Derek Ridgley, Nederland. The number of police/civilian encounters that incorporate violent force dwarfs the number of police shootings. The trick to curbing police brutality lies in establishing a consensus about what types of force are excessive or unwarranted. Can we create national standards for excessive non-lethal force? In some areas bright lines can be drawn. In other areas it will be difficult to eliminate subjectivity.

Let’s start by considering the chokehold used by the NYPD to subdue Eric Garner in 2014, and the neck kneeling used on a handcuffed George Floyd in 2020. Both incidents killed the suspect. Police officers are not medical personnel, and have no expertise regarding the physiological impact of these techniques. Suffocation should not be equated with restraint; that’s what cuffs and squad cars are for. A bright line can be drawn here. We should ban the use of all restraint techniques that interfere with breathing, and officially label them a form of excessive force.

What about proportionality? Should police force be calibrated to the offence committed? George Floyd was detained for allegedly attempting to pay a convenience store with a fraudulent $20 bill. Despite the best efforts of Derek Chauvin’s legal defense team, it seems absurd to suggest that the type of force used against Mr. Floyd is justified to combat counterfeiting. Critics see ‘stop-and-frisk,’ ‘zero tolerance’ policing, and repurposing military equipment from Iraq and Afghanistan as contributors to a violence-prone policing culture. Defunding mental health programs is also certainly a factor. There are no obvious bright lines to promote proportionality in the use of force, but reforms aimed at diverting social service (i.e. mental health) emergencies away from police to other agencies offer a compelling alternative.

Next, we need to consider the most common source of police violence: the traffic stop. There are no consistent standards regarding police conduct during traffic stops, even though the 4th Amendment guarantees that drivers should be uniformly free from unreasonable search and seizure. There is often a major disconnect between the seemingly unlimited authority that some police officers believe they have when making a stop, and the civil rights guaranteed to all by the Constitution.

The recent experience of Second Lt. Caron Nazario is an example of this disconnect. Police in Windsor, VA, failed to respond when Nazario repeatedly asked why he was being pulled over. Despite his non-threatening posture (hands out the car window), and his status as an actively serving member of the military (in uniform during the stop) officers interpreted his question as resisting arrest. They pepper sprayed Nazario, threw him to the ground and cuffed him. Police should be required to immediately tell motorists the reason for every traffic stop. Period.

The Sandra Bland incident in 2015 involved similar circumstances. Bland was pulled over for failure to signal when changing lanes. The scenario escalated because Bland also questioned the basis for the traffic stop, and refused to stop video taping the encounter. In both examples it is clear the police viewed ANY challenge to their commands as resisting arrest, even when those challenges were rooted in the civil rights guaranteed by the Constitution. 

Reform advocates claim certain police practices inherently violate civil rights. The most pervasive and controversial example is ‘pretextual stops’. A pretextual stop occurs when an officer detains a citizen for a minor infraction (i.e. the pretext of a traffic offense) in order to ‘fish’ for evidence of another crime (e.g. drug possession). In 1996 the Supreme Court upheld the constitutionality of this technique in Whren vs. United States. 

The Whren decision legitimized the use of arguably trivial infractions to stop a driver - dirty license plate, broken tail light, changing lanes without signaling, etc. Making decisions about whom to pull over based on age, race, or appearance is unconstitutional, but the legalization of pretextual stops makes it almost impossible to prove the choice of a specific individual was discriminatory. Pretextual techniques were used when police in Brooklyn Center, MN recently stopped Daunte Wright for an expired registration and an air freshener. Minnesota has a law that bans “objects suspended between the driver and the windshield,” presumably to facilitate pretextual stops by police. Five other states (CA, PA, AZ, IL, TX) have similar laws. Pretextual stops are ground zero in the battle over law enforcement reform, but the practice is unlikely to go away without Congressional action. 

For the record, the following civil rights are guaranteed to every American during a traffic stop. You can record information that identifies the police officer. You have the right to film or record the incident. You can decline to answer police questions. Unless police have a warrant or probable cause (such as visible contraband) you do not have to consent to a search. And your detention must be reasonable in length.

(Originally published in the April 29, 2021, edition of The Mountain-Ear.)