Commentary: Democratic policing can lead to more accountability

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Police watching protests in Ferguson, Mo., in November 2014.

Barry Friedman

is a law professor at New York University School of Law, director of its Policing Project, and author of "Unwarranted: Policing Without Permission" (Farrar, Straus & Giroux, Feb. 21)

Over the last three years, the country has been roiled by profound expressions of concern about various policing practices. These include militarization of the police (dramatically on display in the events in Ferguson, Mo.); the use of force by police officers, in particular officer-involved shootings of unarmed people of color; and secret surveillance by the police, such as the use of "Stingray" devices that trick cellphones into reporting their location to the government.

Such concerns reach all the way to the top of the federal government. Don't forget that immediately before Ferguson came Edward Snowden's revelations of widespread secret data collection by the National Security Agency and FBI of all Americans.

From Snowden to Ferguson, the solution to these challenges is both simple and profound: democratic accountability. That is what is largely missing from policing today.

To see this, it is useful to distinguish two forms of accountability: front-end and back-end. Throughout most of government, from school boards and zoning boards to federal administrative agencies, we rely heavily on front-end accountability. That means having written rules in place before officials act, which are available to all to see, and - most important - are made with input from the people.

Public rules written with public input. That's just how we do things here in America. Front-end democratic accountability is as familiar to us as the air we breathe.

When people talk about accountability around policing, however, it is all on the back end - after things have gone wrong. They refer to things like lawsuits and criminal prosecutions, to court-appointed monitors, inspectors general, and civilian review boards. Even body cameras, if you think about it, are a form of back-end accountability. All of these are aimed at ferreting out misconduct. What they don't do is involve the public in deciding what policing practices and policies should be in the first place.

When the public is given a voice on the front end about how we are policed, policing changes.

After Ferguson, many state and local governments debated the question of whether their departments should possess and use military equipment like armored vehicles, high-powered assault rifles, and bayonets (yes, bayonets). Those jurisdictions adopted very different answers, as befits our democracy. Some gave back the equipment, some kept it, some required their police departments to seek public approval before getting new equipment. But the point was that policy changed when the public was given an opportunity to express its view.

The same has been true of surveillance. After Snowden's disclosures, Congress tuned in to the public will and debated bulk collection of Americans' phone data for national security purposes. It did not reject such use of data; it simply put in place rules and protections to make sure the government acted consistently with the Constitution, which it had not been.

Stingrays are a chief case in point. For years, the federal government funded state and local police to use these cell-trackers. A condition of the funding was that the police departments could not reveal what they were doing - even to judges in real cases. (When this came out, there were some angry judges.) Eventually the public got wind, and Sens. Patrick Leahy (D., Vt.) and Charles Grassley (R., Iowa) wrote the FBI asking hard questions. As soon as our democratic representatives expressed their views, policy changed. Federal agents started asking for warrants before they used the cell-trackers.

Sometimes secrecy around policing is necessary. We don't want or expect departments to post their active-shooter tactics on the web. But the public unequivocally should have a voice in how force is used on them, on what surveillance tools are deployed, and with what safeguards. The key distinction is between matters of policing policy - which should be publicly debated - and operational and investigative tactics, which need not.

People may argue that policing is democratic, in that police chiefs typically serve at the will of the mayor, who can fire the chief if people are unhappy. But that is an inadequate and indeed terrible substitute for giving the people voice in how they are policed.

Mayors want chiefs to keep down crime; they don't focus on how that happens (and the police would resent it if they did). Then, if police methods become controversial, chiefs - even good chiefs - get fired, but that does little to fix the underlying problem. This sort of accountability is like using a sledgehammer to tighten loose screws in a table lamp.

The quickest route to this sort of democratic accountability around policing is working directly with the police, rather than simply pointing fingers at them. It rests in helping policing agencies understand that they can invite in the public voice safely, without simply feeling ordered about.

In the rest of government, agency officials are not expected to do anything and everything the public demands. We defer to the expertise of these officials so long as it is warranted. But the agencies (and boards and commissions) are expected to listen to the public, change what they can, and explain the choices they make, so those decisions can be evaluated by the public. That's what democratic policing should look like too.

The Fraternal Order of Police, one of the more conservative voices around policing today, favors this sort of front-end accountability. Testifying before President Obama's Task Force on 21st Century Policing, FOP officials condemned as unhelpful cwivilian review boards but praised citizen advisory boards. Why the difference?

The FOP doesn't like back-end accountability - who likes to be second-guessed? - but welcomed mechanisms that brought police and the public together on the front end, collaboratively, to form policing policy. As the FOP recognized, that's how you get legitimacy and public buy-in around policing. Through democratic policing.

Barry Friedman will discuss "Reshaping Policing for the 21st Century" at 6:30 p.m. Tuesday at the National Constitution Center. To register, visit www.constitutioncenter.org/debate or call 215-409-6700.