By MATTHEW PATE
By MATTHEW PATE
At the risk of treating readers to an overabundance of commentary about the New York Police Department, the agency finds itself amid another controversy worthy of editorial. In a recent article by Susan Ferriss of the Center for Public Integrity, it is alleged that the NYPD (and many other agencies nationally) are engaged in a campaign of vague terror against school kids.
As Ferris writes, “More than 70 percent of court summonses issued to New York City school students between January and the end of March this year were for disruptive behavior, according to a new analysis released by the American Civil Liberties Union of New York this week.”
Udi Ofer, the advocacy director for the New York ACLU concurs: “The high percentage of disorderly conduct charges — a catchall category that could encompass all kinds of typical misbehavior — indicates that NYPD officers are getting involved in non-criminal disciplinary incidents.”
Groups like the ACLU and Center for Public Integrity contend that officers are intervening too often in matters that could otherwise be resolved without formal legal intervention (i.e. arrest or citations).
Of course they are. Spoiler alert: tending non-criminal or obliquely criminal incidents comprises the bulk of police work. That’s exactly what we have asked them to do. In this paradox, we are confronted with a core issue of policing and the contradictory expectations we have placed on law enforcement. The fundamental issue is due process. Substantive due process, in particular. At the risk of under-explaining a very complicated legal concept, the hinge pin of substantive due process (in this context) rests on the idea that citizens should be able to understand what behavior the law compels/permits. If laws are so vague the boundaries of lawful behavior are unclear then an issue of due process may arise.
To say it another way, nobody should get penalized in a game for which the rules are unclear. Detractors allege this is what is happening in New York and many other places — people are being arrested and ticketed for behavior that may or may not pass as “illegal” in the most narrow sense.
There’s only one tiny problem with their reasoning, quelling obstreperous behavior is what we have asked police to do. The disorderly conduct ordinances in virtually every American community are very broad and necessarily so. Forty years ago, the eminent policing scholar, Egon Bittner, noted that the functional mandate of police extends well beyond things we would understand as crime. He argues that it encompasses any situation in which the use of non-negotiable coercion is required. As he says, the police are charged with resolving situations where “something-that-ought-not-to-be-happening-and-about-which-someone-had-better-do-something-now!”
Such catch-all curbside dramas require a broad net. Yes, these situations are amenable to considerable police discretion, but so are virtually all other matters in which the cops are asked to become involved.
The general public has a distorted image of police work. This starts with the caricatured view of arrest sold to us by Hollywood. Ask any group of people how many arrests the average police officer makes in a given day. One? Five? Ten? The fact is that the average cop makes one custodial arrest about every 17 days. As many policing experts have noted, cops make arrests in far fewer instances than is otherwise technically possible. People are told to move along, be more attentive or stop it much more than they are arrested.
Moreover, children in public schools are already controlled by the dictates of the organizational culture of the academy. There are schedules and a litany of well-communicated rules to be followed. “Kids just being kids” is already factored into the equation. Except in places of poor police management, officers assigned to schools have specialized training focused on work in that environment. In short, everybody knows what’s expected.
Just as with stop and frisk, nobody likes to be interdicted when its their behavior at issue, but we demand the cops to “do something” when someone else starts a ruckus. As queried previously, how shall they proceed?