How to Reform

While I agree with those demonstrating in the streets that reform is necessary, I’m concerned that the gulf between the objectives that the demonstrators presumably want to accomplish based on the interviews I’m hearing and the means at hand to accomplish them is too great for them ever to be accomplished. In the interests of furthering the discussion let me propose my program for improvement:

1. Eliminate qualified immunity

“Qualified immunity” is the legal doctrine by which government officials including police officers are shielded from suit for discretionary actions performed within their official capacity. It also needs to be clearly understood that no action that is expressly against the policy of the jurisdiction by which government officials are employed can be deemed “within their official capacity”.

2. Sovereign immunity should be restored

There has been a movement over the last half century to allow state and local governments to be sued for the misconduct of government officials. The City of Chicago was sued for the misconduct of Jon Burge and those under his command. I have no problem with with people being sued over their own malfeasance. I do have a problem with the people of Chicago continuing to pay for things that are beyond their control. The accountability should be at the ballot box not from the public purse.

3. Reduce the power of police unions

Police unions are among the impediments to providing necessary discipline to police forces.

4. Better training for police officers with more community involvement.

IMO if all of those things were done in combination it wouldn’t unconditionally eliminate the greater problem that people are demonstrating about. It might mitigate it somewhat. I don’t know what measures would unconditionally eliminate the problem in a country of 330 million people.

15 comments… add one
  • CuriousOnlooker Link

    My hobbyhorse is to rethink how police handle tactically stressful situations — incorporate methods of crew resource management from the airline industry.

    The skeptic in me says all manners of reforms will have disappointing results. Policing issues are downstream from the cultural issues that are the source of the problem.

    Imagine a high trust society like Scandinavia in the 1960’s. I imagine they could have functioned without a police department at all. The demand for police in this society is because it is a low-trust society that is also dysfunctional. The police are the tools of last resort to keep order. If the reforms make the police less effective at keeping order, the demand does not go away; it results in private security like gangs and mafias (who won’t be accountable to the public).

  • Although I think that trust is a factor I don’t think it’s the only factor. I think our society is transitioning from a guilt society to a shame society but a shame society demands vastly more police presence to maintain order than a guilt society does which would mean a drastic change in how we manage things.

  • Guarneri Link

    I would say a shameless society, where personal ends justify means. A form of nihilism.

    Anyway, don’t be too lazy to not listen to Carlson’s 20 minute piece.

  • steve Link

    Cowen and Tabarrok have been linking to people who provide links to many studies on what would improve policing. The one today was especially good. She advocates for not just trying new things but monitoring fro results and being willing to accept that your favorite idea may not work. As always, need good studies and usually need more than one or two. I did think it interesting that one o the studies to which she linked suggested that internal monitoring was more successful than external monitoring. I had always been inclined towards civilian advisory boards being a good thing. Maybe they arent, or maybe its a bad study, but at least suggests we cant assume the boards help reduce police misconduct. (Since one of her studies suggest police unions have a negative effect and I already believe that it must be a good study!)

    Your list is fine, but I think I would prefer keeping some qualified immunity but narrow it if that is feasible.

    On sovereign immunity I understand your logic, but if the city as policy allows police to use chokeholds shouldn’t it bear some responsibility for maintaining that policy? My thinking, and IANAL, is that if the city bears no financial responsibility it doesnt much impetus to change the policy. If a police officer chokes someone to death the claim chokeholds are consistent with policy. So we have a circle here. One way to read that is if the city realizes it will cost millions to maintain a policy that is not needed. How would you suggest we change that?


  • CuriousOnlooker Link

    I believe what Dave is getting at is without sovereign immunity, elected officials have less incentive to manage the government.

    i.e. For an elected official, there is a policy choice between (a) reducing risk of an incident, but lowers chance of reelection. and (b) do nothing, incident occurs and the government pays damages.
    Elected officials would choose (b).

    What Dave wants is make politicians face a choice between (a) and (c) do nothing, incident occurs and lowers chance of reelection. Then (a) is a lot more attractive.

  • TarsTarkas Link

    ‘internal monitoring was more successful than external monitoring.’

    That may especially be true today where civilian advisory boards too often seem to be dominated by SJW’s who believe policing is ipso facto a bad thing and we need less of it if not none at all.

    ‘My thinking, and IANAL, is that if the city bears no financial responsibility it doesnt much impetus to change the policy.’

    It’s not the city that needs to bear financial responsibility (because that means the taxpayers), it’s those in the chain of command who need to bear financial responsibility. That may be a bit more than tricky to figure out, of course, but when it’s someone else who pays for my fecklessness, I don’t get taught a lesson (unless I get voted out as a result).

  • Andy Link

    I think police culture is a big factor that explains why external monitoring is not as effective. Police are, in a sense, their own tribe, and “civilians” generally are considered outsiders. So police have a culture that produces the blue-line mentality and skews perceptions about the conduct of officers in the officer’s failure.

    And as a general rule almost any group treats criticism coming from the outside with much more skepticism, as anyone who spends time on political blogs understands.

    Also, if I remember correctly, some new research came out last year that showed that black cops were just as likely to shoot suspects as white cops regardless of the race of the person shot.

    So I see this issue as not one primarily about race or bias about race, but one about the culture of policing and how police forces are managed, organized and held accountable for their actions. So I do agree that police reform is the most important end goal and not the vague handwaving out implicit bias and white racism that dominates by Facebook feed.

    I think you have some good suggestions, I would add two things:

    – Better training and standards of escalation of force and procedures when interacting with the population. I’ve mentioned it before, but the military had better and more effective procedures for policing in Iraq than was apparent in places like Fergeson.

    – Secondly, it seems that a lot of these incidents come from officers with established records of questionable conduct. There ought to be better HR practices to ensure those types of people are not in positions where they will have those types of interactions. They don’t necessarily need to be fired or demoted, but it’s important to put the right kinds of people in the right positions. Those who are hot-tempered or exhibit a lack of control in stressful situations should work a desk or some other policing function that doesn’t involve the daily potential for violent interactions with citizens.

  • CuriousOnlooker Link

    Andy; I think the second point is quite important.

    Without a viable career alternative in cases of questionable conduct; Police Officers and Police Unions will resist. Policing is one of few well paying “bluish” collar jobs left, many police officers don’t have viable alternatives to support their families.

    A strict disciplinary system could create perverse incentives. The easiest way to avoid discipline for excessive force is to do nothing.

  • Andy Link

    Yikes, my apologies for so many errors in that comment. I should have looked it over before the edit timer expired. I hope the gist is clear, however.

  • So I see this issue as not one primarily about race or bias about race, but one about the culture of policing and how police forces are managed,

    That’s certainly my view. I also think that black folk frequently assume that things are easier for white folk than they actually are. “If I weren’t black this wouldn’t be happening to me.”

  • PD Shaw Link

    I think qualified immunity reform doesn’t really change much if anything. We have a common-law constitution, which contains broad principles, which judges turn into rules that balance various economic and social interests, including those of the courts. Courts might be more willing to make broad constitutional claims if they are only prospective. This is at least partly because courts understand the monetary awards come from public coffers, generally meaning less funding for various social services. In any event, judges are policy makers in common-law systems, and if qualified immunity is removed, I strongly assume that judges will change their rulings in other areas to reflect those concerns.

    The main question is why do local governments indemnify police officers in civil rights cases to begin with? The answer presumably is that police officers probably couldn’t pay many claims and would file bankruptcy. So the system values redress to victims over deterrence effects.

  • steve Link

    I think it is mostly culture but there is definitely racism mixed in. Note that when you ask police (self survey) even they admit they are more likely to use force on black people when they are behaving the same as white people. I also find it kind of hard to believe that only black people know how to use smartphones. If we had a video of some police sitting on a white person for 9 minutes while they died it would have surfaced by now. Shooting the 12 y/o with the toy gun. Shooting the guy in the toy store with a toy gun.

    I like Andy’s two points. I would add that in big cities where this would be doable we ought to have mental health response teams rather than or along with police for dealing with the mentally ill.


  • I think it is mostly culture but there is definitely racism mixed in.

    Sure. But systemic racism? If if the issue is that there are any racist cops, isn’t the only short term non-incremental solution complete separation of the races?

  • This is at least partly because courts understand the monetary awards come from public coffers, generally meaning less funding for various social services.

    That’s why I coupled elimination of qualified immunity with restoration of sovereign immunity. What you’ve described is only a factor because people can sue cities and states for malfeasance by individual government officials.

    You should be able to sue Burge; you should be able to sue his bosses; you should be able to sue his subordinates. You shouldn’t be able to sue Chicago. It moves the incentives towards individual responsibility.

  • Andy Link

    There were two interesting studies that came out in the last couple of years:

    – Last year a study was done on police shootings by the race of the officer and it found that black officers were no less likely to shoot people than white officers were.

    – A 2017 study examined transcripts of traffic stops and found that cops were consistently less respectful and used harsher language with black motorists – this was true for all cops, including black cops.

    I haven’t done a survey, so there may be more examples and studies out there, but this is one reason I turn to police culture. If this was merely about white people being racist (or even a few “bad apples”), then I would expect to see substantial differences between the conduct of white and black officers as one example.

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