A few things stand out in the wake of the riots, unrest and curfews in
Cincinnati following the April 7 shooting of an unarmed young black man by
a white policeman. The rioting and destruction in the days following the
shooting, of course, cannot be justified, but the anger was real and
perhaps some of it is understandable. The full story on what happened has
yet to come out. But the early indicators regarding police behavior are
not encouraging.
But let's take the minor point first. After a couple of nights of rioting
Cincinnati officials got together and announced a curfew. The curfew
itself, along with visible signs that it would be enforced fairly
rigorously (and perhaps vandalism fatigue), seems to have damped down
various passions. Things were fairly quiet the first night and even
quieter in subsequent nights. After a few nights without major incidents
of vandalism or violence, city officials lifted the curfew.
All in all, that strikes me as a fairly responsible use of a curfew. I
don't think the tendency is confined to Orange County or California,
although it doesn't seem to be a universal impulse. But city officials
from time to time in various places seem to get the urge to institute a
permanent curfew and some have even put in daytime curfews so police can
perform the work formerly done by truant officers and nab kids who aren't
in school when the benevolent state says they should be. Some courts have
overturned daytime curfews -- especially loathed by parents of
homeschoolers, who may not have the same schedules as those in government
schools -- and some have let them stand.
The Cincinnati case should remind us of the most responsible use of a
curfew in a free society. Such measures limiting what citizens can do at
certain hours of the day or night should be limited to emergency
situations and temporary in nature. They are, after all, extraordinary
incursions on personal freedom that should be used only in extraordinary
times, even if common sense tells you that a certain percentage of people
out after midnight are up to no good.
The Supreme Court didn't discuss the question, but a number of the briefs
in the Oakland Cannabis Buyers' Cooperative case argued in March touched
upon the venerable concept of "substantive due process." As commentators
on common law and several U.S. Supreme Court decisions have acknowledged,
in a society based on individual rights, as ours is supposed to be, there
is a presumption in favor of a free citizen being able to do pretty much
what he or she wants so long as it doesn't directly harm someone else.
It is to give legal meaning to this bias in favor of personal freedom that
procedures known as due process -- e.g., you need a warrant or a
well-founded suspicion to invade somebody's house or arrest him -- have
been instituted. The due-process requirements can be viewed as
technicalities, but the substance of what they are designed to protect is
the essential freedom to be left alone unless and until you actually hurt
or directly threaten another (recognizing there are gray areas that can be
sincerely interpreted differently).
A permanent or daytime curfew is a prior restraint on this essential
freedom. A temporary emergency-based curfew in response to a real
disturbance, as in Cincinnati, can be seen as an implicit recognition that
personal freedom should be restrained only if there is a real emergency,
and the restraints should be short-lived.
The bigger lesson from Cincinnati might be -- not all the facts are in so
one should be prepared to revise one's judgment -- that all is not well
with many of our big-city police forces, especially insofar as they
interact with black people and other minorities. Saying this does not
necessarily imply that all cops are racist pigs or all blacks who complain
about the cops are innocent victims of "the man." It may simply be
different perceptions by people who honestly believe they are doing right
and don't see how it looks from a different perspective. But these
different perceptions deserve some serious examination.
I talked to Joseph McNamara, the former police chief of San Jose and
Kansas City who is now a fellow at Stanford's Hoover Institution. He has
been concerned about the corrosive aspects of racial profiling by the
police for some time, especially from the standpoint of how it undermines
good policing.
At the conference he assembled for law enforcement and judicial personnel
on policing and the drug war last Fall, Joe had several panels on racial
profiling -- including presentations from the police chiefs of San Diego
and San Jose, who were impelled by incidents to start keeping statistics
on traffic stops and the like. They were surprised to find how
preponderant were the stops of minorities -- not necessarily because the
cops were racist but because they shared stereotypes -- and have taken steps
to sensitize officers and have seen crime decline and police-community
relations improve.
Joe's first reaction to the Cincinnati riots -- after noting, like the
good cop he will always be at some level that they were stupid,
unjustifiable and should be stopped -- was that they represent an
outpouring of justifiable anger at what he has called "gangster cops." The
phenomenon of unwarranted police shootings, especially of
African-Americans, is not confined to Cincinnati, he said. It affects most
major American cities.
Joe McNamara had recently returned from the national convention of police
chiefs in Chicago at which John Ashcroft spoke. His impression, he told
me, was that -- by and large -- white officers and chiefs don't see what the big
deal about racial profiling is. They know they're not knuckle-dragging
racists and see various activities as valid crime control that is based on
actions, not race. But almost all the black police and chiefs he talked to
said there were real problems with blacks and other minorities. Perfectly
respectable black people get hassled for nothing or next to nothing --
even when departments are "balanced" or predominantly black -- and develop
serious resentment toward the police and toward government authority in
general.
If the Cincinnati riots serve as something of a belated wake-up call to
police agencies before the summer gets really hot, they might do some
good. But Mr. McNamara is not optimistic about the ability to change
police cultures that are, in many instances, deeply rooted.
"I put a good deal of responsibility on prominent big-city mayors like
Richard Riordan of Los Angeles and Rudolph Giuliani of New York," he said.
"When they praise their police forces on the very days when an officer
does something questionable or outrageous, as they have, they reinforce a
culture that views people walking down the street, especially in certain
neighborhoods, as suspects or enemies rather than as citizens to be
protected. If that culture isn't changed we might well see more
disturbances."
At the bottom of the resentment in Cincinnati, as many have noted, is the
perception that the police are more likely to confront or hassle people in
minority neighborhoods than in middle-class white neighborhoods. And at
the root of the phenomenon of racial profiling, Mr. McNamara believes, is
the war on drugs.
"When the metaphor of war is not only encouraged but promoted, police are
more likely to assume a warlike stance," he says. "Add the fact that the
only way to try to enforce drug laws is to penetrate private places, to
use informers and undercover operations, to expand the use of questionable
search-and-seizure methods, and that it is easier to use such tactics in
poorer neighborhoods than in upscale ones, and you have a potentially
explosive situation."
In Cincinnati, according to news reports, 15 African-American men have
been killed by police since 1995, four of them just since last November.
It has been duly noted that at least 10 or 12 involved people who were
armed or involved in active lawbreaking rather than unarmed citizens. But
there have been just enough incidents to suggest a certain tendency to
shoot first and ask questions later when the suspect is black or running
around certain neighborhoods.
The resentment engendered by such shootings is shown in less obvious ways
than riots, says Joe McNamara, but in ways that should get our attention.
"You have fewer crimes reported, fewer people willing to come forward to
talk with the police, and more juries voting for acquittal as a way of
showing their disdain for the police," he said.
Now that some semblance of order has been restored, a hard-nosed and
unrelenting re-evaluation of police culture would be a good idea.
"Tragedies can give a good police chief an opportunity to make changes
that might otherwise be more difficult," Mr. McNamara told me. "But the
political will to change must be there."
Conservatives and decent, law-abiding middle class people who believe in
limited government often unite around police officers when they are
accused of unjustified use of force or unwarranted shootings. This is
understandable -- for most of us the police serve as a barrier against
troubling elements of society and it is important to assess accusations
independently based on the evidence. But we should also be aware that
other decent, law-abiding citizens see things differently, and that some
police officers do abuse their power. When that happens it is important to
recognize it and hold people accountable.
If the problem is more an institutional one than a matter of a few rogue
cops -- that the war on drugs fosters a warlike mentality, an idea that
everybody is a potential suspect, that due process can be skirted
sometimes in the service of more drug arrests -- it deserves even more
attention. A war on users of certain chemical substances is troubling in
and of itself in a society supposedly devoted to protecting certain
inalienable rights. If it also undermines the ability of police forces to
protect and serve innocent citizens in a civil fashion that respects the
presumption of personal freedom, it is even more corrosive than many yet
understand.
Perhaps it won't take more riots to create the political will not only to
address racial profiling but also to ask tough questions about the failed
war on drugs.