Justice for George Floyd: Policing Against Privilege with Noncustodial Arrests and a More Transparent Police Force
August 18, 2020 by Aburiyeba Amaso
by Neil Pladus
The era of physically arresting and incarcerating people for community welfare issues belongs in the past. It is time for the police to embrace a more limited role with added transparency, less physicality, and more restraint.
A white Minneapolis police officer knelt on a Black man’s neck, his face pressed onto the pavement, the officer’s face, stoic. The man, George Floyd, was suspected of using a counterfeit twenty-dollar bill. Restaurant camera footage captured Floyd while he was still standing, already in handcuffs. Cellphone footage captured him while he was on the ground. An onlooker pleaded with the police, “Let him breathe at least man.” Floyd, while sobbing, with his hands handcuffed behind his back, made final pleas for his life: “Please! Please, I can’t breathe . . . Momma, Momma.”
Prior to law school, I was a cop in suburban New Jersey for three years. I was dispatched to respond to an active shooter, heroin overdoses, bar fights, suicidal persons, you name it. It was not always easy. On one occasion, I was dispatched to a domestic violence assault in progress. A man had broken his ex-girlfriend’s wrist. His current girlfriend, incoherently drunk, sought to keep me and my partner from entering the house by physically blocking the doorway and pushing us back. Another officer handcuffed her, albeit too loosely, because soon after she began swinging the cuffs above her head with her hands free. We re-cuffed her, brought her outside, and tried to place her in a police car. Each time we tried, however, she lifted her feet and pressed them against the side of the police car, assuring us that she was not going anywhere without a fight. My sergeant at the time, a man for whom I have the utmost respect, was calm. He knew that her arrest was not worth us having to force her into a police car, and once we had her boyfriend in custody, we released the woman at the scene with a summons to go to court.
My story, however, only addresses part of the issue. The person we let go at the scene was a white woman. My hope and belief is that if she had been a Black man we would have reached the same result. Eric Garner, Freddie Gray, Ahmaud Arbery, and now George Floyd, would likely argue differently, if they could. Police officers, especially in city departments, have proven that they no longer deserve the discretion to choose when a violent apprehension is necessary for low-level offenses. With the President himself endorsing excessive force, we must take away force as an option whenever possible. The time has come to move towards a noncustodial, traffic-ticket-like model for non-indictable (or misdemeanor) offenses and a Release on Recognizance (ROR) on scene approach for minor-offense warrants.
After Eric Garner died by being placed in a chokehold by an NYPD officer, the police union defended the officer’s actions by arguing that because Garner was resisting arrest, the officer was justified in using a chokehold. However, perhaps the issue is not whether the perpetrator of a petty offense resisted, but whether police should be granted the power to effect a custodial arrest for petty offenses like selling loose cigarettes or writing bad checks. For too long, property and quality of life offenses have taken precedence over Black lives. Instead of violently seizing those suspected of petty offenses, police officers should be writing summonses and walking away. Physically arresting people for innocuous violations is an anachronism, reminiscent of the knuckle dragging regime of the 1960s. For violations that do not result in immediate jail time (e.g. petty theft, simple assault, etc.), police officers simply bring arrestees to the police station, fingerprint them, and release them with a court date. Frankly, stuffing people into police cars just to release them thirty minutes later is a nonsensical risk for all involved. Releasing people at the scene with a summons benefits police officers and those arrested by lessening the likelihood of a violent interaction.
While promoting noncustodial arrests seeks to decrease incidents of unnecessary violence, inequality cannot be fully examined without understanding the true heights of privilege. For example, in 2015, the NYPD received nearly 2,500 complaints about officer-biased based policing, but not one of them was deemed credible. Watchdog organizations have done a good job exposing evidence of police officer bias or racism that might have otherwise been glossed over, but to fully analyze whether police officers are mistreating marginalized communities, we must examine how they are treating people of means. To do this, police departments must not only turn over body camera footage of violent interactions, but also footage showing when they exercised discretion to not arrest the privileged, namely, politicians and other police officers. Only then can we decide with full context whether police are acting impartially.
I. PRIVILEGE: HOW THE CURRENT MODEL PROPAGATES WHITE SUPREMACY AND CRIMINALIZES POVERTY
Amy Cooper, the white dogwalker who called the police on a Black birdwatcher for “threatening” her,  is proof that racism in the justice system does not always start with the police. As a police officer, it was tricky to determine when a caller did not have the best intentions when calling 911. It was my duty to respond to the call, whether the caller had racist inclinations or not. Sometimes, it was apparent that the caller believed innocuous behavior “while Black” was worthy of police resources. Other times, it was clear that a poor person stood out in a wealthy neighborhood. If the subject of the call had a warrant for a criminal or traffic offense, they would be arrested despite not doing anything wrong at the time. I remember having to transport one individual to jail for an obstructed view traffic ticket that had become a warrant of over $500 due to arrearages. While New Jersey should serve as a model for bail reform, in many places, people are still being taken into custody for something as innocuous as a minor traffic violation.
As George Floyd’s death makes undeniably obvious, for marginalized persons, being taken into police custody is no less a threat to safety than going to jail. My former supervisor told me the presumed ROR threshold during quarantine has increased to $5,000 (as opposed to $500 when I was a police officer), and RORs are now being filled out at the scene to minimize contact between the officer and the arrestee. While this was thought of as a temporary measure in response to COVID-19, minimizing physical contact going forward should be the new normal.
A. Why Police Sensitivity Training Alone Does Not Solve the Problem
Sensitivity or diversity training is ubiquitous, not just in policework. My first memory of it was when I was in about fifth grade, and two high school students gave us a presentation on diversity. Both students were white. I had a similar training while in the police academy, again with a white instructor. While I know that these sessions were well-intentioned and continue to improve, the Minneapolis Police Department, which itself mandated implicit-bias training but “used force against black people at a rate at least seven times that of white people during the past five years,” makes clear that these trainings alone do not change the systemic racism that extends beyond police departments.
Under the Obama administration, implicit-bias training was thought to be an antidote to the history of violent, race-motivated police interactions, but it was unclear as to what exactly the training would entail. Certainly, the training could not be advocating for color blindness because as Black Lives Matter organizer Lex Scott noted, “[As] a black woman . . . if you’re telling me you don’t see color, you’re telling me you don’t see the injustices that I’ve faced, the struggles that I have . . . and you definitely can’t celebrate my culture.” One study identified that police are more likely to fire, and to more quickly fire, upon an armed Black subject than a white one. This study reinforces the mountain of real-world evidence where citizens of color are treated more cruelly and with more violence by the police. But now that we have pinpointed implicit racism, what do we do next? Diversity training has assuredly “taught [people] to respond correctly to a questionnaire about bias, [but] they soon forget the right answers.”
Under the 4.5-million dollar New York Police Department implicit-bias training, police officers are taught to ask themselves questions like, “Would I be requesting consent to search, but for the fact that this person is black?” However, for implicit-bias training to really be effective, I would argue that the better question is, “Would I be doing this if I knew this person were a person of privilege?” If that were the question, police officers would be forced to use the utmost restraint, the same restraint and respect with which they treat politicians and other persons of means.
B. Police Body Camera Footage Must Track Privilege as Well as Misconduct
Police officers frequently deal with those like Amy Cooper who feel that the police serve only them, and some like former Port Authority Commissioner Caren Turner, who feel like they are above the justice system itself. Two Tenafly Police Officers, after stopping a vehicle in which Commissioner Turner’s daughter was a passenger, were commended for their resolve after Turner arrived on scene and berated them. Turner showed the officers her credentials and introduced herself as “a friend of the mayor.” She made her status in the community clear, telling the officers, “The police have all been in my home, and in my second home, and in my third home in Tenafly.” Turner continued to ask the officers why the driver had been stopped, despite being told countless times that she was not involved and thus not owed anything. She assured the officers that she would contact the Tenafly Police Commissioner before telling them, “You may shut the fuck up.” All the while, Turner put her hands in the officers’ faces, she was belligerent and threatening, and instead of the officers becoming more aggressive, one said, “Take a step back from me, please. I can’t move back any farther, I keep moving back farther, and you keep moving closer to me.” After watching the dashcam footage, it was clear that Turner believed that because she is a person of means with some political swing, traffic offenses did not apply to her, or her daughter, or her daughter’s friends.
This is the restraint that should be afforded to all citizens, not just the ones with exhibitable credentials. After Caren Turner’s embarrassing attempt at abusing her power to get friends out of traffic tickets, New Jersey passed a bill so that politicians like Miss Turner can no longer exhibit “police-style” badges. The fact that politicians were ever given these badges is evidence that police officers were supposed to treat them as if they were above the law. It is not as if Commissioner Turner could have raised her badge to help during a crime in progress; she could have only used it for her own benefit. I argue that this law does not go far enough. Not only should our politicians be barred from exhibiting “get-out-of-jail-free cards,” but each time they interact with the police, except for rare circumstances (medical calls, duress, etc.), the footage should be open to the public.
Police union cards, law enforcement license plates, and police-style badges are all seeds of privilege that have toed the line of police misconduct for too long. The justice system can no longer allow castes among its citizens. If police officers are truly meant to protect and serve, then they can no longer do so unevenly. Until all Americans, from Amy Cooper to Derek Chauvin, no longer succumb to their inner biases, we will have civil rights violations unequally perpetrated by our police onto people of color. If the justice system wants to privilege some, it must privilege all. It is hard to imagine an officer kneeling on Caren Turner’s neck for issuing a bad check, but it is all too easy to imagine it when it involves someone who looks like George Floyd. For this reason, each time a politician or police officer is stopped by the police for suspicion of involvement in a criminal or traffic offense, it should be available to the public. To properly analyze implicit bias in the justice system, we must see the “good” with the bad. Only by fully understanding the height of privilege can we achieve a more equal justice system.
One egregious example of police privilege was in Aurora, Colorado, where officers observed a drunken fellow officer asleep in his car while on duty, passed out in the middle of an intersection. The officer’s blood alcohol content was more than five times the legal limit, but the officer was not ticketed nor was he arrested. It is impossible for the public to truly trust police officers when they do not have the integrity to enforce the law equally. It is time that we call this police inaction what it really is – police misconduct.
The Bureau of Justice Assistance currently recommends that before releasing body-worn camera (BWC) footage, “agencies [should] balance the legitimate interest of openness with the need to protect privacy rights.” However, tracking the law of defamation, the public has a legitimate interest in the qualifications of public figures like politicians and police officers, and thus politicians and police officers owe full disclosure to the public when investigated for a crime or offense. Therefore, the proper balance leans in favor of releasing BWC footage.
Transparency and noncustodial arrests are the first steps necessary to address the shameful history of systemic racism in our justice system. De-escalation and implicit bias training alone have not proven effective, thus requiring other changes in the way police departments are currently utilized. These changes should include limiting police involvement to those situations in which police presence is required and further restricting police discretion to use force. In 2001, Portugal decriminalized drugs and turned to a more social-work centric model, and this shift “led to an increase in people accessing treatment, and a decline in overdose deaths, HIV infections, and incarceration for drug-related offenses.” The era of physically arresting and incarcerating people for community welfare issues belongs in the past. It is time for the police to embrace a more limited role with added transparency, less physicality, and more restraint. Physical apprehensions for twenty-dollar violations delegitimize what can be an honorable profession. Justice for George Floyd means at least that minor offenses can never again be the excuse for an execution.
 Ryan J. Reilly, Donald Trump Endorses Police Brutality in Speech to Cops, Huffington Post (July 28, 2017), https://www.huffpost.com/entry/trump-police-brutality_n_597b840fe4b02a8434b6575a (quoting Donald Trump, “[W]hen you see these thugs being thrown in the paddy wagon, you just see them thrown in, rough, and I said, ‘Please don’t be too nice.’”).
 Melanie Eversley & Mike James, No Charges in NYC Chokehold Death; Federal Inquiry Launched, USA Today (Dec. 3, 2014), https://www.usatoday.com/story/news/nation/2014/12/03/chokehold-grand-jury/19804577/.
 Ali Watkins, 2,495 Reports of Police Bias. Not One Was Deemed Valid by the N.Y.P.D., NY Times (June 26, 2019), https://www.nytimes.com/2019/06/26/nyregion/nypd-bias.html.
 See The Plain View Project, https://www.plainviewproject.org/ (The Plain View Project’s homepage describes themselves as “a database of public Facebook comments made by current and former police officers.” The Project collects the posts because “fairness, equal treatment, and integrity are essential to the legitimacy of policing, [therefore] these posts and comments should be part of the national dialogue about police.”).
 Brakkton Booker, White Woman Who Called Police on Black Bird-Watcher in Central Park Has Been Fired, NPR (May 26, 2020), https://www.npr.org/2020/05/26/862230724/white-woman-who-called-police-on-black-bird-watcher-in-central-park-placed-on-le.
 Diana Dabruzzo, New Jersey Set Out to Reform Its Cash Bail System. Now, the Results Are in., Arnold Ventures (Nov. 14, 2019), https://www.arnoldventures.org/stories/new-jersey-set-out-to-reform-its-cash-bail-system-now-the-results-are-in/ (Prior to adopting the Public Safety Assessment (PSA) model, “1,500 people—12 percent of New Jersey’s jail population—were being held behind bars solely because they could not afford bail of $2,500 or less.” After implementing the risk-based rather than cash-based model, “4.6 percent of individuals in jail were held on bail of $2,500 or less . . . [a]nd the average time a person spent in jail pretrial dropped . . . 40 percent.”).
 The ROR threshold is the amount a warrant needs to be for someone to go to jail. For example, when I was a police officer, if you had a warrant for $501, it was presumed that the person would be transported to jail (if they could not post bail). It is now $5,000, so for anyone with a warrant under that amount, it is presumed the person will be released with a new court date.
 We Asked 155 Police Departments About Their Racial Bias Training. Here’s What They Told Us., CBS News (Aug. 7, 2019), https://www.cbsnews.com/news/racial-bias-training-de-escalation-training-policing-in-america/
(Minneapolis has required “[i]mplicit racial bias training since 2015” for “8 hours more than once per year.”).
 Richard A. Oppel Jr. & Lazaro Gamio, Minneapolis Police Use Force Against Black People at 7 Times the Rate of Whites, NY Times (June 3, 2020), https://www.nytimes.com/interactive/2020/06/03/us/minneapolis-police-use-of-force.html.
 Tom James, Can Cops Unlearn Their Unconscious Biases?, The Atlantic (Dec. 23, 2017), https://www.theatlantic.com/politics/archive/2017/12/implicit-bias-training-salt-lake/548996/.
 Joshua Correll et al., The Police Officer’s Dilemma: Using Ethnicity to Disambiguate Threatening Individuals, 83 J. of Personality and Soc. Psychol. 1314, 1317 (2002).
 Frank Dobbin & Alexandra Kalev, Why Diversity Programs Fail, Har. Bus. Rev. (2016), https://hbr.org/2016/07/why-diversity-programs-fail.
 Al Baker, Confronting Implicit Bias in the New York Police Department, NY Times (July 15, 2018), https://www.nytimes.com/2018/07/15/nyregion/bias-training-police.html.
 Michelle Kim et al., Port Authority Commissioner Rants at Cops: ‘You May Shut the F— Up!’, NBC New York (Apr. 26, 2018), https://www.nbcnewyork.com/news/local/port-authority-commissioner-rants-at-new-jersey-police-officers-im-commissioner-you-may-shut-the-f-up/494534/.
 Amy Kuperinsky, Tenafly Police Chief Praises Cops in Caren Turner Video: They Handled It ‘Perfectly’, NJ.com (Apr. 26, 2018) (updated Jan. 30, 2019), https://www.nj.com/news/2018/04/tenafly_top_cop_talks_about_the_video_that_put_a_p.html.
 Kim, supra note 15.
 Ryan Hutchins, New Jersey Senate Passes Bill Eliminating Police-Style Badges for Officials, Politico (Sept. 27, 2018), https://www.politico.com/states/new-jersey/story/2018/09/27/new-jersey-senate-passes-bill-eliminating-police-style-badges-for-officials-631348.
 Aurora Officer Keeps Job, Not Charged with DUI After Being Found Drunk in Patrol Car While on Duty, Fox31 Denver (Dec. 12, 2019), https://www.youtube.com/watch?v=iuDO1C-eWpo.
 See N.J Rev. Stat. § 2C:30-2 (“A public servant is guilty of official misconduct when, with purpose to obtain a benefit for himself or another or to injure or to deprive another of a benefit . . . . He knowingly refrains from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office.”).
 Bureau of Justice Assistance, Body-Worn Camera Frequently Asked Questions (2015), https://bja.ojp.gov/sites/g/files/xyckuh186/files/media/document/BWC_FAQs.pdf.
 See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 275 (1964) (“The right of free public discussion of the stewardship of public officials was thus, in Madison’s view, a fundamental principle of the American form of Government.”); Rosenblatt v. Baer, 383 U.S. 75, 86 (1966) (The Court defined public officials as “position[s] in government [with] such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general interest in the qualifications and performance of all government employees.”).
 Emma Reynolds, Calls Are Growing to Defund Police in the US. Here Are Some Lessons from Overseas, CNN (June 24, 2020), https://www.cnn.com/2020/06/24/world/defund-police-crime-social-welfare-intl/index.html.