Freeland's Error - Et Tu Ferguson?

 

This is about cops and legitimacy but let me start by explaining the title and reviewing a little world history. In the 400s AD, Ireland was converted to Catholicism by St. Patrick. There is no documentation that there were any snakes there at the time. In a series of power grabs and wars over the next 1300 years the people in power allied themselves with England in order to guarantee that they would stay in power.

By the early 18th century. 90% of Ireland was owned by English Protestants to whom the Catholic peasants had to pay rent. So, for hundreds of years there has been fighting between the Catholics and Protestants over civil rights, home rule, and religion.

Skip ahead to 1948 when Ireland is granted full independence from Britain except for the 6 Northern counties that remain under British rule. Many of the anti-Catholic laws are still on the books and there is growing resentment among the Catholics and equal resistance to change from the governing Protestant majority. By 1968 the tension between the Catholic minority that wanted to be part of Ireland and the Protestant majority that wanted to remain under English rule was turning neighbor against neighbor and friend against friend. On 5 October, 1968, a planned peaceful civil rights protest march by the Catholics in Derry turned into a riot as the Protestant police force turned on the demonstrators with nightsticks and fists.

The relatively small police force struggled to cope. Violence continued to erupt over the next few months between the two groups and the Northern Ireland Prime Minister finally asked Britain for help. On the 14th of August, 1969, British troops were sent in to restore order under the command of Lieutenant-General Ian Freeland. Freeland expected to be home within a couple months after he put down the “insurgency." House to house searches for weapons and a “shoot on site” curfew were established and Freeland thought he had solved the problem. He was very, very wrong.

At the peak of what became a 38 year operation, the British Army deployed some 21,000 soldiers. During the operation, 1,441 members of the British armed forces died in Operation Banner, including natural causes and suicide. In that same time period the British Army killed 305 people. 156 were civilians. (Northern_Ireland_Civil_Rights_Association#Derry_march)

Meanwhile, on the other side of the world, in 1970 the RAND Corporation, a Washington think tank, published a paper titled Rebellion and Authority (Wolfe, 1970), written by economists Nathan Leites and Charles Wolfe Jr. Their report became the Rosetta stone for governments and police departments in dealing with riots and other civil unrest. The major premise of their report reads: “Fundamental to our analysis is the assumption that the population, as individuals or groups, behaves “rationally”: that it calculates costs and benefits to the extent that they can be related to different courses of action, and makes choices accordingly…. Consequently, influencing popular behavior requires neither sympathy nor mysticism, but rather a better understanding of what costs and benefits the individual or group is concerned with, and how they are calculated.” This premise is Machiavellian in nature and we can see the similarity in Machiavelli’s quote from The Prince “If an injury has to be done to a man it should be so severe that his vengeance need not be feared.” (Machiavelli)

In other words, Wolfe and Leites said that people in power don’t have to care what others think about how they use their power; be ruthless enough and you will end resistance. People will be rational and make choices based on a cost benefit analysis. If the government makes the costs too high the people will acquiesce. They were wrong. Control through fear as a way to quell an insurgency or fight crime has a very short period of efficacy. Fear not only makes people irrational, it makes them committed enemies, drives them underground, and it negates any claim of legitimacy on the part of the enforcers. Freeland did not understand this.

He was a decorated and distinguished military leader who, on the orders of the British Prime Minister was directed to “deal toughly, and be seen to deal toughly, with thugs and gunmen.” Freeland thought they had everything they needed but they made a “….simple mistake. They fell into the trap of believing that because they had resources, weapons, soldiers, and experience that dwarfed those of the insurgent elements that they were trying to contain, it did not matter what the people of Northern Ireland thought of them.” (Gladwell)

Freeland did not understand that when “people in authority want the rest of us to behave, it matters-first and foremost-how they behave.” (Gladwell, 2013) The conflict in Northern Ireland lasted 38 years, because the government had lost legitimacy. Freeland commanded an occupying force and as such he failed to see the need to participate with the parties involved in the violence. He was clearly not neutral, taking the side of the protestant majority in the way he tried to subjugate entire neighborhoods and he failed to show any respect for the Catholics he was trying to control. Freeland commanded his troops as if Rebellion and Authority was his bible and Machiavelli his right hand man, and he lost legitimacy. This was Freeland’s Error.

The deaths of unarmed civilians in Ferguson, Missouri and New York caused major rioting and protests around the country far out of proportion to the events. There is a history in this country of cops killing unarmed civilians and for the most part only a few concerned citizens ever make any noise about it because in the vast majority of cases the cops do only what they truly believe is necessary. Mistakes are made but for the most part cops get it right. Then again, there are many cases where the use of force is clearly questionable and through smart phones and instant video capabilities the public can see at least one version of the event within minutes of its occurrence on YouTube, CNN, FOX, etc.  Nearly everyone in America is an instant news reporter, and typically when it looks bad on video, it is bad.

In cases where I was an expert for plaintiffs where the police killed or abused unarmed citizens there were no marches or demonstrations for the victims. So what is different now? How have we reached this tipping point? I believe the recent public outcry is not just about the deaths of two black men, it is about the loss of police legitimacy. The Justice Department report of the investigation into the practices of the Ferguson Police Department is just another example of what many of our communities of color have been living with for years. In America today the criminal justice system is suffering from “Freeland’s Error” and we are losing legitimacy.

The basis for legitimacy in our system of justice stands on the three legs of participation, neutrality and respect. Take away any one of those three legs and legitimacy collapses like a stool under too much stress. Take away two legs and the process of rebuilding legitimacy becomes even harder. Take away all three legs and we have the makings for a revolt. Participation means that people need to believe that their voice is being heard. Neutrality means that they need to believe that the law is being applied equally to everyone without bias. Respect means that, to the extent possible, police officers need to be respectful in both their language and actions – to everyone. Without legitimacy people will only see injustice. It will matter not that the use of power was lawful.

Participation implies an effort by both parties to communicate honestly and openly and come to a mutual understanding. The community must believe that they have a voice in how and when power is used by those who control it. The free press, the internal affairs complaint process, the civil court system, and the use of civilian review boards are examples of how a community can give voice to their concerns. All of these are in place right now but giving voice only succeeds if someone is listening and participating. Using Minneapolis as an example the StarTribune reported In August, 2013: “Of 439 cases involving Minneapolis police misconduct handled by a new office created last fall, not one so far has resulted in discipline of a police officer.” The article goes on to say : “In addition, the city of Minneapolis made $14 million in payouts for alleged police misconduct between 2006 and 2012, but the Minneapolis Police Department rarely concluded that the officers involved in those cases did anything wrong, according to a Star Tribune analysis.” This is a prime example of non-participation by the police. No one is listening.

Neutrality means the treatment of citizens must be done in an unbiased nature. In other words the same rules apply to everyone, regardless of race, gender, etc. Clearly that is not the case in many cities. The African American Men Project exposed the egregious effects of zero tolerance policing that resulted in 44% of the 18-30 year old African American men in Hennepin County being disadvantaged with arrest records that will drag on them the rest of their lives. In Ferguson the arrest records reported in the Justice Department’s report defy any explanation except racial bias.

Respect is perhaps the most important and sensitive leg of legitimacy. It is about how we treat people and whether that treatment is considered to be fair. The civil courts give us alternatives when police departments don’t want to participate or are biased in their abuse of power, but how do you counter a lack of respect? “Holding all else constant, citizens who receive respectful treatment from authorities are almost twice as likely to comply, and those receiving disrespectful treatment are nearly twice as likely to rebel. If a citizen’s voice is terminated by the police they are more than twice as likely to rebel against the police request for self-control. If the police demonstrate their commitment to making an informed decision by seeking information about the presenting situation, citizens are more than twice as likely to comply with the phase 1 request for self-control.” (McCluskey)

There is a wonderful passage in In Number Our Days by Barbara Myerhoff where she writes about the importance of respect.

“The desire to be counted publicly as honorable is certainly a universal human concern. But some societies lavish more care and time on the matter than others. It would seem that there is often a direct, inverse relationship between people’s actual effective power and their passion for publicly enacting their honor. Oppressed peoples whose lives are largely determined by forces beyond their control are often preoccupied with “face,” and develop subtle gradations of worth and honor in various terms— precise variations in skin color, minor distinctions of dress, and the like. Economic impotence, social inferiority Vis-à- Vis other groups, removal from centers of authority and influence are among the conditions leading to a great concern with honor. Socially disdained groups have to find their own standards, generating internal codes for taking each other’s measure. Only by doing so can they avoid the devastating consequences of judging themselves in the terms used by people who disdain them, in whose system they will always amount to nothing.” (Meyerhoff)

Many officers believe that citizens should not be allowed to record the misconduct that is captured so well by citizens. But right or wrong is not the right question. The real question is - Why does it take citizens with cell phones to report misconduct that should have been stopped by the officers to begin with?

What we are learning about citizen participation is that they will not be denied. When we fail to participate in an open and transparent manner; when we enact policies that support racial bias, and when we fail to show the respect every citizen deserves the communities will communicate with us and the rest of the world in the only way left to them – the media. Freeland’s Error is not just a lesson from history it is a fact of life made public by social media and it cannot last.

Furst, R. (2013, August 28). No Minneapolis cops have been disciplined after 439 complaints. Retrieved from StarTribune: http://www.startribune.com/local/minneapolis/221422101.html

Gladwell, M. (2013). David and Goliath . New York: Little, Brown and Company.

Machiavelli, N. (1532). The Prince.

McCluskey, J. D. (2003). Police requests for compliance: Coercive and procedurally just tactics. New York: LFB Scholarly Publishing .

Meyerhoff, B. G. (1978). Number Our Days. New York: Simon and Schuster.

Northern_Ireland_Civil_Rights_Association#Derry_march. (2015, February 22). Retrieved from Wikipedia: http://en.wikipedia.org/wiki/Northern_Ireland_Civil_Rights_Association#Derry_march

Quinn, M. W. (2011). Walking With the Devil: The Police Code of Silence. Minneapolis: Quinn and Associates Publishing and Consulting.

Tyler, T. R. (2004). Enhancing Police Legitimacy. The Annals of the American Academy of Political and Social Science, 93.

Wolfe, N. L. (1970). Rebellion and Authority. Chicago: Markham Publishing Company.