by Paul Butler
The problem with all the focus on perceptions about the police is that it can cloak aggressive policing in enhanced legitimacy, and it has the potential to blunt the momentum for rising up against overcriminalization, wealth inequality, and white supremacy.
Tracey Meares, a law professor at Yale, argues that we should encourage “rightful policing”––police officers should not only obey every constitutional requirement and administrative rule; they should also “comport themselves in ways that confer dignity on those with whom they interact and otherwise treat people with respect.”154 In this framing, the ideal form of policing is both lawful and legitimate.155
Of course Professor Meares is correct that police officers should be polite and comply with the law in their encounters with citizens. But lawfulness and legitimacy are not enough. If existing law is too tolerant of police violence, then “rightful policing” might fail to address the substantive shortcomings of the criminal justice system. Any procedural justice reforms need to be accompanied by substantive reforms if they are to have an impact beyond public relations.
President Obama’s Task Force on 21st Century Policing provides a way forward. The proposals in the final report were a mixture of procedural justice and more substantive proposals.
First, the Task Force urged “law enforcement agencies [to] adopt procedural justice as the guiding principle . . . for . . . their interactions with rank and file officers and with the citizens they serve.”156 The first of the report’s six “pillars” was “Building Trust & Legitimacy,” and the Task Force proposed a number of procedural justice reforms, from transparency measures to tracking the level of trust in the community.157
At the same time, the final report included a number of substantive proposals that addressed or at least acknowledged deeper issues. Examples include independent investigations of deadly-force incidents, bans on racial profiling, and the establishment of civilian review boards.158 Moreover, the Task Force acknowledged that the criminal justice system “alone cannot solve many of the underlying conditions that give rise to crime,” and that policymakers must “address the core issues of poverty, education, health, and safety.”159 White supremacy does not make the government’s list of issues that policymakers must address, but policing will never be adequate until we address inequality.
THE WAY FORWARD
Barack Obama was wrong when he said, “What happened in Ferguson may not be unique, but it’s no longer endemic. It’s no longer sanctioned by law or by custom.”160 What happened in Ferguson is both endemic and sanctioned by law.
President Obama came closer to the truth in another speech about race, this one made on the fiftieth anniversary of the “Bloody Sunday” police violence in Selma, Alabama. There he said:
What greater expression of faith in the American experiment than this, what greater form of patriotism is there than the belief that America is not yet finished, that we are strong enough to be self-critical, that each successive generation can look upon our imperfections and decide that it is in our power to remake this nation to more closely align with our highest ideals?161
“Remaking” the country sounds more like a radical project than a liberal one. Yet it is exactly what must be done for people of color to be as free as white people. The system is now working the way it is supposed to, and that makes black lives matter less. That system must be dismantled and the United States of America must, in President Obama’s words, be “remade.” The final chapter of this book suggests a beginning. But first I want to give some practical advice to African American men who find themselves in the snares of the Chokehold.
7
If You Catch a Case: Act Like You Know
If you are an African American male, police and prosecutors are waiting for you. Watching and regulating the conduct of black men is a major part of their work. Cops are eager to stop and frisk you. They are looking for a reason to arrest you. This will improve their reputation on the force and their precinct’s numbers on Compstat, a management system used by major police departments to track crime. If they make enough stops and arrests, they might make detective. Prosecutors too are working to enroll you in the system. When I did that work I got the most credit for winning convictions, which I obtained mainly by forcing defendants to plead guilty. If the judge sentenced somebody to substantial time in prison, I got high fives all around the office.
This is how the Chokehold works. But there are things that you can do to disrupt its grip. You should resent having to do these things. They severely curtail your rights as a citizen of the United States, and as a free human being. The final chapter of this book is about how to bring down this entire system.
In the meantime, if you want to avoid getting caught up in the snares of the Chokehold, here is a guide to navigating the system. And if you do catch a case, here is advice from a former prosecutor about how to manage the criminal process. And not just any prosecutor, but an African American male prosecutor who has had the same kind of bad interactions with the police as many of my brothers. I’ve been stopped and frisked by cops more times than I can count; I have been thrown against a car by police twice; I have been arrested, and I have been prosecuted myself, for a crime that I did not commit. I beat my case and if what I did can be of any use to anyone else who has caught a case I am happy to share it.
HOW TO NOT GET STOPPED
If the police want to stop you, they can almost always find a reason. Remember, under the “reasonable suspicion” legal standard that allows the police to detain you temporarily, you do not have to be doing anything illegal. As a practical matter, “reasonable suspicion” can be anything that strikes the police as unusual or that makes you stand out. In addition, in cities like New York and Baltimore, courts have found that if cops don’t have a reason to stop you, they can just make one up—with little fear of consequences.1
So the task is to make the police not want to stop you, to cause them to lose interest in you, to turn yourself into the invisible man. There is some obvious stuff: Don’t drink alcohol or smoke weed in public places. Don’t ride in a car or hang out on the street with people who might have guns or drugs on them. Understanding that cops use low-level misdemeanor offenses as a way to catch black men, you have to exercise proper caution.2 No riding a bike on the sidewalk. As an African American man, you are better off peeing in your pants than urinating outside.
But you already know those things. Most of what attracts the police to you is subtler. Here are some other things that are suspicious to the police. These tips come from police officers and defense attorneys. I don’t mean that these factors provide legal reason for the cops to stop you. Rather, they draw attention. They extend the hard stare to active surveillance.
Three or more black men in a car at any time
Black man in a new or late-model car
Black man in a black SUV
Black man in a car with tinted windows
Black man with a white woman
Black men in a group laughing too loudly
Black men play-fighting or joking around physically
Black men raising their voices
Black men in any sort of disagreement or argument
Black man running fast
Black man in a hoodie
Black man with low pants
Black man with a T-shirt that says “Black Lives Matter”
“Racial incongruity”—a legal term meaning being in a place where members of your race usually are not
The law of stop and frisk enforces a conformity about race but also restricts any kind of standing out from the crowd. “Suspiciousness” is an ideological bundle of sticks. It discourages acting different from everybody else, looking weird, or not living up to a police officer’s expectations about how a black man should act. The cops don’t only enforce the criminal law; they also enforce the politics of respectability.
Many will rebel. The black teenagers with their pants hanging down their behinds know that it makes the
police look at them extra hard. They do it anyway, in the name of free expression. Mad respect. But if you do not want to deal with the cops you must understand that the country African American men live in is not free.3 So basically don’t stick out. And if you are unfortunate enough to attract the attention of an officer, you must find a way to send the message, without a word, that you are safe. There is a specific way you should, as an African American man, look at a cop. You want, just by your gaze, to communicate respect and deference, but not fear, which is interpreted by the police as a sign that you are guilty of something. You have to demonstrate not only that you are safe but also that you are compliant. This is an actor’s trick. Of course when a cop is trying to decide whether you should be detained, you are afraid. And, to preserve your own sense of self-worth, you should not actually feel compliant. What is required, though, is a performance, to keep you safe. The gaze is everything. Practice at home or with a friend.
It is usually not a good idea to run or otherwise attempt to evade cops. As discussed in chapter 3, this gives the police a legitimate reason to stop you, even if they did not have one before. Indeed the only situation in which you should even consider running is if you know you have contraband on you, or you know the cop does not like you, and you think that if you run, you will not be chased. In Baltimore, for example, the word on the street is that the cops don’t chase most people who run.4 That is why Freddie Gray took off when he saw the cops. He didn’t have anything illegal on him; he probably just did not feel like being bothered that day.
So, again, if the practice of your hood is that the cops don’t chase folks, running might occasionally make sense for a brother. But even in those places, unless you have contraband, it’s probably safer to take your chances with staying put. Running will, at minimum, draw the attention of the police to you, and for an African American man that is never a good thing.
HOW TO PREVENT A STOP FROM TURNING INTO AN ARREST
None of the above worked and you have been stopped. There’s still a good chance things will work out; most stops don’t turn into arrests. Here’s what you can do to be one of the lucky ones.
The following tips apply to people who get stopped by the police in public. If the cops come to your house with a warrant for your arrest, you’re going down. Skip ahead to the section about how to find a good lawyer. But most people get arrested on the street, following a stop. And, drum roll please, here is some rare good news for black people about the police. In cities where studies have been done, African Americans who are stopped are less likely to be arrested than white people.5 This is because the police frequently use any dumb excuse to stop a black person, whereas they are more likely to stop a white person for something that actually is suspicious, and which leads to an arrestable offense.
Okay enough good news, now back to the regularly scheduled programming. Much of what you think about how the police are supposed to treat you is wrong. No, they don’t have to tell you why you are being stopped. If you end up getting arrested, they do not even have to explain what crime you are being arrested for.6 If you get patted down, they don’t have to get someone of your same gender to do it. A female cop can frisk a man, and a male cop can frisk a woman. In twenty-four states, if cops ask for identification, you have to produce it, or you get arrested. These states are listed in the endnotes.7
These tips for avoiding arrest are not foolproof. If the cops want to arrest you, maybe because they have a quota to meet, they will. However, if it’s just a routine stop for a petty misdemeanor, the cops usually don’t care too much about letting you go. It’s not like they think they would be letting a hardened criminal loose. As we have seen, police stops don’t have much to do with public safety.
The most important thing you need to know is this: A stop is a masculinity contest between you and the police.8 You must let the cops win. It’s all about machismo, regardless of whether the cops are male or female. They are stopping you to demonstrate their dominance of the street. Here’s how you pretend like you acquiesce:
Address the police as “Officer,” “Sir,” and “Ma’am.” Never raise your voice. Don’t make jokes or communicate any kind of irreverence. Do not let the police provoke you—even if they are treating you with contempt. Unless the police start hitting you, do not ask bystanders to record the stop. Don’t object if people are recording, it’s a good thing, and you should do the same thing for another brother or sister. But at this moment, when you are trying not to be arrested, if you yell for someone to start recording, it will make the police angry. This is not a time for civil liberties. This is a time for being dominated by the state, and acting like you like it.
The cops will ask you a bunch of nosy questions, like “Where are you going?” and “What are you doing?” and “Who do you know around here?” They will want you to name names and provide addresses. They usually ask how many times you have been arrested, and if you are on probation or parole. Say as little as possible, but answer the questions they can find out by running a computer check.
Never admit to any offense other than a traffic infraction. If you actually committed the traffic infraction, admit that. But any criminal offense—regardless of whether you did it—you should remain silent. It’s just like you hear on TV: anything you say can and will be used against you.
Police lie. It’s perfectly legal.9 If they have separated you and your friend, and they tell you your friend has implicated you, do not believe them. If they say, “Just admit you broke the law and we will not arrest you,” do not believe them. If they say they know you were acting in self-defense or that somebody just gave you the drugs to hold, do not trust them.
It is best not to assert too many rights. If you are not sure whether you actually are being detained, politely ask, “Officer, am I free to go?” If they say “no,” don’t ask them what their reasonable suspicion is. Do not, at this point, ask to see an attorney (you don’t have a right to one during a stop anyway). Do not ask if their body camera is on. Don’t ask why they are touching your private parts or going in your pockets. Never tell cops, “You can’t do this.” It sets them off, and, under the law of the streets, yes, they can.
Here is one major exception to the recommendation that, during a stop, you do not assert your rights. If you have contraband in your possession—illegal drugs or a gun—and the cops ask if they can search, you must politely say no. This may seem obvious, but police claim people who are carrying say “yes” all the time.
Can that be true? Not always. Sometimes, in court, the police say there was consent and the defendant says there was not. If there is a credibility contest between the police and a defendant, judges almost always believe, or pretend like they believe, the cop. You, the black suspect, do not get the benefit of the doubt.
But, according to police officers that I trust (not necessarily trust on the street; I mean I trust them to give me the real deal), it’s quite common for people who possess illegal materials to agree to be searched.10 This is stupid, don’t do it. My cop friends theorize that the suspect consents because he thinks that if he says “yes” the police will not actually search him, or thinks that when the cops find the contraband, they will give the suspect a break because he consented to the search. None of this is true.
There is some information you can volunteer that might make a difference. If you have a close family member or friend who is a police officer, let them know that. “Close” meaning you know his or her cell phone number by heart and you can tell the officer to call that person right then and there to vouch for you.
If you have a job, let the cop know. Ask if you can show them your work ID. The same goes if you are a student.
For men, crying almost never helps, and often makes things worse. Women, particularly white women, have more latitude but even then it depends on the officer. It should be reserved as a last resort, when the officer is opening up the handcuffs.
IF YOU ARE ARRESTED
As far as cooperating with th
e police to get them to let you go, game over. They are not going to unarrest you. Everything from this point on is adversarial. The cops are officially out to get you. Your job is to give them as little to work with as possible.
This starts with being physically 100 percent submissive. Your tone should remain quiet and respectful, even during the more invasive search of your body and your immediate surroundings that the police are allowed to do once they have arrested you. Don’t threaten to call the chief of police, your city councilperson, the NAACP, or the local news. Hold your hands out for the handcuffs. Bow your head down to get in the squad car.
Your performance has now become more difficult because you are angry and even more frightened. But things will get much worse if you pick up a charge of resisting arrest or assault on a police officer. That’s usually a felony, even if the crime you are being arrested for is a misdemeanor. Being taken into custody for a low-level offense is extremely unpleasant and inconvenient but odds are, even if you are convicted, you will not go to prison, unless you have several other convictions under your belt. And there is still a possibility that the prosecutor will drop the charges after the arrest. But if you catch a charge of resisting arrest, all of that goes out of the window. You might as well start deciding what you are pleading guilty to.
To avoid that additional charge, understand that cops can be sensitive, even prickly, when it comes to their own personal space being invaded. Ironic, I know. But any physicality on your part can be misinterpreted.11 So when you are arrested, you have to communicate to the police that your body is theirs to work with.