Legitimacy:

Whether measures taken are legal and have been proportional

Whether agreed procedures have been respected

June 14, 2020, I am waking up to an updated report from CNN about protesters flooding the streets of Atlanta after Rayshard Brooks, an Afro-American U.S. citizen was being shot dead Friday, June 12, by a white American Police officer. A restaurant was set ablaze, a highway was blocked by protesters. Police deploying tear gas, violent altercations in the video footage.

Whilst it is way too early to judge established facts about the circumstances of the killing of Rayshard Brooks in detail, I note that the officer has been terminated, a second officer was placed on administrative duty, Atlanta’s police chief stepped down and Atlanta’s mayor called for the officer who shot Brooks to be fired.

This morning I also read about the continuation of protests against racism and police violence all over the world, and about the discussions within societies over here in Europe about it, including my country, Germany. We have serious discussions over here on changing our constitution, related to the term “race”.

And I read about the emergence of violent right-wing extremists in London, I see pictures with them attacking police officers, and the police attempting to prevent altercations between right-wing extremist protesters and protesters of the Black-Life-Matters-movement.

For good measure, a friend of mine sending me an outstanding article from the NYT on Police Reform.

That is how I woke up.

I feel tired, upset, most of all I feel deeply saddened for another person dying at the hands of police officers in what would appear to be a serious violation of any application of proportionality of the use of force. I join those who say “Enough is enough, when does this end?”. I am upset about those who maintain these are single isolated cases. I can hear those already who will point towards Rayshard Brooks’ fight against being arrested, who will hold his fleeing from the police against him. It looks like he discharged a taser, which he took away from one officer, whilst fleeing, and I can hear those who will say “See…”.

Let me summarize from what I know from preliminary looking at reported facts: Someone is falling asleep in a car. The car does not move, but it is in the way of other cars wanting to use a parking lot, they have to drive around the car. A police patrol controls the car, the person who slept in the car is subjected to a test whether he is intoxicated. He fails the test. Again, the car is not moving. An altercation between the person and police officers can be seen on video footage, the officers attempting to arrest the person, the person violently refusing. At some point in the struggle, the person takes control over a taser which is part of a police officers’ personal equipment, and manages to run away. Police officers pursue him. He appears to discharge the taser in direction of the pursuing officers. He runs away. He is getting shot and killed.

I had already begun writing on an article on proportionality which I had started with the following sentence, a few days earlier:

“June 11, 2020, CNN reported about Tulsa police releasing video footage of an arrest of two black teenagers being handcuffed for – you hear right – jaywalking. Not bystander videos, footage from the body cams of the police officers engaging the teenagers.“

And now another example, pointing into the same direction: Where is the proportionality of police action, and to which extent does the police themselves contribute to escalating an action which then is justified for the use of disproportionate force? And why is this, in its overwhelming majority, happening to non-white persons? 

It is mind-boggling. In all my experience, it is systemic. The biased selection of persons of color being the subject of police control, it is an extremely well documented pattern. We have a corresponding discussion here in Europe about the question whether the police is biased by preferential selection of members of specific groups when deciding to take action: Minorities, persons of color, persons of Muslim faith, migrants. 

We also need to look at how the police is conducting themselves after deciding to engage in a situation. We name it “discretion in deciding whether to act” and “discretion in choosing the means with which to act“: The former: Does the police apply the same criteria for deciding to take action on equal criteria, notwithstanding, for example, the color of the skin? The latter: Is it more likely that the police will use excessive and disproportionate force, depending on the color of the skin?

Notwithstanding racial bias, the American policing system is very different from the system which I belong to, in terms of inherent readiness to apply force in all kinds of policing situations. I would say that the American system is very different in relation to when, and how, to apply force, from any system in the European Union. From my viewpoint, the entire system is based on an understanding of coercion by force which is entirely disproportionate. This, more often than not insanely disproportionate application of force perhaps is the single most contributing factor to escalation of violence in interactions between the police and citizens, and communities. Taken together with that the overwhelming number of persons subjected to it are black citizens, is justifying to state that American policing contributes to systemic measures of control of Afro-American communities. That is racism.

American policing is based on a culture which prefers flashing signs from police patrol cars such as “Stop – It’s the Law”, allowing officers to just hide behind “the law” instead of explaining why they are interacting with a citizen. A culture of control through a “Law and Order” attitude leaves no space for communication.

Cops are no saints. No public servants are. Being put into a position of power, individuals tend to exercise that power, and more often than not their reflex is to say: “Because I can”. In my police system, decades ago, we undertook deep rooted reform efforts addressing it: Being in a position of power requires, in our understanding, a profound humility, and a desire to use these powers only as a last resort. The opposite to it is trigger-happy-policing. And we make sure management is being held accountable to hold police officers accountable. Which is very challenging: Line supervisers tend to fraternise. Police Unions do. In the U.S., they even carry that attitude in their names: Fraternal Order. Management and leadership tends to avoid discomfort by standing up against a culture of fraternisation. After all, supervisers are human beings who prefer to be liked by their subordinates. Unfortunately,  it does not always work that way.

Twenty years ago I was at the helm of an international police comprised of roughly 4.500 officers from 53 United Nations Member States. In Kosovo, setting up executive policing whilst building the foundations of a new Kosovo Police provided a field laboratory in which all different national policing models and attitudes struggled to find a common denominator. We “were the law”, but which law? We were the police, but which police? We learned everything from scratch. The United States deployed roughly 500 police officers into this UN police, with colleagues from many different nations patrolling the streets, upholding order, investigating crime, making arrests.

And every single arrest carried out by American police officers, notwithstanding the circumstances, whether a murder, or a traffic citation, led to handcuffing.

Even more: Every single action leading to temporary restriction of movement of an individual, like, for identification purposes, or further establishing facts at a police station, was called an arrest. Which led to handcuffing. In this, the American policing attitude stood out compared to practice of literally any other national police contingent in this police organisation which we formed from scratch, with no available blueprint. 

This is where my work on a common denominator on policing started. The way we did it was by beginning to talk about these differences. Talking leads to compromises on all sides. My colleagues and friends from U.S. police departments lowered their threshold of when to engage using force. My German colleagues accepted standards they were not used to in their home country. We all benefited. And we established the groundwork of  an understanding of community-oriented policing which transpired into the new Kosovo Police. In this transformation, my fellow American colleagues were instrumental.