How depolicing happens

If you raise the cost of police work, you will inevitably get less of it

Graham’s Note: Since this piece is taking off, I encourage first-time visitors to check out some of my other work while you’re here. I’ve written about qualified immunity, police “militarization”, and how police use their authority to solve problems. The Graham Factor is completely free and I try to write a new article every week. Join the mailing list!

I’ve previously talked about the rise in murder and its very real consequences. But in the midst of the pandemic, one thing about the surge in murder is often overlooked: It’s not new. The U.S. murder rate was declining for decades until 2014, but in the years since that trend has rapidly reversed. As of today, murder is up 45% since 2014. America is now back to 1990s levels of homicide, and 2021 shows no sign of letting up.

Source: New York Times

Many people seem baffled about why this has been happening, but if you know any cops, you know it is not a coincidence that murder started spiking when it did. In 2015, as the rise in violence first became evident, then-FBI Director Jim Comey described what he was hearing from police:

In today’s YouTube world, are officers reluctant to get out of their cars and do the work that controls violent crime? Are officers answering 911 calls but avoiding the informal contact that keeps bad guys from standing around, especially with guns?

I spoke to officers privately in one big city precinct who described being surrounded by young people with mobile phone cameras held high, taunting them the moment they get out of their cars. They told me, “We feel like we’re under siege and we don’t feel much like getting out of our cars.”

I’ve been told about a senior police leader who urged his force to remember that their political leadership has no tolerance for a viral video.

So the suggestion, the question that has been asked of me, is whether these kinds of things are changing police behavior all over the country.

And the answer is, I don’t know. I don’t know whether this explains it entirely, but I do have a strong sense that some part of the explanation is a chill wind blowing through American law enforcement over the last year.

At the time, Comey’s concerns were dismissed by President Obama and the White House, who accused him of “cherry-picking” anecdotes. But whatever his other failings, the last five years have proven that Comey was correct. Proactive policing is on the decline, and murder is spiking as a result.

What is de-policing?

Some people have complained that a decline in proactive policing amounts to a police “strike” or “defiance” of the civilian chain of command. The former mayor of Seattle, Mike McGinn, accused police in that city of doing as much:

“The real issue,” McGinn told me, “is what actions will mayors take to reassert control over the police department? Can a mayor admit they don’t have control and take more firm action to gain control?

Others suggest that police are just “slacking off” because they feel “unappreciated.” Robert VerBruggen in the National Review says:

[Police] departments should explore ways of combating this pattern, including disciplining cops who refuse to do their jobs. Yes, it’s human nature to slack off when you feel targeted and unappreciated. No, that’s not a good reason to let criminals run wild killing people.

This kind of commentary fundamentally misunderstands how and why de-policing happens. Actual police strikes are vanishingly rare in the modern era. And nobody goes into police work because they want to be loved.

Understanding the decline in proactive policing requires first understanding how police operate. Patrol officers respond to criminal activity in one of two ways:

1. Police receive a 911 call about a crime that has already occurred or is in progress. For the sake of convenience, this can be called “reactive” policing.

2. Police patrol and happen upon a crime in progress, see a suspicious person and stop them, or see a traffic violation and conduct a traffic stop.

When I talk about a decline in “proactive” policing, I’m talking about a decline in this second category. Very few police officers could or would refuse to respond to a 911 call for assistance from a citizen. At a minimum, a sergeant will order someone to go to the call. But proactive policing is different—it is entirely discretionary.

Officers basically never receive a direct order from a supervisor (much less a mayor) to proactively stop and detain someone in the way they are ordered to respond to 911 calls. If I’m driving down the street in my patrol car, and see a car with a broken taillight, I can decide to pull it over - or I can decide not to. There is no rule, policy, or law requiring me to make that stop. Nor could such a policy ever be enforced. How would anybody know whether I saw a traffic violation and ignored it, or just didn’t happen to see one today?

¹

Police are like anybody else - they respond to incentives. They assess risks and costs against benefits when making discretionary decisions, and if the likely costs of doing something outweigh the benefit, they decide not to do it. So when you increase the risks and costs of doing proactive police work, police do less proactive work. One cop I worked with explained it this way: “Before you do anything,” he said, “Ask yourself—is the juice worth the squeeze?”

Reform doesn’t have to increase the cost of proactive policing. For example, one study found that as police work more overtime, they have higher rates of complaints, use of force, and vehicle collisions. The reason for this is obvious: tired police make worse decisions. Hiring more police and limiting overtime would probably reduce these problems without reducing proactive policing. Another win-win reform: As of 2017, almost half of police officers had just four hours or less of annual “shoot/no-shoot” firearms training. Making police better at distinguishing deadly from non-deadly threats reduces unjustified use of force without increasing the costs of proactive policing.

But many of the most popular police reforms do increase the costs of proactive policing - and some of them do so deliberately. Generally, police “reform” increases the costs of proactive police work in three ways:

• Reducing police capacity

• Increasing criminal and civil liability for officers

• Directly restricting proactive police work

Reducing police capacity

Every police department only has so many officers, and those officers can only do so many things. When I was a police officer, one major factor in making a discretionary stop or arrest was my determination of how busy we were. Some nights we just went from priority one 911 call to priority one 911 call, so there was no time for proactive policing of any sort. (Any cop knows these days feel like hell.) Other times, I was so bogged down in paperwork that I didn’t leave the precinct for hours. Doing proactive police work is impossible when you just don’t have time for it.

Police reformers absolutely love to make cops write reports. Even conservatives like James Gagliano believe that police need to collect more data. So my police department did not allow me to give “verbal warnings” for traffic stops - instead, I was forced to complete a report for each one. This is standard fare for DOJ consent decrees — Baltimore’s consent decree requires that police “ensure that there is consistent documentation of all investigatory stops or detentions.” Baltimore Police are also required to write a separate use of force report when they use “hand control or escort techniques” that cause “temporary pain.” Every officer who witnesses such a use of “force” must submit a separate witness statement. So if you grab a guy by the arm, and he says “ow” — you and everybody else on the call are now writing an extra report.

Collecting data is fine in theory. But imagine: your squad has six officers. You and another officer make a Terry stop. You find the suspect has a warrant, make an arrest and use a very low level of force to do so. Now, you and your partner are off the street for hours while you complete four different reports. You’ll need a Terry stop report, arrest report, jail booking form, and a use of force report. If you’re busy with these reports and there’s a lot of 911 calls coming in, your colleagues will be doing a lot more work to cover your beat. And the department is tracking 911 response times, so your sergeant will be angry if calls aren’t getting handled. So maybe instead of doing all that, you and your partner decide not to make Terry stops today. You need to be available to cover your patrol sector.

The negative impact of paperwork could be mitigated if more police were being hired, but of course exactly the opposite is happening. In Seattle, more than 200 police officers have resigned or retired as the City Council committed to cutting the department’s budget by 50%. This is the equivalent of 15% of the police force departing in one year. The situation in Seattle is so dire that the police department now spends two-thirds of the year on “priority call status” - meaning that many calls for low-level issues like theft simply receive no police response. The homicide rate is up 50%.

Minneapolis has seen a similar trend, with roughly 200 police officers (20% of the police force) attempting to leave the department. This is an entirely rational move considering the City Council has announced it plans to fire everyone. Unsurprisingly, shootings exploded in the wake of the Floyd riots, and never returned to normal:

Similar trends can be seen in New York City, Chicago, and Oakland where city governments have cut police budgets and/or frozen hiring.

When you reduce the capacity of your police force by laying off cops while simultaneously increasing the administrative burden of routine policing, proactive policing just doesn’t happen. It’s not a matter of feeling “demoralized” or not “feeling respected.” There’s just nobody available to do the work.

Increasing liability

Police take into account the personal risk they face when initiating a traffic or pedestrian stop. Making stops always carries certain safety risks, which cops know, accept, and try to mitigate. But many current police reform efforts also seek to increase the level of personal legal risk that officers face. When you increase an officer’s risk of being disciplined, sued, or criminally prosecuted for proactive police work—for example, by eliminating qualified immunity—officers naturally do less of it.

Some might say this is a good thing. After all, we don’t want police making unconstitutional stops. But how does one determine whether an officer’s actions are unconstitutional? In theory, they look at whether an officer’s action—like a detention or use of force—was “objectively reasonable” based on the circumstances known to the officer at the time. As I have written previously, this test is subjective and fact-dependent. And police are not lawyers. You might pull over a car for a broken taillight and then have a court subsequently decide that state law only requires one taillight.

Theoretically, when evaluating the reasonableness of an officer’s actions, there is supposed to be some level of deference. The Supreme Court says the reasonableness of an officer’s use of force “must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.”

But in reality, the decision about whether an officer acted “reasonably” is never left to police officers. That determination is made by district attorneys, judges, juries, and civilian review boards. Even when departmental discipline is left up to police chiefs, the chief answers to civilian city councilors and mayors. When the civilians judging the reasonableness of an officer’s actions are hostile to police, cops pay attention.

I’ll give one example: Chesa Boudin is a member of the “far-left aristocracy.” The son of two Weather Underground terrorists serving life sentences for killing cops, Boudin has suggested his parents did nothing wrong. He also cheered Venezuelan dictator Huge Chavez for abolishing term limits back in 2009. And now, he’s been elected as the District Attorney of San Francisco.

The attack on Officer Flores. (Full video)

Last year, Boudin indicted SFPD Officer Christopher Flores over the shooting of Jamacia Hampton. Hampton, a burglary suspect, attacked Officer Flores with a glass Vodka bottle and fractured his skull. As near as I can tell, there are no police officers who find this shooting unreasonable. SFPD’s own Chief of Police called the indictment of Officer Flores “surprising and troubling.” The police union was less circumspect: “Mr. Boudin is communicating to law enforcement officers today that they must choose between protecting their lives or protecting their freedom, but they cannot do both.”

Knowing that Chesa Boudin will decide when an officer gets criminally prosecuted, I have no doubt that every police officer in San Francisco now thinks twice before they try to detain someone—no matter how justified they might be in doing so. This is not a “strike” and it’s not “feeling unappreciated.” You can’t do proactive police work when any decision to use force—no matter how reasonable—might land you in jail. Making a burglary arrest isn’t worth your life or your freedom.

Direct restrictions

The final and most obvious way police reform reduces proactive policing is by directly restricting it. This usually works by either directly prohibiting police from doing proactive policing, or else by deliberately eliminating units that engage exclusively in proactive work. Many police departments have units doing exclusively proactive work, but “reformers” have often demanded they be eliminated:

• Portland Police were forced to disband their Gun Violence Reduction Team last year. Before its dissolution, the unit made around 1,300 proactive traffic stops and roughly 100 arrests per year. Portland is now on track for a record-setting number of homicides.

• In June 2020, the NYPD eliminated precinct Anti-Crime Units and disbanded them - reassigning 600 officers to other positions in the department. That year shootings rose 95% in New York City.

Other times, policymakers are even more explicit. Berkeley ordered officers to “deprioritize” traffic stops that weren’t being made for road safety reasons—essentially taking “pretext stops” off the table as an investigatory tool. In Seattle, the Chief of Police suggested that the department would “reconsider the role of proactive enforcement” in policing. In New York, the Attorney General suggested that the NYPD should just stop doing traffic enforcement altogether. In Baltimore, the police commissioner has ordered officers to release offenders who are arrested for trespassing, public defecation, and drug possession, and distributing narcotics.

Police won’t be proactive when policymakers are explicitly telling them not to do proactive police work. If you say “don’t do traffic stops” then cops just won’t do them. One can hardly claim that police are “refusing to do their jobs” in such cases. They’ve just received the intended message: Don’t do proactive police work.

The trade-off problem

Some people genuinely believe that proactive policing is worthless when it comes to preventing crime. If that’s you, all I can say is there’s a lot of evidence showing that you are wrong. The National Institute of Justice rates both order-maintenance policing and “hot spots” policing as “effective.” It even gives them a cool green checkmark!

The unfortunate reality is that liberty and security are, to a large degree, a trade-off. And in a country with a very high homicide rate, handcuffing the police means that lives lost to violent crime will quickly outpace any lives saved from cutting back on policing. A dramatic example of trade-offs at play can be seen in a forthcoming study of Black Lives Matter protests. It found that cities with large protests between 2014 and 2019 had roughly 300 fewer police killings than other cities. But:

Campbell’s research also indicates that these protests correlate with a 10 percent increase in murders in the areas that saw BLM protests. That means from 2014 to 2019, there were somewhere between 1,000 and 6,000 more homicides than would have been expected if places with protests were on the same trend as places that did not have protests.

The bottom line is that police officers will respond to the incentives you give them. Reform can reduce use of force by helping police get better at using force. Or, like a blunt instrument, it can reduce police use of force by reducing the overall amount of policing that happens. Perhaps some people think that this trade-off is “worth it.” But I think it is getting a lot of innocent people needlessly killed.

Comments Archive (5/23/22)

#1:

Good lord, that Baltimore policy is really something. All the risk and paperwork with none of the arrests (unless they have warrants, I guess). It was really hard for me to believe that that's actually policy.

<Officers who encounter a person who would ordinarily be arrested for these offenses and transported to CBIF will adhere to the following procedures:

1.Temporarily detain the offender for the length of time required to confirm identity, offender may be transported to an investigative unit to further active investigations.

2. Prepare all reporting according to policy (incident reports, supplemental reports, investigatory stop reporting, application for charges), noting that the incident is one in which you are guided by this procedure; and

3. Release the offender.>

#2:

I wonder how to disambiguate 2020/2021’s unique pandemic effects? A bunch of people at home all day, no jobs, not in school, nothing to do, etc. That level of idleness contributes to crime but how much? How to tell it apart from crimes that would have been prevented by a stronger police presence?

I wish there was better, more granular data all around.

Graham’s response:

Charles Fain Lehman pulled national Shotspotter data. There's a small rise in March 2020... but the huge rise starts in June 2020.

Another response:

The test I would use is to compare American crime rates with global ones. The pandemic is worldwide, but the epicenter of the BLM movement was American. If the cause was the pandemic, we should see similar results worldwide, or at least in other countries which responded to the pandemic in similar ways.

I checked this a while back, and while many places are slow at releasing data, it looks like the murder rate has stayed flat in Mexico, Canada, and the UK. This suggests that the increase in murders is not due to the pandemic.

#3:

As one who tends to lean more heavily in favor of rights over safety in the trade-off you've identified, I'd like to see a study looking into the relationship between homicide and agg assault clearance rates and crime rates. I wonder if a city could achieve the same reduction in crime achieved by proactive policing by instead focusing on highly effective and tenacious "reactive" policing, i.e. putting all hands on deck to investigate and clear serious violent crime. What this might look like is detailed brilliantly in the book "Ghettoside."

I also think (but cannot point to a study to support) that proactive policing and homicide clearance rates are at cross-purposes, as proactive policing tends to exacerbate hard feelings between police and likely homicide witnesses and victims of serious crime. By improving the relationship between police and high-crime communities and aggressively and effectively investigating serious violent crime, it would seem that the increase in the certainty of being caught would serve as both a deterrent to would-be criminals and encouragement to would-be witnesses to come forward, knowing that assailants and their accomplices will be more quickly apprehended. While proactive policing does seem to reduce crime, there are a lot of tradeoffs and there could be better alternatives that have not yet been given a good try.

Graham’s Reply:

I am a big fan of Ghettoside myself, it's a great book. But I think it really overlooks the importance of street-level deterrence. A lot of times, little stuff leads to big stuff. If you aren't out there in the street stopping and talking to your local bad guys, you don't know who to go to when there's a larger crime. You don't have anybody to "flip" for info. I knew cops who could ID a whole roster of criminals off of surveillance video because they knew them so well.

Ultimately I recall the homicide being investigated by Det. Skaggs in Ghettoside was cracked in part because a street cop caught a guy with a bag of weed.... and the murder weapon.

I recognize the theoretical argument behind "more investigation, less street stops" and it has some intuitive appeal. But I am not aware of anywhere that this has actually worked. Every city that has pulled back on street stops has seen a crime increase and usually a decrease in the clearance rate. Maybe it's a lack of sustained investment in homicide investigations. But I would like to see this idea work somewhere before we continue pulling back on proactive policing.

#4:

I would push back on the notion that proactive policing == traffic stops. There was a time before MDTs, LPRs, and radar guns. What did police do when they weren't answering calls back then? I think it's worth being reflective on how the profession chose to adopt these narrow workflows based on new technologies.

These workflows in conjuction with the myriad of traffic laws enables cops to follow someone long enough that they will inevitably commit a traffic violation. This unspoken reality transforms traffic stops into a kind of de facto, vehicular "stop and frisk".

I agree that reformers are being short sighted by increasing the administrative burden while constraining the operating norms. However, the profession needs to find new (but probably old school) ways of interacting with the public that doesn't involve initiating interactions based on probable cause of ticky tack bullshit violations.

Graham’s Reply:

Police have been using traffic stops to suppress crime basically since cars were invented, because cars have always been an easy way to commit a crime, conceal contraband, and quickly escape. See Carroll v. United States (1925) - state and federal police searching a moonshiner's automobile during prohibition.

Frankly, I see no principled reason why anybody has a reasonable expectation of privacy in a car they are driving on a public roadway. Driving isn't a right. You're using a government-registered car on government roads with a government-issued license. Most other Western democracies simply require all drivers to submit to license checks and random breath tests whenever police request it. No "reason" is required.

There's nothing wrong with using pretext stops to target people who you otherwise suspect are engaged with crime. If I have a choice between stopping the 25 year old felon with the known history of gun possession (easily determined via a plate check) or the 80 year old grandma who's driving 15 mph over, is it really "better" to stop grandma? Obvioulsy not. Maybe gun dude doesn't have a gun today, but he'll know the cops are watching.

#4.5:

Using banal pretexts to target bad guys undermines the credibility of police work. If policy had executed Duante White's warrant at his home instead of a traffic stop based on the probable cause of the air freshener or whatever, the whole narrative shifts. The narrative for a lot of these killings goes something like "Guy got arrested for some low level thing and gets brutally murdered" when it could be "Cop attempts to detain a guy who beat the shit out of his wife (or whatever the warrant is for - it's usually something much more distasteful than selling cigarettes etc), guy starts fight with cop, and wife beater gets shot". This is the ultimate antidote for the "driving while black" talking point.

Do I have a reasonable expectation of privacy in my home that was built with government issued permits, government backed financing (fannie/freddie), and government provided utilities that run into my home? Would a potential building code violation constitute probable cause for searching my home?

Do the freedom of movement and right to travel doctrines make driving pretty darn close to a constitutional right? Interstate commerce is explicitly enumerated (and very broadly interpreted) so is it unreasonable to think driving would be protected?

Graham’s Reply:

Does it actually undermine the credibility of police work? If police had been serving the warrant at his home (and many warrant suspects don't maintain a fixed address) and Potter made the same screwup, it would be just as unjustified. The problem is the failure to train, not the fact that a traffic stop was used to apprehend a gun violator. And anyway, as I wrote a couple of weeks ago, it's not clear that the "narrative" around policing is actually connected to reality in any meaningful way.

Freedom to travel is not the same as freedom to drive, although many people think it is. You can travel where ever you like on a bus, in a taxi, on a train, etc. (Homes are specifically mentioned in the constitution, cars are not.) Driving is a privilege. If we want to make it right, I guess we can. But the trade-off will be more crime, because cars are used to commit crime all the time and always have been.

1. I suppose one could always return to the old days of police departments requiring ticket and arrest “quotas” but that would be one heck of a “reform.”