October 22, 2020
The first panel of The George Washington Law Review Symposium, “Encountering the Police,” was moderated by Professor Mary M. Cheh (Elyce Zenoff Research Professor of Law) of the George Washington University Law School.
The first panelist, Professor Mary Fan from the University of Washington School of Law, presented “Show Me the Video (Body Cam and Dash Cam Video).” Professor Fan highlighted the unique time our society finds itself in—a time where almost everyone has access to a camera. Professor Fan discussed the difference a camera can make in combating injustice and that the identity of the video recorder matters. A brave person can take a video on their way to work to record something that they thought was wrong. Alternatively, supposed vigilantes can record themselves committing crimes, as was done in the Ahmaud Arbery case. Further, Professor Fan stated it takes actually seeing civil injustices to spur action, to galvanize the rise of racial reckoning, and recover civil rights settlements.
Professor Fan posited that policing is performative because officers are taught to have a authoritative presence and to demonstrate command of the street. According to Fan, camera recordings have, in part, sharpened officers’ performance. Using the George Floyd case as an example, Professor Fan described how the placement of the knee on Mr. Floyd’s neck and the presence of passerby recording the incident with their cameras inflamed the officer’s performative masculinity.
But although recordings may instigate harmful officer behavior, Professor Fan argued that these video recordings can undermine the credibility of a police report. Typically, the justice system provides deference to law enforcement and written police reports because they are crafted to weigh in favor of the police. A police report might say that officers were able to “control the suspect,” but fails to share what they did to obtain control. In a workshop Fan recently led, she shared the police report in the Kenneth Simmons case with participants, and many of them believed the police acted reasonably. Professor Fan then played the body camera footage from this case where participants could see the police pulling down his pants, pulling up his boxers, and placing their fingers near his body cavity, acts comparable to a sexual assault. After witnessing that footage, all participants unanimously agreed that this was not a reasonable use of force to “control” him. Footage creates the power to contradict the official story, arms courts with the ability to doubt police testimony, and begins to right an imbalance of power.
While the hope of body camera footage is to de-escalate tense situations, prevent harm, and provide tangible evidence, Fan admits that empirical findings on these effects are mixed. Some studies show a reduction of the use of force, but others have detected no effect on police use of force and an association with an increased rate of assaults against officers. Fan pointed out that the use of force increased among those who do not use body cameras versus those who do, which brings us to the missing video problem. Many department policies are silent regarding the sanctions for police officers that do not use their cameras. While there are possible judicial remedies, there are some roadblocks to their use. While one might use the spoliation doctrine, whether a party seeking sanctions must show bad faith varies across jurisdictions. A central problem with due process claims is that it is difficult to show bad faith on the part of the police. Instead, Professor Fan suggests that victims might be better off asserting claims to establish adverse inference and witness preclusion as better remedies for a missing video, rather than make difficult constitutional claims.
The second panelist, Professor David Harris, Professor of Law of the University of Pittsburgh School of Law, presented “Two Poisons: How Race and Fear Increase the Danger of Police Encounters.” Professor Harris explained that the role of race and fear place police in positions to commit violent acts against people of color. His research centered on the question, “why does this keep happening?” Simply put: race and fear. Harris claimed that social psychologists have blazed new trails to show us how race affects police encounters in precise ways. Harris cited two landmark studies, “Seeing Black: Race, Crime, and Visual Processing” and “The Essence of Innocence: Consequences of Dehumanizing Black Children.” In the first study, Professor Harris explained how the researchers showed participants a significantly degraded image, a weapon that is far in the background and in the snow. With each slide, the image appeared slightly clearer and clearer. The participants were exposed to a prime before seeing these slides, either a White face, a Black face, or no face. Those who were given the prime of a Black face could pick out the weapon much more rapidly than those primed with a White face. The researchers characterized their overall results by positing that the prime as a visual tuning device, tuning the brain and eyesight of the participants. In the second study, researchers found that law enforcement officers often overestimate the size, muscle, and threat level of Black children. Using the police report of Tamir Rice—a 12-year-old shot and killed by police in Chicago with a toy gun—it stated that he appeared to be over 18 years old and 185 pounds.
Next, Professor Harris discussed the effect of fear from the perspective of Black Americans and police officers. Black Americans hear stories told by their grandparents, parents, and siblings of their negative encounters with police, which reinforce this intergenerational fear. Black Americans believe this could be a mortal moment for them or their children when encountering the police. On the other side of the encounter, police also experience fear. According to Harris, their fear found stems from training. Police training turns police officers into warriors because they are taught to believe that there is a “war” out there, that police officers are at risk of being killed in every encounter with every civilian. Often, images of murdered police officers are shown at police academies to further the notion that this is the world we live in. Professor Harris claims this warrior ethos is everywhere and pervades police training and culture. He posits that police training is not flawed itself, but too often resembles training for war.
Professor Harris offers three potential remedies to reduce the violence police use with Black Americans. First, departments should shift from warrior to guardian policing. Second, departments should change recruitment and training tactics. Law enforcement should recruit for values, communication, community experience, and diversity, and officers should be trained to accomplish what the community wants. Lastly, the police must work to build community relationships, especially with youth.
The third panelist, Professor Kristin Henning, Professor of Law of the Georgetown University Law Center, presented “Contempt of Cop: Volatile Exchanges Between Black Boys and the Police,” which focused narrowly on the policing of Black boys. To begin her presentation, Professor Henning discussed an example of one of her clients who lives in an apartment complex in northwest D.C. and likes to visit friends and family in the building next door. On one occasion, he walked out of his building, turned around towards the other building, and saw the police, which caused him to “stutter step.” This “stutter step” caused the police to follow him and a chase ensued. When asked why he ran, Henning’s client replied, “because you’re chasing me.” Here, Professor Henning used this example to show that when a child sees the police looking at them, the child can easily become nervous, get scared, and run, only to have the police assert that his running meant he was doing something suspicious. Henning posited that Black youth, especially boys, alter their behavior when they see the police. Stereotype threat is an essential backdrop to the interactions between Black boys and policing. For example, the stereotype threat symptom of reduced cognitive capacity can manifest as gaze aversion, repetitive phrases, or shortened responses. Black boys will overcompensate for this stereotype to the point of exhaustion, becoming impulse, reactive, and experiencing a sense of futility trying to seem less suspicious.
By the time Black boys reach adolescence, most have seen the police interact with someone in their neighborhood. They are inundated with Black people being killed and treated aggressively. Over-policing of Black and Brown children causes trauma and other adverse mental health outcomes, including adolescent identity development. Over-policing informs the young person’s belief about who they are and who they become. Henning concluded by stating that fear and resentment have socialized a generation of Black youth, and more harm than good is being done in over-policing Black and Brown Youth.
The last panelist, Professor Jordan Blair Woods, Professor of Law of the University of Arkansas School of Law presented “An Analysis of Officer Involved Shootings Through the Lens of ‘Masculinities’ Theory in Criminology.” Professor Woods’s presentation brought masculinity scholarship from the legal and criminology field in dialogue with one another. To begin his presentation, Woods asked: “Are there lessons that policing and legal scholars (as well as advocates) can take from how criminologists have used masculinity discourses over time to explain crime and its context in order to make better sense of systemic police violence, and officer-involved shootings of men (and unarmed Black men) in particular?”
Woods began answering this question by sharing why criminology is a useful lens through which to consider masculinity and officer-involved shootings. For over a century, criminology has been concerned with its own “sex question” and “masculinity crisis,” which acknowledges that crime— especially violent crime—is predominantly committed by men. Shifting the focus to officer-involved shootings, we see that officer-involved shootings are state violence that is predominantly—although by no means exclusively—committed by male officers against male civilian victims.
Professor Woods expounded on how criminologists fall into three different schools depending on their use and understanding of masculinity concepts in the field. Woods’s main argument was that policing and legal scholarship have framed issues involving masculinity with police violence in rich and productive ways consistent with the first two schools of masculinities theory in criminology. However, he asserted that much more work could be done to approach masculinity issues and police violence from the third school involving postmodern masculinity ideas and politics grounded in critical and postmodern feminism and queer theory.
Professor Woods explained the different schools from a criminology perspective, a policing perspective, and how they influence what reforms should look like. The first school focuses on the biogenic or sociogenic aspects of men to explain crime and its context. Here, the focus is on the individual male offender and the use of the scientific method to examine what differences are apparent to explain crime at the individual level. This school defined masculinity as something to be achieved—stemming from anxieties over heterosexuality and not being feminine. For example, through the lens of determinism, officer-involved shootings are framed as acts of certain individuals—the “bad apples” in law enforcement. Determinism also focuses on what individual attributes, such as aggressive tendencies, contribute to officer-involved shootings and police violence more generally. Woods attributes these explanations to how we think about solutions and reforms, like attracting more women to the field or changing police training to control aggressiveness and dominant behavior in policing.
The second school moves away from biological or social determinism. It invokes the sex/gender distinction to characterize gender as a social construct and explain men’s crimes in terms of concepts like “hegemonic masculinity.” “Hegemonic masculinity” is the idea that various masculinities can be ordered hierarchically in ways that account for the complex interactions with social structures. Here, masculinity can be used to refer to a specific set of “masculine” traits in particular contexts, such as aggressiveness, or to explain the causes of crime. Legal scholars have conceptualized police encounters in terms of masculinity contests and threats rooted in hegemonic patterns of masculinity. Hegemonic masculinities help explain why officers get “macho” with civilians to boost their self-esteem and why officers believe they must punish disrespect. Under this approach, calls for police reform include grounding police training in anti-masculinist ideas.
The third school reframes the sex question in criminology by articulating the limits of the sex/gender distinction and conceptualizations of masculinity that rest on that distinction. It embraces postmodern feminist ideas to advance different cultural, social, and historical understandings of the relationship between the body, materiality, sexual difference, and sex/gender. Those in the third school push against the idea that a person’s body is passive and neutral regarding the formation of “gender consciousness.” Criminologists turn to the masculinity of the mind of the offender and ignore the idea that certain crimes are predominated by persons with sexed bodies of men. Ultimately, this school critiques the sex/gender distinction hegemonic masculinity relies on and dismisses the idea that patriarchy is a cultural construct. Rather than changing the behavior of the passive subject, the focus is instead on changing how and why we attach certain significance to those bodies. Professor Woods argues that we must bring bodies back to the center of police violence. That includes the social and cultural scripts we assign to different bodies and how that shapes the subjectivities of different key players during encounters between officer and civilian. Through this vantage point, police violence plays a role in sexualizing, racializing, and criminalizing the bodies of both its perpetrators and its targets at particular cultural and historical moments. Rather than regender the police, Woods urges reformers to establish a more fundamental understanding of how police encounters come to be and what we want those encounters to do.
This panel review was authored by Miranda Hernandez.