that I think also emphasizes the importance of The ALI Project.

So, he said there's three things you got to think about. The first thing is the state statutes, the state law, and the Constitution, but they're pretty broad, he said. They allow a lot of things that his own department policies don't permit, and he's right about that, and what we need to do is think about what those laws are that operate that govern what happens, and it ought not, in my view, though department policies are incredibly important, but ought not to just depend on what any given department decides will be their policy. The things that he's talking about, de-escalation, being thoughtful about shooting at vehicles, using time and cover, those should be the law all over the country. And then if we had a stronger front end, then you get a transmission belt that we call a government, which is you have a set of policies and rules. Then like the mayor said, you train to it because that's what you train to. You don't train in the abstract, you train to what the law and policy is. Then, ultimately, it is easier to hold people accountable because everybody knows up front precisely what the rules are that are going to be applied.

People say all the time and I've heard a lot in the last few weeks that culture eats policy for lunch, or breakfast, or whatever meal that it's eating it for. But the fact of the matter is that's pervasively true throughout the world. We all live in cultures. The way that we deal with culture is we regulate it. We have laws and policies that we then apply and people have to learn that that's... The word compliance gets used around policing, but compliance is kind of the buzzword throughout The ALI and the world now in the corporate context anywhere, which is you have a set of rules and policies and then you ensure compliance around it.

And just to add one last word, we've talked about the killings in Minneapolis and the killings in Atlanta, but there's also Breonna Taylor, which was a SWAT raid gone terribly bad, and that's just another area that's unbelievably under-regulated in this country, and there's a role for tactical teams to be used, but that is the most intense deadly force that we use in this country, and the idea that it's not regulated at the state level in every state of this country is simply inconceivable to me.

Levi: Thank you, Barry. Ms. Allison, the Leadership Conference has had a focus on policing. In the last few weeks we have seen what would appear to be very strong public support for policing reform. What are activists and advocacy organizations like yours attempting to accomplish in the near and the long term?

Ashley Allison: Well, good morning everyone. Thanks for having me. So, the Leadership Conference is the coalition of over 200 civil and human rights organizations, and you're right, we have seen a groundswell of public will to change policing reform over the last couple of weeks. But two years ago, and many years before that, we were working on these issues because while George Floyd and Breonna Taylor and Rayshard Brooks are in the news now, there were names before, and there were names before Michael Brown, that police violence was taking its toll on Black and brown communities. This does feel like a watershed moment where we could have sweeping police reform that we haven't seen in this country, particularly on the federal level, for over 30 years. And while the Justice and Policing and Safety Act, which is something that we've been working very closely with members of the CBC and the House and the Congress to pass, that won't stop police violence if we don't change the hearts and minds of how people see Black and brown bodies in this country.

And while I protest, while I talk to friends that are activists, while I talk to people who work in Washington, DC and who are advocates, I believe it goes back to what the mayor said in the beginning. It is about the value of life and dignity and humanity and how people see each other, whether you have a uniform on or you don't. We saw protesters met by people who were white supremacists, not police officers, who were met with rifles and guns, who were mocking how George Floyd was murdered in this country, and that's just unacceptable, whether you are someone in the law enforcement field or whether you're just someone living in this country. We cannot tolerate that.

And so the conversation, I always say that the way we will change this country is through people, policy, but public will. Some would say that when Black Lives Matter started to trend after the death of Michael Brown and really started because of the death of Trayvon Martin, that the world was changing. And yet we saw month after month Eric Garner, Tamir Rice, Laquan McDonald, all the names to Sandra Bland, Alton Sterling, Philando Castile. That was just in 2016. Now we're in 2020 and there were so many names and there are so many videotapes that we have never seen and we may never know their names. And so we are just saying enough is enough. Hopefully we'll get into the conversation about divest, reinvest. We are not saying that law enforcement does not have a role in this country, but the way they show up in communities needs to be addressed.

So, I want to just quickly talk about what the Justice and Policing Act covers. There are eight prongs to it. It's saying that there needs to be a standard use of force so that law enforcement across the country understands what type of use of force you should use and when you should use it. We should ban chokeholds. We should've banned them before Eric Garner; we should've banned them after Eric Garner, and we now definitely need to ban them after we saw the murder of George Floyd. It's talking about ending racial profiling and religious profiling, having a registry around police misconduct across the country so that if one law enforcement officer does something in one community, they aren't able to easily transfer over to another after being terminated from one police department. It talks about making it easier for the Justice Department to bring charges. When I worked at the White House, people were so frustrated because we had a Justice Department under President Obama's administration that had the authority to go and investigate law enforcement agencies, but they didn't have the authority to charge and actually find a conviction. So, we're saying that changes need to be made to the 242 statute, no-knock warrants need to be eliminated, qualified immunity needs to be addressed, and then demilitarizing police officers. We have seen the overuse of force when people are protesting. We don't think these are radical changes. These are baseline changes that can make communities safer.

And I'll add one more thing. A couple years ago, we put a report out and toolkit to help guide community leaders called the New Era of Public Safety. It's about reimagining what life could be like living in this country with law enforcement and Black and brown people not having to be afraid to live their daily lives.

Levi: Thank you, thank you all for those very helpful, perceptive opening remarks. Let's drill down a little bit on some of these issues. Mayor, I'll put this to you but this is for the entire panel. Some of these killings involve volatile family disputes, homeless persons, persons with mental illness or drug addiction. Do we want our police to handle these kinds of calls and situations? Are they trained for it? Is this the kind of thing they should be doing? Or should we create a different kind of entity to respond to essentially social problems? The City of Albuquerque has just announced its intention to do something of the sort. Mayor, what are your thoughts?

Lightfoot: Well, I think picking up on one of the last comments that Ashley made, in a world in which we do not properly invest in communities that are suffering, whether it's investments in healthcare, mental health, jobs, grocery stores, the kinds of things that we know are essential to lead healthy, vibrant lives, the one governmental entity that shows up every day is the police department. And so, in the manifestations of our neglect are things that the police department then is confronted with when they answer those calls for service.

And so, I think as part of this conversation, we need to do two things. Number one, we need to really define what is the proper role of the police in public safety. And it can't be to be the drug addiction counselor, the homeless intervention expert, all the other things that should be part of a vibrant social safety net. That should not be the role of the police officer as the first responder. And so, I agree with that piece of it. But I think the other pieces then, then we do really need to step up and make sure that we're providing those kind of supports in communities so that when we get a call for somebody who is suffering mental duress or some other kind of mental health issue, that we have systems in place for the 911 operators and the dispatchers to ask the right questions, and then they should be dispatching not the police, but social service intervenors who can properly address what's there as need. And we got a lot of different call responder models across the country. I think that combining that and having the frontline responder in a lot of those circumstances be someone other than the police, one, will better serve the public, but also will take the police out of roles for which they're never going to be properly trained.

Levi: Chief, what are your thoughts on this? Patrol officers must dread these volatile family disputes and that sort of thing. What are your thoughts?

Acevedo: Let me just say that number one, in terms of domestic violence, that's one of our largest murder drivers in Houston. It is one of the most dangerous calls police officers can go to, so that's one that I think that once the police is called or someone else is called, we've already failed those families. What we have to do is build healthy communities and what really frustrates me is that in Houston, we have 1.2 million calls for service. that's not contacts, but that's actual calls for service, disproportionate communities of color that are suffering I would say the symptoms and the illness that lack of educational opportunity, mental health opportunity, economic opportunity, creates the tensions in those communities and the circumstances by which leads to violence.

So I strongly believe that what we have to do is build those processes to take away some of those responsibilities from law enforcement. We support that. But it's kind of like if you're in a stadium that needs to be replaced, you don't tear down that stadium until you build the new one and move into it. And so that was an analogy that a buddy of mine used the other day and he's so right, and that's what we're worried about because let me tell you what they're going to find out, a lot of these service... We're already doing, Madame Mayor, a lot of the things that we're talking about. We actually, at our communications center, a lot of people that call in mental distress, we don't ever send the police. We are actually diverting that or having counselors deescalate the situation, get the person help right there at the communication center. We're actually deploying our officers with mental health professionals in civilian clothes, in soft clothing, with a polo shirt on.

But you know what the truth of the matter is? There's not proper funding to expand these programs. The Houston Police Department Homeless Outreach Team, last year we transitioned because in order to get people off the streets, a lot of them have addiction and they have mental illness, and you never know which one came first, the addiction or the mental illness, because they intersect. But we were able to transition by building relationships with people in the community and the homeless community. We were able to actually transition almost 400 folks off the streets and into assisted housing. That's the police department doing it. The truth of the matter, what we're going to find out no matter who does this work, here we have 60% of the people that we go to a call where a crime's been committed, we don't even arrest them. We take them to the Ed Emmett mental health facility. The problem is within 12 to 72 hours, guess where they're at? Back on the streets. So no matter who handles it, when the need comes up out in the community, we're going to find out that there just isn't the infrastructure and the long-term investment to deal with the long-term treatment that those folks need.

So, there's a lot of work to be done, and to Ashley's point I think that what's given me hope is that the conversation is not just about the police right now. People are finally realizing Black, brown, Hispanic, rich, poor, that we've got to invest in communities that have been neglected for generations, and until we make those investments, I don't care what you do with the police, you are going to have tragedy and injustice, which is the underlying conditions leading to these conflicts have not been addressed.

Levi: So Barry, let me ask you this. As a structural matter, well, let me just back up. So many of these cases seem to originate in what we might describe as a petty offense. It's a traffic stop but not a DUI, it's not a threat. It's a $20 bill that may be or may not be counterfeit. It's a pack of cigarettes or it's a pack of small cigars, something like that. These are quite minor interactions, shoplifting at a retail level. No one should get the death penalty for such things. The police respond and then they arrest, and it's during that arrest that we get these killings. Should they be making arrests? Should they even be responding to these what we might call petty offenses? What about the summons or a citation? I'm not suggesting that we ignore petty offenses, but do they call for arrest?

And I'll just tell you as an aside, I did another one of these programs with some of our state Chief Justices, and they are very keen during this period of the coronavirus not to have the police bringing in people for detention in the city and county jails where they might be in danger of contracting the virus or spreading the virus. So why are the police continuing to arrest for nonviolent, minor offenses? Barry.

Friedman: So, we've sort of done two things wrong as a society and everybody else has alluded to this. Ashley brought up the phrase reimagining. We have a project at the Policing Project at NYU called Reimagining Public Safety, and it's actually trying to take apart what it is police officers are asked to do all day long and then to ask who's the right responder and what's the right response in all of those different situations? And instead, what we've done is we have kind of a one-size-fits-all idea which is that somebody calls and we send and armed officer. And we've just done that forever and as the rest of society has specialized, we have simply not done that around policing society, which is a broader word than the police. It's just how it is that we deal with things that happen out on the streets. And so, we do need to rethink that in a pretty profound way.

I recently had an op-ed about this in the Wall Street Journal. So the other thing is that we really need to think about the rest of government beside the police, and I think this is what the mayor and the chief have been getting at, and Ashley and I as well, which is that I'm watching everybody point fingers at the police, and I don't think anybody on this call is going to argue that it's inappropriate to point those fingers, but it does... I reflect on politicians pointing those fingers when I want to know where they've been for the last five, ten, 15, 20 years, because the conditions the police are dealing with were not created by the police.

The police didn't decide to defund mental health in this country, the police didn't decide to take resources away from dealing with people who lack shelter, the police didn't decide that we're going to have a war on drugs and we're not going to avoid substance abuse help to people. It was the rest of government. And all of the sudden the rest of government's had this great awakening which I think is important, but they ought to be reflective about the broader panoply of what we're offering people in society.

I want to zero in on something that you said, though, because I think this is what rethinking and reimagining has to be about. One of the areas we decided to focus on at the Policing Project is traffic. There are lots of people focusing on substance abuse and homelessness and mental illness and novel things happening, but there's very little attention being paid to just the most common thing that the police do, which is traffic enforcement. Now traffic enforcement has an important role in public safety as many people die on the streets every year as die from gun violence. And on the other hand, lots of things go wrong with traffic enforcement. Racial profiling, fines and fees enforcement, it's dangerous for officers and for individuals. And so rather than pointing fingers, what we ought to do is be reflective and contemplative and to try to learn and figure out how can we achieve optimal social outcomes and that's just not what we've done in society. Instead we've been like, "Call 911 and send a cop."

Levi: So, what I'm wondering, and maybe it's naïve and I'll maybe put it out there to the mayor and the chief just to respond to this. Suppose you were to, say, issue an executive order, mayor or chief, you put it into policy, and you just said officers may not arrest for nonviolent petty offenses and for traffic offenses that do not affect public safety, at least that pose no immediate threat, you just may not arrest. You can issue a citation or a summons. Would that avoid, at least in the short term, might that stop this cycle of killing and shooting and choking and et cetera that we see that leads to these tragedies?

Lightfoot: I'm happy to go first. I really think the premise of your question is not quite right. You think about some of these circumstances and I'll relate one that happened here in Chicago. We had an individual who was jumping between trains, which is very dangerous and unlawful, but it's a petty offense. The individual was found by our transit police. They had him outside of the train itself but in the train station. For reasons that again don't make sense to me, they were trying to put him in handcuffs and he was resisting but he wasn't fighting. He just didn't want to be handcuffed. And they absolutely could not get control of the circumstances. He kept resisting getting in cuffs. One of the officers said to his partner, "Shoot him, shoot him." Now again, this was not a dangerous situation. This person had not committed a felony. And so then when he heard that, he fled up the escalators onto the street and then you hear two loud retorts where the officer shot this individual twice. Luckily, he lived, but you think in that circumstance what went wrong there? And similar to Sandra Bland, similar to other circumstances.

So the issue isn't so much should they arrest, the issue is proportionality. In a petty offense, what is the proper response, and why is it that the training that the officers had didn't lead to a different or better result? Same thing with Rayshard Brooks in Atlanta in the Wendy's drive through. Those officers spent a half an hour talking to this man and suddenly somehow it escalates to the point where they're rolling around on the ground with him. Something is breaking down in these circumstances, and I don't think arrest, or not arrest is the issue. It's the training about how to come in, not at level 10, but with an eye towards deescalating circumstances that are petty and that really don't warrant a whole lot of police interaction, whether it's a ticket or otherwise. And that's, I think, where the training, again, comes into and has failed in a lot of these circumstances.

But I will also tell you your question of, hey, petty offenses, no arrest period, in many neighborhoods in my city that are incredibly plagued by violence, if we were to say,  “No, anything that isn't a felony you may not arrest,” the worry I would have is how that would actually get interpreted on the street. And people who are causing harm in communities, they are very sophisticated about what the instructions are that are given to police officers. We saw that during COVID-19, where officers were very reluctant to put hands on people. Obviously that dynamic has changed over the course of the last two weeks, but people who were causing harm, they knew exactly that they were never going to get arrested, that they were never going to be held accountable, and they felt like they had full control and dominion over the streets.

So striking the right balance in circumstances that are unique I think is important, but fundamentally if you look at these high-profile circumstances, and there are probably thousands of others that we don't know about, what it really comes down to is common sense and judgment about how to handle something that truly is a petty offense.

Levi: Art, you agree?

Acevedo: What I love about Mayor Lightfoot is she speaks so very similar, her views are very similar to Mayor Turner, and I've been a police officer 34 years and I've worked East LA, Central LA, South LA, here [in] Houston. Here's what people don't realize because they don't spend enough time in the community. Not the community of ten, that's a term I've coined over the years where it seems like it's the same people that come to City Hall speaking about the community, and when you look closely they don't live anywhere near the communities that are being impacted by these issues, but sometimes policymakers think that they represent the values, the views, and the priorities of the communities that they're speaking for.

One of the number one complaints across the board in the communities even with the most violent crime is actually traffic safety, traffic enforcement, because folks don't like the speeding cars and the peel outs and people acting the fool. Poor communities want to live in peace and in safety whether it's from bad policing or people that don't respect the streets, and I think Mayor Lightfoot hit it on the head.

By the way, I'm going to pick on the lawyers, and I can't remember if Ashley and David, you're lawyers or not. Lawyers have made it very difficult these days because right now, people are saying, well, let's look at Atlanta. We have a gentleman that's allegedly under the influence and I think we're going to find out he was, this call happens every night across the country because if you all remember when you were young, if you had a couple of cocktails on your way home, where would you go? To Taco Bell, you'd go to the drive throughs, and people that are under the influence, they fall asleep. Why do the people call us, the managers? Because sometimes people when they're under the influence and you wake them up, guess how they react. Violently. They're not trained to deal with that. And so in my city they were saying, "Why don't they just impound the car or just lock the keys?" There's something called a special relationship that we form as police officers when we come in contact with somebody, and if we let somebody opt out of that arrest and then they go home, even if we impound their car, what's to stop them from getting another car? And what people have to realize is that every action we take has a consequence, and sometimes unintended consequences that we're all going to pay for.

So, here's what I think about policing and what's happened. We have criminalized childhood in this country. We have criminalized adolescence. When Richard Cantero mentioned my mama in the ninth grade, he got punched in the nose. Well, what's happened since I was in the ninth grade, that same punch today in too many communities doesn't lead to the counselor, an apology, after school detention, it leads to a criminal summons. But we are hiring police officers that have never been in a fight. My god, in that case... When I was a young cop and even as this fat old man, if somebody resisted arrest, you had to be explosive, take them to the ground, handcuff them, you're done. But we've lost those skills because we have no communication skills. People don't talk anymore. We have got to deal with a lot of issues because the pool that we're getting cops from, they've never been in a fight, they're afraid to hurt people, so instead of just quickly getting the use of force over with, taking somebody down, handcuffing them, and dealing with it, they sit there and they just, I don't know what the word I want to use but I know it was inappropriate. But the truth of the matter is there's a lot of work to be done, but I think that once we have the conflict, we've already failed society, and I think that again, we have got to make sure that we're listening to the communities that are impacted most.

And I'm sorry, I don't think that Black and brown and poor communities, including poor white people because there's a lot of poor white people in this country that nobody talks about, and then people want to know why there's so much anger in poor white communities, they should not have to give up safety and security in order to get all the other opportunities of other communities. It should not be the either/or proposition, and I think what COVID showed the world that when COVID-19 impacted Black, brown, white, north, south, east, west, rich, poor, the Congress overnight printed trillions of dollars. I want you to imagine if we would've spent trillions of dollars dealing with housing, dealing with addiction, dealing with public health, dealing with mental health, dealing with jobs programs. We won't be having this conversation a generation from now. So if they could do it then, they could do it now, and it's about us coming together to make sure that we make those investments.

Levi: So Ashley, the next couple are for you really. From your perspective, how do we repair, can we repair and build trust of the police in minority communities?

Allison: So I'll respond a little bit to what the mayor and the chief said and try and answer that question even though I'm not sure I have a complete answer for that. I do think that we talked a lot about escalating versus deescalating versus engaging, and I think it is how you show up in the moment of the kid jumping the train. Are you showing up to be a guardian? Are you showing up to be a warrior? And that really does matter.

When you wake up one day and you're in a bad mood, it changes how you sometimes have conversations with people at your office that day, and at times you're like, "Oh, I'm sorry." Luckily, I don't have a gun that if I had the authority, sometimes when I'm mad, to use it if it escalates in a certain way. But law enforcement often has to make split decisions, nobody is discounting that, but it really is the mentality of how you even show up sometimes to decide whether or not you want to be a police officer. It's like who are we recruiting into law enforcement to be police officers?

I used to be a teacher, right, and there was a massive effort, I was a teacher in Brooklyn, New York, for high school special education. There was a massive effort to recruit people who wanted to come in and teach kids and didn't have preconceived notions about the neighborhoods they lived in, about their disability, but there hasn't been a really effort... It's like if you become a police officer in a Black community, it's like oh no, I got to put you over here in the friend category because that's just the way culture is experiencing law enforcement right now.

And I'll just share this anecdotally. My grandfather was a police officer in Youngstown, Ohio, where we're from. I'm not old enough to remember this incident, but I do know the guy who he said changed his life. He was the quintessential community police officer walking around town in his car, everyone knew him and who he was, and he encountered a young man one time that had some drugs on him and took him down to the station but didn't process him. He took him down to scare him a little bit, tell him this is what's possible, but then said, "I don't ever want to see you again." Did the speech, turn your life around, I'm going to check on you, I'm going to call your mom, I'm dropping you off back home. That man is in his 70s now and is still friends with my father because he changed his life, right?

Now, Youngstown is a lot smaller than Chicago and Houston, but there is something that you can interact with a person who is about to make a mistake and you can say, "Not on my watch." You can say, "You're going to make a mistake, "and I'm going to persecute you and put you in jail "and change your life drastically, "or I'm going to see you as a person "and give you the opportunity to make a mistake." And I think what's so frustrating to me is if we are honest, if we would've saw the video of Rayshard Brooks, and that video would've come out before George Floyd was murdered, the discussion about him would've been different because Black people and brown people and poor people often, but particularly Black and brown people, don't have the privilege of making a mistake.

We know that when Black people make a mistake versus a white person making the same mistake, they might not even be arrested, they definitely probably won't go to jail, and if they go to jail their sentence won't be as severe. We just know that, we have the statistics to show that. And so I think what folks are saying is that policy will help that, but there has to be a will to know we are all human, that people are treated differently in this society, and we have to stand up and say no. We have to do that for doctors when a Black woman comes in and is about to give labor and says "I don't feel right," and they pay attention to what's she's saying and take care of her when she's in labor, and we don't do that because of the maternal health race here. When somebody is saying, "My kid is having trouble reading in school," and we give them the right attention and we don't say they're stupid and just hold them back, we give them the services they need, and when a person is drunk at a drive through, the ability to make a mistake... I know so many of my friends that have DUIs that are white and Black who aren't dead, who aren't in jail, who are doctors now, and everyone should have the privilege of making a mistake. Can we repair the vibe between communities of color and law enforcement?

I think that the arch of the moral universe is long but it bends towards justice, and I think that statement applies here. It is a long road ahead. I appreciate, I saw the video of Chief Acevedo marching in the protest, that is a step forward, but that is not going to heal the wound. It will be the day when we don't have to see another Black person murdered on television, whether there's a video or not. It will be the day when we don't... Atatiana Jefferson that happened in Texas, or Sandra Bland, or Breonna Taylor doesn't happen.

We want people to stop being killed. That is the day that trust between law enforcement and communities of color I think will ultimately be resolved. I know when I am in distress and I need help, I call law enforcement, I rely on them. I know, though, that sometimes when I was told I needed to wear a mask every day, I was afraid. I have changed my lifestyle since COVID, making sure I don't walk on the streets wearing a mask at night. I shouldn't have to live like that, and I do it not just because of law enforcement, but I do it because of the Amy Coopers of the world who will call because I live in an affluent neighborhood and think I don't deserve to live here.

So, there are multiple layers to this conversation. I don't think law enforcement is going to be the one antidote to solve it. I think this configuration where we have public officials like the mayor, law enforcement, academics like yourself and Barry, and advocates like myself here will be a part of it. But one think I think is missing, I consider myself an advocate, is we actually don't have, to Art's point, we don't have a true activist right now on this call. As much as I would like to see it, I have only been to a couple protests. There are people who have been in the streets every day fighting, and we need them too. We need them to be a part of the conversation, we can't roll their eyes when they say things we don't agree with, because that ultimately will be a part of the change.

Friedman: So I'd love to, if I may, just echo two things that Ashley said. So, the first is she's right about the activists, and I know that there are many things that the activists have said that alarm folks, but the fact of the matter is we are seeing rapid change of a kind that we have needed for a long time and it is happening because of the street. I had a student years ago who did a study of what motivates legislative bodies in the policing space, and it was two things, it was court decisions that forced them to do things and it was salient moments, and this is a salient moment and it is causing us to get a lot of reforms that we've long needed. The group of ALI advisors, I mean reporters not in our ALI capacity, issued a report last week that basically was a long list of federal, state, and local reforms, many of which are happening and would not have happened because of the protests.

The other is just, I was really touched by Ashley's discussion about what ought to be the relationship between the police and members of communities because that has severely broken down. And we have a project going. I mean, I know I'm an academic but I'm a "pracademic,” in the mayor's own city, it's called the Neighborhood Policing Initiative, and the goal is to actually manage to connect officers to the communities in which they work by giving them time off of their radios to work with community folks, and also empowering the community folks to have a voice in how they are policed. And there's a pilot, though, the mayor and the police department has said they're going to roll it out through the city, but we've got some early results. And you know what's amazing about it, and I think this is the thing that really resonates in terms of what Ashley was saying was the cops who are doing it really like it, and the people in the community who are working with them feel like, and these are folks who just didn't want to have anything to do with the cops beforehand, are finding that there's a way to solve problems together, and that's the thing that I think we've really lost in policing at kind of the ground level that we need to get back, which is empowering the community to have a voice and work with the police in solving the problems in their communities.

Levi: So, let's go around the room so to speak and I'll start with you, mayor, I know your time is short. Would you please address the concept of defunding and also give us whatever concluding thoughts you would like to share, mayor?

Lightfoot: Thank you. Look, when I hear these cries for defunding, what I hear is we feel like we have been neglected, that we haven't gotten the kind of investments that we need, and it goes back to many of the things we've talked about today, and I agree with that. But the practical effort of defunding, because people who say defund, they say, "No, no, we mean defund. "We do not want more money going to the police." And what I know in Black and Brown neighborhoods in my city, not having a police presence would lead to total chaos. Now, some will say, "Well, yeah, but you've spent all this money "and the community's still unsafe," but the reality is police are making a difference in addressing really, really violent areas of our city, and the absence of any meaningful police force, we know what that looked like. We saw a glimpse of that through COVID. And while we would've expected the violence rate to go down in our city, when the police pulled back it went up. And going back to the statement that the chief made, you don't burn down and bulldoze a building and then not have a replacement. We have to be thoughtful in thinking about how we transform public safety in areas particularly where the police shouldn't be the first responders, maybe not even respond at all. I think that's a conversation absolutely worth having.

But the other thing I'll say, and these conversations around defunding never get to this point, in many police departments across the country that have historically locked out Black and Brown members, where communities are saying, "We want the police force to look like us, "to be more representative of who we are," those efforts have really taken place in earnest over the last five to ten years. If we defund the police literally, that means we're going to be getting rid of police officers on the basis of reverse seniority, which means we're going to be gutting our diversity that's taken us long years to build up. So, there's a host of reasons why literal defunding doesn't make sense to me. But really, I support, and we've been doing that in Chicago, of investing communities in ways that we really haven't done in decades.

And I think the last thing I will say because I do have to sign off is this: This, to me, is a moment where we listen first. What we've seen unfortunately is too many politicians pander to the crowd and react. But if we're going to really make meaningful, thoughtful change that'll stand the test of time, we need to listen first, and then we need to act with intentionality. And there's a lot of good, I think, expert testimony, expert thoughts, from people of all stripes that are informing this conversation. And yes, we need to have a sense of urgency because the status quo clearly has failed, but we need to be thoughtful and intentional about what we do to implement policies that actually will add value and be meaningful through the long term, not just pandering to the prevailing political whims in this moment. So, we're trying to be thoughtful and careful in Chicago, and I hope that becomes the prevailing national discussion. So, thank you all.

Levi: Thank you, mayor. Thank you, thank you. Ashley, let's go to you. Defunding and concluding thoughts.

Allison: I said it earlier, I think there's a role for law enforcement in our communities. I think we have to reimagine what that role is and how we get there, the process to get there. I do think that there's a lot of federal funding that goes to police departments. I think that there needs to be some accountability that if you receive federal funding that you have to take certain steps to make sure the training is appropriate, that your use of force policies are appropriate. Money is power, and so that is the ultimate thing that will determine, that is a request that many advocates have, and so I do think that there is a role for police, but we do have to be bold, we do have to be courageous in this moment, and we do have to listen to the people who are really hurting to help us get to the place where people can trust law enforcement again and people can live in safe communities regardless of their economic or racial background.

Levi: Thank you. Chief?

Acevedo: Well, it's been a great conversation. Look forward to continuing to lift up the voices of the folks that we've been listing to, because just listening is not enough. Listening has to turn into action, action has to turn into results. So, we are going to be that voice for these young people that we've been marching with. But let me just address two things really quickly.

Defunding I've already talked about a little bit, but no one's talked about the militarization, demilitarization, a little bit Ashley did. It's not about the equipment, it's not about whether or not we should have long rifles because, let's be really clear, this is the most violent society in the free world. We have weapons here, really bad actors and sometimes crazy people that just think back to Dayton, Ohio last year, where a madman with hate in his heart, whatever was his problem, I think murdered nine people. That was the night when we went to bed thinking about El Paso, we woke up the next morning with Dayton. That man was about to enter a very crowded bar with an assault rifle with a hundred round drum magazine, and it was a Dayton police officer with a military-style rifle that was able to end that threat before that man killed somebody. The other thing that people don't like are the armored vehicles because they are military, but the only offensive capability of those vehicles is to run somebody over. You can do that with a car, you can do that with a bicycle, you can do that with a horse. We had that one incident here. But think about what those are for, if used properly, for a citizen down in an active shooter situation rescue, officer down. And then I'll never forget last time with the Obama administration, we were talking about these issues. I had a press conference with Michael McCaul, the Chairman of Homeland Security on the House side, and I said "Come on," and I was in Austin at this time, Austin, a very progressive place, I said, "Let's have a press conference at my SWAT office. "I want to talk about this issue." And I talked about the MRAPs, those big old things that they brought back from Iraq. We the American people have already paid for these, and I said, what people don't realize that and again, in rural parts of this country where help is far away, they are high-water rescue vehicles and they're vehicles that have capabilities to go out and find people, with global warming this is going on more and more, here in Houston during Harvey and Imelda, we're using these military surplus vehicles to rescue the American people.

And so, to Ashley's point, it's not about what equipment you have, it's not about what funding you get, it's about the policies, the procedures, the training, the oversight, the command and control. You've got to be transparent in how you're going to use it. You’ve got to be consistent in how you're going to use it, and you've got to demonstrate to the administration that's giving you this equipment and this funding that you have all the systems in place to ensure that they're used only under the right circumstances. So, I look forward to, again, lifting up my voice on behalf of the people we serve and the men and women we lead. Thank you all.

Levi: Thank you, chief. Barry, concluding thoughts?

Friedman: Sure, so I guess there's three things I want to say that respond to the collection of things that others have said. I'm sympathetic to the argument that there's a role for this sort of equipment that the chief is talking about, but one of the things that we all ought to realize about the defund movement or the abolish the police movement is it took a lot for society to get to that point, and it took a lot of bad policing to get people to say we actually want the police out of neighborhoods that have issues with crime and violence. And so, the problem we have is that there's just been this huge loss of trust and the question is what regains it, and we have to be thoughtful about that.

The second is a technical legal point, but I want to make it because I know Ashley's on the Hill and people are talking about the federal government affecting change, and everybody talks about conditions on spending grants and I just want to urge everybody not to forget Section 5 of the 14th Amendment because on issues like use of force and racial profiling, I think there's cause for the Congress to actually step in aggressively and say, “This is the way things are going to be throughout the country, and we don't even have to tie it to national grants.”

And finally, at a moment where people seem very much at loggerheads, I want to at least try to make a point of connection, which is there is a way in which the very strongly-worded defund movement shares a lot of commonality with what a lot of cops would say. And we’ve got to seize on that commonality and make it work, and it's been an underlying theme in this entire conversation, which is that in the defund movement, people feel that resources have gone to the police when other responses were appropriate to very serious social problems, and the police would be the first to say they are not the ones to be responding or at least primarily responding to those social problems. So now is the moment to actually hear from the protestors and the police and start to think about what a different world looks like in which we are not simply using this one-size-fits-all armed response to all the problems that society faces.

Levi: Thank you, thank you Barry, thank you all. That was such a great conversation. Thank you for sharing your wisdom and your knowledge. The challenges that you face in your work and that we are now facing as a country are so complex and difficult. How fortunate we are to have people like you addressing these challenging and tragic problems and circumstances. A lot is riding on how we handle these issues, including the realization of our hopes for a justice system that protects and serves all Americans. We certainly wish you well and we look forward to being of service, of finding ways to serve you and your efforts in these respects.

This has been Coping with COVID, a podcast and video series produced by the Bolch Judicial Institute at Duke Law School and The American Law Institute. I am David Levi, thank you for joining us.