Responsible citizenship

We, the people, must engage in narrowing division

The criminal justice classes I teach at the University at Albany examine laws that work the balance of safeguarding individual liberties while simultaneously giving government officials, including the police, the authority to enforce rules needed to maintain social order. The important principles are found in the Constitution and statutes, and in the judicial decisions that interpret them.

The lessons conveyed in the classroom and related readings do not ring true with many of my students, who report glaring inconsistencies with what they have learned through life experience. The legal principles are much cleaner, much easier to state as abstract propositions, and disturbingly are often quite different from what they identify as governing the day-to-day encounters between the police, themselves, and the people they know. There are gaps between the law as written and its application in practice.

The law authorizes the police to use “reasonable” force while making arrests. Reasonableness is “not capable of precise definition or mechanical application,” according to the Supreme Court, but must be determined under the totality of the circumstances, including “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by f light.”

There are gaps between how we understand confrontations between police and civilians as captured in video recordings and what is experienced in the heat of their encounter. The use of force in making an arrest, says the Supreme Court, “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Allowances must be made because “police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving.”

Those guidelines help determine civil liability when the police are accused of using excessive force to make an arrest. There are gaps between criminal responsibility and civil liability. For example, Minneapolis police officer Derek Chauvin has been charged with second- and third-degree murder of George Floyd. The latter crime requires proof that he committed “an act eminently dangerous . . . and evincing a depraved mind without regard to human life.” Guilt must be established beyond a reasonable doubt, a far more demanding test than the civil standard of proof by a preponderance of the evidence.

The Supreme Court has admonished that proper application of the rules involving police use of excessive force “requires careful attention to the facts and circumstances of each particular case.” There are gaps between facts and symbols, between what transpires in individual cases and the more transcendent, general principles. We must be mindful of these differences.

It is wrong, dead wrong, for the police or anyone else to rely on prejudicial stereotyping that equates blackness and criminality. Such reasoning relies on a crude species of dehumanization enabled by creating an “other” without regard to individuality or individual dignity. People are entitled to be judged and treated as individuals. The facts matter.

It is similarly wrong to rely on overgeneralizations that presume that the police abuse their authority and behave so as to undermine the rights and freedoms they are sworn to uphold. Such reasoning relies on a crude species of dehumanization enabled by creating an “other” without regard to the many police officers who honorably serve and protect citizens, their freedoms, and the social order. Beneath their uniforms, police officers are people, who are entitled to be judged and treated as individuals. The facts matter.

How do we help close the gaps in behavior, understanding and trust that separate abstract principle and actual practice? Leadership matters. The current, abject failure of leadership at the national level is dispiriting. This need not dampen creative leadership efforts that occur in states, cities, and localities.

But leaders can only do so much. Individual members of the community and police officers alike must commit to taking responsibility and being personally involved. We, the people, must work together to narrow the divisive gaps that persist in our ability to confront the difficult challenge of reconciling individual freedoms and societal security, of promoting ordered liberty in principle and practice.

I will return to my classroom with the hope that exploring and discussing overarching principles of law with interested students will contribute to their education and my own, and that through this process we all will be better positioned to engage in responsible citizenship and promote the common good.

Leadership matters. The current, abject failure of leadership at the national level is dispiriting. This need not dampen creative leadership efforts that occur in states, cities, and localities.

James R. Acker is a distinguished teaching professor in the School of Criminal Justice at the University at Albany.