The Plague of Excessive Force: Working Together to Find a Cure

by Lori Lightfoot, Art Acevedo, Barry Friedman, Ashley Allison and David F. Levi

Summer 2020 | Volume 104 Number 2 | Download PDF Version of Article

In July, the “Coping with Covid” series shifted attention from one pandemic to another: the plague of excessive force by police officers. It is an old and long-standing problem receiving new attention this year in the aftermath of the death of George Floyd under the knee of a Minneapolis police officer. It is a hard moment in our history — and yet amid the pain and scrutiny, the community leaders, activists, and scholars who joined David F. Levi for this episode of “Coping with Covid” see common ground and opportunity for meaningful change.

Panelists included Lori Lightfoot, mayor of Chicago, Art Acevedo, chief of the Houston Police Department, Barry Friedman, Jacob D. Fuchsberg Professor of Law at NYU and the founding director of the NYU Policing Project, and Ashley Allison, executive vice president of campaigns and programs at the Leadership Conference on Civil and Human Rights (click here to see the panelists’ bios).

This transcript has been lightly edited for length and clarity. Find the full video and transcript online at judicialstudies.duke.edu/programs/copingwithcovid.

David F. Levi: Mayor Lightfoot, you’ve been involved with police oversight for many years. You were chair of the Accountability Task Force in Chicago after the 2014 police murder of Laquan McDonald in Chicago. 2014 was also the year in which Michael Brown was killed by a police officer in Ferguson, Missouri, and here we are six years later. Can we put an immediate end to these kinds of police killings so that we aren’t here on another cycle six years from now?

Lori Lightfoot: Look, we’d all like to put an end to any police excessive force, particularly one that involves shooting. They are the most igniting and outrageous use of force, that really angers community members. So, minimizing any police-involved shooting is important.

Fundamentally, it goes back to I think a couple of things. One is, of course, training. But that training isn’t just about how to use deadly force. I think the place where we have missed and we need to recalibrate is the sanctity of life question. Everybody knows this. Just because you can use force doesn’t mean you should use force, and of the two most notorious ones recently, the killing of George Floyd in Minneapolis, this was a compliant individual who was already in handcuffs, was expressing some concerns about getting into the back of a police vehicle, but certainly wasn’t resisting arrest and certainly not one that warranted the kind of force that was used by the officers, in particular but not just exclusively, the knee on the neck. We had three officers who were literally having their full weight on his body, and of course we know that led to his death. More recently, we had a shooting at a Wendy’s drive-in where the individual was running away and grabbed a taser. By definition a taser is a nonlethal form of force, and yet, running away, he was shot twice in the back by a pursuing police officer.

So, what that says to me is that we are missing the boat in training our officers about the sanctity of life and why that has to be paramount in their thinking. Now, in those split-second decisions, officers are going through a long matrix of questions. That’s why they’ve got to be trained. They’ve got to be trained in real-time simulations so these questions and these restraints get actually baked into the muscle memory of officers, so when they are in a split-second situation, they can lean into the practice and the training. I don’t think that we’ve done a good enough job on that anywhere. Of course, officers get trained on use of force, but many departments don’t have simulators so they can simulate the actual circumstances in which they’re going to find themselves. They don’t have simulated training facilities where they can be outside in an area that simulates what they’re going to find in the streets of their city. That’s the kind of training that we need. That’s the training that we still don’t have yet even in Chicago. If we’re going to continue to empower officers to use deadly force, we are making a mistake if we do not provide them with that kind of very real-time simulated training, so that it’s not theoretical, it’s real for every officer, and that’s got to be re-upped every single year.

Levi: Chief, you started as a patrol officer in 1986, and now you’re chief of a gigantic metropolitan police department. It’s a wonderful career. Can you give us the police perspective on why these shootings continue to happen and what we can do about it?

Art Acevedo: I echo everything that Mayor Lightfoot said, but also that there is no policy, procedure, training, there’s nothing we can do to guarantee 100 percent of the time we’re going to get it right. Human nature is what it is. These are dynamic situations. But I think we start building accountability in having officers be a little bit more critical in terms of their thinking by holding officers accountable.

There are three prongs that I teach my officers [in their] first academy training with myself [and] my two executive assistant chiefs. Number one, am I within state law and the Constitution? It’s pretty broad. The state law and the Constitution do not require you to tactically reposition, do not require you to create distance, do not require you to move out of the way of a moving car. It allows you to stand your ground like in civilian laws across the country, and we know what kind of consequences that’s had for a lot of communities, especially communities of color.

The second prong — and the only required prong that they have to worry about — is departmental policy. Departmental policy in most progressive departments is more restrictive. It’ll require you to not shoot at cars, to get out of the way of a car unless the car’s being used as a weapon. Some people say you should never shoot at a car. That’s simply not doable when we have cars being used as instruments of terror. But the third prong that we talk about with our cops — and I tell them it’s the prong that makes them the heroes that good cops are — that’s the moral compass, that’s that little voice in your head that says, “I’m not going to shoot because I absolutely don’t have to shoot to save my life or the life of another or to stop somebody from serious bodily harm.” And I think that that third prong has to be embedded like Mayor Lightfoot was talking about, and you have to reward and celebrate that third prong when we save lives because we chose not to deploy deadly force even though we were authorized under the Constitution and criminal law and under our policy.

There’s a lot of work to be done here in Houston. We actually have reduced our officer-involved shootings by 50 percent over the years. There used to be about 40 to 45 a year. We’re typically down below — well below — 20 a year for a city of about 2.4 million people, regionally 6.7 million people, 5,300 police officers, and a lot of violence going on. But there’s still a lot of work to be done. We’ve got to hold people accountable, and that’s the biggest piece that’s missing. That can be done right now without training, without policies, without procedures. People understand bad shootings when they see it. But when officers completely abandon their training, when they abandon the tactics and get themselves in a situation where now they have to kill somebody, and it could have been prevented — there’s no sense in training if you’re not going to hold them accountable for the training, and that’s something else we need to discuss across the country.

Levi: Professor Friedman, we’ve talked about training, we’ve talked about accountability. You’ve studied police departments. You’re a leading expert on excessive force, racism, over-arresting, profiling. How do you see these issues coming together here, and what do you see as the solution?

Barry Friedman: There’s a critical element of this that we need to pay attention to. Everyone talks about accountability. It’s exactly the right word to use in this space. But I think what we sometimes do is think of policing as being different than the governance throughout the rest of the country on different subjects. So, whether it’s a zoning board or nuclear energy or environment, anything that government does, there’s a model of governance that sort of falls apart around policing, and that’s the thing that we need to focus on thinking about.

When Chief Acevedo is talking about accountability, he properly is talking about holding individual officers accountable. We call that back-end accountability, after something’s already happened. But what’s often missing in policing is front-end accountability, and his remarks actually underscored that in a beautiful way that I think also emphasizes the importance of the ALI Project on Policing.

Chief Acevedo said there are three things you have to think about. The first is the state statutes, the state law, and the Constitution, but they’re pretty broad, he said. They allow a lot of things that his own department policies don’t permit. What we need to do is think about what those laws are that govern what happens, and that ought not, in my view — though department policies are incredibly important — it ought not depend on what any given department decides will be their policy. The things that he’s talking about — de-escalation, being thoughtful about shooting at vehicles, using time and cover — those should be the law all over the country.

If we had a stronger front end, then you get a set of policies and rules, and like the mayor said, you train to it. You don’t train in the abstract, you train to what the law and policy is. Then, ultimately, it is easier to hold people accountable because everybody knows up front precisely what the rules are that are going to be applied.

People say all the time, and I’ve heard a lot in the last few weeks, that culture eats policy for lunch. But the fact of the matter is that’s pervasively true throughout the world. We all live in cultures. The way that we deal with culture is we regulate it. We have laws and policies that we then apply and people have to learn. The word compliance gets used around policing, but compliance is kind of the buzzword throughout the ALI and the world now in the corporate context anywhere, which is you have a set of rules and policies and then you ensure compliance around it. And just to add one last word, we’ve talked about the killings in Minneapolis and the killings in Atlanta, but there’s also Breonna Taylor, which was a SWAT raid gone terribly bad, and that’s just another area that’s unbelievably under-regulated in this country. There’s a role for tactical teams to be used, but that is the most intense deadly force that we use in this country, and the idea that it’s not regulated at the state level in every state of this country is simply inconceivable to me.

Levi: Ms. Allison, the Leadership Conference has had a focus on policing. In the last few weeks we have seen what would appear to be very strong public support for policing reform. What are activists and advocacy organizations like yours attempting to accomplish in the near and the long term?

Ashley Allison: You’re right, we have seen a groundswell of public will to change policing reform over the last couple of weeks. The Leadership Conference is a coalition of over 200 civil and human rights organizations; two years ago, and many years before that, we were working on these issues. Because while George Floyd and Breonna Taylor and Rayshard Brooks are in the news now, there were names before, and there were names before Michael Brown, that police violence was taking its toll on Black and brown communities. This does feel like a watershed moment where we could have sweeping police reform that we haven’t seen in this country, particularly on the federal level, for over 30 years. And while the Justice and Policing and Safety Act, which is something that we’ve been working very closely with members of the Congressional Black Caucus and the House and the Congress to pass, that won’t stop police violence if we don’t change the hearts and minds of how people see Black and brown bodies in this country.

I believe it goes back to what the mayor said in the beginning. It is about the value of life and dignity and humanity and how people see each other, whether you have a uniform on or you don’t. I always say that the way we will change this country is through people, policy, public will. Some would say that when Black Lives Matter started to trend after the death of Michael Brown, and really started because of the death of Trayvon Martin, and that the world was changing. And yet we saw month after month — Eric Garner, Tamir Rice, Laquan McDonald, all the names to Sandra Bland, Alton Sterling, Philando Castile — that was just in 2016. Now we’re in 2020, and there are so many names, and there are so many videotapes that we have never seen, and we may never know their names. We are just saying enough is enough. We are not saying that law enforcement does not have a role in this country, but the way they show up in communities needs to be addressed.

I want to just quickly talk about what the Justice and Policing Act covers. There are eight prongs to it. It’s saying that there needs to be a standard use of force so that law enforcement across the country understands what type of use of force you should use and when you should use it. We should ban chokeholds. We should’ve banned them before Eric Garner; we should’ve banned them after Eric Garner. We now definitely need to ban them after we saw the murder of George Floyd. It’s talking about ending racial profiling and religious profiling, having a registry around police misconduct across the country so that if one law enforcement officer does something in one community, they aren’t able to easily transfer over to another after being terminated from one police department. It talks about making it easier for the Justice Department to bring charges. When I worked at the White House, people were so frustrated because we had a Justice Department under President Obama’s administration that had the authority to go and investigate law enforcement agencies, but they didn’t have the authority to charge and actually find a conviction. So, we’re saying that changes need to be made to the 242 statute, no-knock warrants need to be eliminated, qualified immunity needs to be addressed, and then we need to demilitarize police officers. We have seen the overuse of force when people are protesting. We don’t think these are radical changes. These are baseline changes that can make communities safer.

Levi: Let’s drill down a little bit on some of these issues. Some of these killings involve volatile family disputes, homeless persons, persons with mental illness or drug addiction. Do we want our police to handle these kinds of calls and situations? Are they trained for it? Is this the kind of thing they should be doing? Or should we create a different kind of entity to respond to essentially social problems?

Lightfoot: Well, I think picking up on one of the last comments that Ashley made, in a world in which we do not properly invest in communities that are suffering, whether it’s investments in healthcare, mental health, jobs, grocery stores, the kinds of things that we know are essential to lead healthy, vibrant lives, the one governmental entity that shows up every day is the police department.

And so, in the manifestations of our neglect are things that the police department then is confronted with when they answer those calls for service. And so, I think as part of this conversation, we need to do two things. Number one, we need to really define what is the proper role of the police in public safety. And it can’t be to be the drug addiction counselor, the homeless intervention expert, all the other things that should be part of a vibrant social safety net. That should not be the role of the police officer as the first responder. And so, I agree with that piece of it. But I think the other piece is, then we do really need to step up and make sure that we’re providing those kinds of supports in communities so that when we get a call for somebody who is suffering mental duress or some other kind of mental health issue, that we have systems in place for the 911 operators and the dispatchers to ask the right questions. And then they should be dispatching not the police, but social service intervenors who can properly address what’s there as needed. And we got a lot of different call responder models across the country. I think that combining that and having the frontline responder in a lot of those circumstances be someone other than the police, one, will better serve the public, but also will take the police out of roles for which they’re never going to be properly trained.

Acevedo: Let me just say that number one, in terms of domestic violence, that’s one of our largest murder drivers in Houston. It is one of the most dangerous calls police officers can go to, so that’s one that I think that once the police are called or someone else is called, we’ve already failed those families. What we have to do is build healthy communities, and what really frustrates me is that in Houston, we have 1.2 million calls for service — not contacts, actual calls for service — disproportionately in communities of color that are suffering what I would say are the symptoms. And the illness is the lack of educational opportunity, mental health opportunity, economic opportunity — that creates the tension in those communities and the circumstances which lead to violence.

I strongly believe that what we have to do is build those processes to take away some of those responsibilities from law enforcement. We support that. But it’s kind of like if you’re in a stadium that needs to be replaced, you don’t tear down that stadium until you build the new one and move into it. And we’re already doing a lot of the things that we’re talking about. At our communications center, a lot of people that call in mental distress, we don’t ever send the police. We are actually diverting that or having counselors deescalate the situation, get the person help right there at the communication center. We’re actually deploying our officers with mental health professionals in civilian clothes, in soft clothing, with a polo shirt on.

But you know what the truth of the matter is? There’s not proper funding to expand these programs. The Houston Police Department Homeless Outreach Team, for instance, in order to get people off the streets, a lot of them have addiction and they have mental illness, and you never know which one came first, the addiction or the mental illness, because they intersect. But by building relationships with people in the community and the homeless community we were able to actually transition almost 400 folks off the streets and into assisted housing. That’s the police department doing it. With 60 percent of the people that we go to a call where a crime’s been committed, we don’t even arrest them. We take them to the Ed Emmett mental health facility. The problem is within 12 to 72 hours, guess where they’re at? Back on the streets. So no matter who handles it, when the need comes up out in the community, we’re going to find out that there just isn’t the infrastructure and the long-term investment to deal with the long-term treatment that those folks need.

So, there’s a lot of work to be done, and to Ashley’s point I think that what’s given me hope is that the conversation is not just about the police right now. People are finally realizing Black, brown, Hispanic, rich, poor, that we’ve got to invest in communities that have been neglected for generations, and until we make those investments, I don’t care what you do with the police, you are going to have tragedy and injustice because the underlying conditions leading to these conflicts have not been addressed.

Levi: So many of these cases seem to originate in what we might describe as a petty offense. It’s a traffic stop but not a DUI, for instance. It’s a $20 bill that may be or may not be counterfeit. It’s a pack of cigarettes. These are quite minor interactions, shoplifting at a retail level. No one should get the death penalty for such things. The police respond and then they arrest, and it’s during that arrest that we get these killings. Should they be making arrests? Should they even be responding to these petty offenses? What about a summons or a citation? I’m not suggesting that we ignore petty offenses, but do they call for arrest?

Friedman: Ashley brought up the phrase “reimagining.” We have a project at the Policing Project at NYU called Reimagining Public Safety, and it’s actually trying to take apart what it is police officers are asked to do all day long, and then to ask who’s the right responder and what’s the right response in all of those different situations? Right now we have a one-size-fits-all idea; somebody calls and we send an armed officer. And we’ve just done that forever. As the rest of society has specialized, we have simply not done that around policing society, which is broader than the police. We need to rethink that in a pretty profound way.

We also really need to think about the rest of government, besides the police. I’m watching everybody point fingers at the police, and I don’t think anybody on this call is going to argue that it’s inappropriate to point those fingers, but I reflect on politicians pointing those fingers when I want to know where they’ve been for the last five, ten, 15, 20 years, because the conditions the police are dealing with were not created by the police. The police didn’t decide to defund mental health in this country.

The police didn’t decide to take resources away from dealing with people who lack shelter. The police didn’t decide that we’re going to have a war on drugs and we’re not going to provide substance abuse help to people. It was the rest of government. And all of a sudden the rest of government’s had this great awakening, which I think is important, but they ought to be reflective about the broader panoply of what we’re offering people in society.

One of the areas we decided to focus on at the Policing Project is traffic. There are lots of people focusing on substance abuse and homelessness and mental illness and novel things happening, but there’s very little attention being paid to just the most common thing that the police do, which is traffic enforcement. Now traffic enforcement has an important role in public safety — as many people die on the streets every year as die from gun violence. And on the other hand, lots of things go wrong with traffic enforcement. Racial profiling, fines and fees enforcement — it’s dangerous for officers and for individuals. And so rather than pointing fingers, what we ought to do is be reflective and contemplative and to try to figure out how can we achieve optimal social outcomes. That’s just not what we’ve done in society. Instead we’ve been like, “Call 911 and send a cop.”

Levi: Suppose you were to, say, issue an executive order, mayor or chief, you put it into policy, and you just say officers may not arrest for nonviolent petty offenses and for traffic offenses that do not affect public safety, at least that pose no immediate threat. You can issue a citation or a summons. At least in the short term, might that stop this cycle of killing and shooting and choking and et cetera that we see leads to these tragedies?

Lightfoot: I think the premise of your question is not quite right. You think about some of these circumstances, and I’ll relate one that happened here in Chicago. We had an individual who was jumping between trains, which is very dangerous and unlawful, but it’s a petty offense. The individual was found by our transit police. They had him outside of the train itself but in the train station. For reasons that again don’t make sense to me, they were trying to put him in handcuffs, and he was resisting but he wasn’t fighting. He just didn’t want to be handcuffed. And they absolutely could not get control of the circumstances. He kept resisting getting in cuffs. One of the officers said to his partner, “Shoot him, shoot him.” Now again, this was not a dangerous situation. This person had not committed a felony. And so then when he heard that, he fled up the escalators onto the street and then you hear two loud retorts where the officer shot this individual twice. Luckily, he lived, but you think in that circumstance what went wrong there? And similar to Sandra Bland, similar to other circumstances.

So the issue isn’t so much should they arrest, the issue is proportionality. In a petty offense, what is the proper response, and why is it that the training that the officers had didn’t lead to a different or better result? Same thing with Rayshard Brooks in Atlanta in the Wendy’s drive-through. Those officers spent half an hour talking to this man and suddenly somehow it escalates to the point where they’re rolling around on the ground with him. Something is breaking down in these circumstances, and I don’t think ‘to arrest or not arrest’ is the issue. It’s the training about how to come in, not at level 10, but with an eye towards deescalating circumstances that are petty and that really don’t warrant a whole lot of police interaction, whether it’s a ticket or otherwise.

But I will also tell you, in many neighborhoods in my city that are incredibly plagued by violence, if we were to say, “No, anything that isn’t a felony you may not arrest,” the worry I would have is how that would actually get interpreted on the street. And people who are causing harm in communities, they are very sophisticated about what the instructions are that are given to police officers. We saw that during COVID-19, where officers were very reluctant to put hands on people. Obviously that dynamic has changed over the course of the last two weeks, but people who were causing harm, they knew exactly that they were never going to get arrested, that they were never going to be held accountable, and they felt like they had full control and dominion over the streets.

So striking the right balance in circumstances that are unique is important. But, fundamentally, if you look at these high-profile circumstances — and there are probably thousands of others that we don’t know about — what it really comes down to is common sense and judgment about how to handle something that truly is a petty offense.

Acevedo: I’ve been a police officer 34 years and I’ve worked East L.A., Central L.A., South L.A., here in Houston. Here’s what people don’t realize, because they don’t spend enough time in the community. Not the community of ten, that’s a term I’ve coined over the years for where it seems like it’s the same people that come to City Hall speaking about the community, but when you look closely they don’t live anywhere near the communities that are being impacted by these issues. Sometimes policy-makers think that they represent the values, the views, and the priorities of the communities that they’re speaking for. One of the No. 1 complaints across the board in the communities even with the most violent crime is actually traffic safety, traffic enforcement, because folks don’t like the speeding cars and the peel-outs, and people acting the fool. Poor communities want to live in peace and in safety, whether it’s from bad policing or people that don’t respect the streets.

So, here’s what I think about policing and what’s happened. We have criminalized childhood in this country. We have criminalized adolescence. When a kid mentioned my mama in the ninth grade, he got punched in the nose. Well, what’s happened since I was in the ninth grade, that same punch today in too many communities doesn’t lead to the counselor, an apology, after-school detention, it leads to a criminal summons. And we are hiring police officers that have never been in a fight. When I was a young cop, if somebody resisted arrest, you had to be explosive, take them to the ground, handcuff them, you’re done. But we’ve lost those skills. We have no communication skills. People don’t talk anymore. The pool that we’re getting cops from, they’ve never been in a fight, they’re afraid, so instead of just quickly getting the use of force over with, taking somebody down, handcuffing them, and dealing with it, they sit there and . . . . The truth of the matter is there’s a lot of work to be done, but I think that once we have the conflict, we’ve already failed society.

We have got to make sure that we’re listening to the communities that are impacted most. And I’m sorry, I don’t think that Black and brown and poor communities, including poor white people — because there’s a lot of poor white people in this country that nobody talks about, and then people want to know why there’s so much anger in poor white communities — they should not have to give up safety and security in order to get all the other opportunities of other communities. It should not be the either/ or proposition, and I think what COVID showed the world was that when COVID-19 impacted Black, brown, white, north, south, east, west, rich, poor, the Congress overnight printed trillions of dollars. I want you to imagine if we would’ve spent trillions of dollars dealing with housing, dealing with addiction, dealing with public health, dealing with mental health, dealing with jobs programs. We won’t be having this conversation a generation from now. If they could do it then, they could do it now, and it’s about us coming together to make sure that we make those investments.

Levi: Ashley, from your perspective, how do we repair, can we repair and build trust of the police in minority communities?

Allison: We talked a lot about escalating versus deescalating versus engaging, and I think it is how you show up in the moment. Are you showing up to be a guardian? Are you showing up to be a warrior? And that really does matter. When you wake up one day and you’re in a bad mood, it changes how you sometimes have conversations with people at your office that day. Law enforcement often has to make split decisions — nobody is discounting that — but it really is the mentality of how you even show up sometimes.

I’ll just share this anecdotally. My grandfather was a police officer in Youngstown, Ohio, where we’re from. I’m not old enough to remember this incident, but I do know the guy who he said changed his life. He was the quintessential community police officer, walking around town in his car, everyone knew him and who he was. He encountered a young man one time that had some drugs on him. He took him down to the station but didn’t process him. He took him down to scare him a little bit, tell him this is what’s possible, but then said, “I don’t ever want to see you again.” Did the speech, “turn your life around, I’m going to check on you, I’m going to call your mom, I’m dropping you off back home.” That man is in his 70s now and is still friends with my father. Now, Youngstown is a lot smaller than Chicago and Houston, but you can interact with a person who is about to make a mistake, and you can say, “Not on my watch.” You can say, “You’re going to make a mistake, and I’m going to prosecute you and put you in jail and change your life drastically,” or “I’m going to see you as a person and give you the opportunity to make a mistake.” And I think what’s so frustrating to me is if we are honest, Black people and brown people and poor people don’t have the privilege of making a mistake.

We know that when Black people make a mistake versus a white person making the same mistake, the white person might not even be arrested, they probably won’t go to jail, and if they go to jail their sentence won’t be as severe. We have the statistics to show that. Policy will help that, but there has to be a will to know we are all human, that people are treated differently in this society, and we have to stand up and say no.

I think that the arc of the moral universe is long but it bends towards justice. It is a long road ahead. I appreciate the video of Chief Acevedo marching in the protest. That is a step forward, but that is not going to heal the wound. That will be the day when we don’t have to see another Black person murdered on television. It will be the day when Sandra Bland or Breonna Taylor doesn’t happen. We want people to stop being killed. That is the day that trust between law enforcement and communities of color I think will ultimately be resolved.

I know when I am in distress and I need help, I call law enforcement, I rely on them. I also know, though, that when I was told I needed to wear a mask every day, I was afraid. I have changed my lifestyle since COVID, making sure I don’t walk on the streets wearing a mask at night. I do it not just because of law enforcement, but I do it because of the Amy Coopers of the world who will call the police because I live in an affluent neighborhood and they think I don’t deserve to live here.

So, there are multiple layers to this conversation. I don’t think law enforcement is going to be the one antidote to solve it. I think this configuration where we have public officials like the mayor, law enforcement, academics like yourself and Barry, and advocates like myself here will be a part of it. But one thing I think is missing, we don’t have a true activist right now on this call. There are people who have been in the streets every day fighting, and we need them, too. We need them to be a part of the conversation. We can’t roll our eyes when they say things we don’t agree with, because they ultimately will be a part of the change.

Friedman: Ashley is right about the activists. I know that there are many things that the activists have said that alarm folks, but the fact of the matter is we are seeing rapid change of a kind that we have needed for a long time, and it is happening because of the street. I had a student years ago who did a study of what motivates legislative bodies in the policing space, and it was two things: it was court decisions that forced them to do things, and it was salient moments. This is a salient moment, and it is causing us to get a lot of reforms that we’ve long needed. The ALI issued a report last week that basically was a long list of federal, state, and local reforms, many of which are happening and would not have happened if not for the protests.

I was really touched by Ashley’s discussion about what ought to be the relationship between the police and members of communities, because that has severely broken down. We have a project called the Neighborhood Policing Initiative, and the goal is to actually connect officers to the communities in which they work by giving them time off of their radios to work with community folks, and also empowering the community folks to have a voice in how they are policed. And you know what’s amazing about it is the cops who are doing it really like it. And the people in the community who are working with them feel like — and these are folks who just didn’t want to have anything to do with the cops beforehand — they are finding that there’s a way to solve problems together. That’s the thing that I think we’ve really lost in policing at the ground level that we need to get back, which is empowering the community to have a voice and work with the police in solving the problems in their communities.

Levi: Can we address the concept of defunding police departments?

Lightfoot: When I hear these cries for defunding, what I hear is we feel like we have been neglected, that we haven’t gotten the kind of investments that we need. It goes back to many of the things we’ve talked about today, and I agree with that. And I know in Black and brown neighborhoods in my city, not having a police presence would lead to total chaos. Now, some will say, “Well, yeah, but you’ve spent all this money and the community’s still unsafe,” but the reality is police are making a difference in addressing really, really violent areas of our city, and the absence of any meaningful police force, we know what that looked like. We saw a glimpse of that through COVID. And while we would’ve expected the violence rate to go down in our city, when the police pulled back it went up. And going back to the statement that the chief made, you don’t burn down and bulldoze a building and then not have a replacement. We have to be thoughtful in thinking about how we transform public safety in areas particularly where the police shouldn’t be the first responders, maybe not even respond at all. I think that’s a conversation absolutely worth having.

These conversations around defunding never get to this point: In many police departments across the country that have historically locked out Black and brown members, communities are saying, “We want the police force to look like us, to be more representative of who we are.” Those efforts have really taken place in earnest over the last five to ten years. If we defund the police literally, that means we’re going to be getting rid of police officers on the basis of reverse seniority, which means we’re going to be gutting our diversity that’s taken us long years to build up. So, there’s a host of reasons why literal defunding doesn’t make sense to me. But really, I support, and we’ve been doing that in Chicago, investing communities in ways that we really haven’t done in decades.

This, to me, is a moment where we listen first. What we’ve seen unfortunately is too many politicians pander to the crowd and react. But if we’re going to really make meaningful, thoughtful change that’ll stand the test of time, we need to listen first, and then we need to act with intentionality. And there’s a lot of good expert testimony, expert thoughts, from people of all stripes that are informing this conversation. Yes, we need to have a sense of urgency, because the status quo clearly has failed. But we need to be thoughtful and intentional about what we do to implement policies that actually will add value and be meaningful through the long term, not just pandering to the prevailing political whims in this moment. So, we’re trying to be thoughtful and careful in Chicago, and I hope that becomes the prevailing national discussion.

Allison: I think there’s a role for law enforcement in our communities. I think we have to reimagine what that role is and how we get there. There’s a lot of federal funding that goes to police departments. I think that there needs to be some accountability, that if you receive federal funding you have to take certain steps to make sure the training is appropriate, that your use of force policies are appropriate. We do have to be bold, we do have to be courageous in this moment, and we do have to listen to the people who are really hurting to help us get to the place where people can trust law enforcement again and people can live in safe communities regardless of their economic or racial background.

Acevedo: No one’s talked about demilitarization. It’s not about the equipment, it’s not about whether or not we should have long rifles because, let’s be really clear, this is the most violent society in the free world. We have weapons here, really bad actors and sometimes crazy people. Just think back to Dayton, Ohio, last year, where a madman with hate in his heart, whatever was his problem, murdered nine people. That was the night when we went to bed thinking about El Paso, and we woke up the next morning with Dayton. That man was about to enter a very crowded bar with an assault rifle with a hundred round drum magazine, and it was a Dayton police officer with a military-style rifle that was able to end that threat before that man killed somebody.

It’s not about what equipment you have, it’s not about what funding you get, it’s about the policies, the procedures, the training, the oversight, the command and control. You’ve got to be transparent in how you’re going to use it. You’ve got to be consistent in how you’re going to use it, and you’ve got to demonstrate to the administration that’s giving you this equipment and this funding that you have all the systems in place to ensure that they’re used only under the right circumstances. So, I look forward to, again, lifting up my voice on behalf of the people we serve and the men and women we lead.

Friedman: I’m sympathetic to the argument that there’s a role for this sort of equipment that the chief is talking about, but one of the things that we all ought to realize about the defund movement or the abolish the police movement is it took a lot for society to get to that point. It took a lot of bad policing to get people to say we actually want the police out of neighborhoods that have issues with crime and violence. And so, the problem we have is that there’s just been this huge loss of trust and the question is what regains it, and we have to be thoughtful about that.

The second is a technical legal point, but I want to make it because I know Ashley’s on the Hill and people are talking about the federal government effecting change and conditions on spending grants, and I just want to urge everybody not to forget Section 5 of the 14th Amendment. On issues like use of force and racial profiling, I think there’s cause for the Congress to actually step in aggressively and say, “This is the way things are going to be throughout the country, and we don’t even have to tie it to national grants.”

And finally, at a moment where people seem very much at loggerheads, I want to at least try to make a point of connection, which is there is a way in which the very strongly-worded defund movement shares a lot of commonality with what a lot of cops would say. And we’ve got to seize on that commonality and make it work. It’s been an underlying theme in this entire conversation, which is that in the “defund” movement, people feel that resources have gone to the police when other responses were appropriate to very serious social problems, and the police would be the first to say they are not the ones to be responding or at least primarily responding to those social problems. So now is the moment to actually hear from the protestors and the police and start to think about what a different world looks like in which we are not simply using this one-size-fits-all armed response to all the problems that society faces.

Levi: Thank you all. That was such a great conversation. Thank you for sharing your wisdom and your knowledge. The challenges that you face in your work and that we are now facing as a country are so complex and difficult. How fortunate we are to have people like you addressing these challenging and tragic problems and circumstances. A lot is riding on how we handle these issues, including the realization of our hopes for a justice system that protects and serves all Americans. We certainly wish you well, and we look forward to finding ways of supporting you in your efforts.

Find the full transcript, video and podcast links for this conversation, along with more resources about policing reform at: judicialstudies.duke.edu/episodes/policing.

About Lori Lightfoot

Lori Lightfoot is the mayor of Chicago. Prior to her election last year, she served on Chicago’s Police Accountability Task Force and as president of the Chicago Police Board.

About Art Acevedo

Art Acevedo is chief of the Houston Police Department and an advisor to the American Law Institute’s Principles of the Law, Policing Project.

About Barry Friedman

Barry Friedman is Jacob D. Fuchsberg Professor of Law and founding director of the Policing Project at NYU, and chief reporter for the ALI Principles of the Law, Policing Project.

About Ashley Allison

Ashley Allison is executive vice president of the Leadership Conference on Civil and Human Rights and a former senior policy advisor in the White House Office of Public Engagement.

About David F. Levi

David F. Levi is the Levi Family Professor of Law and Judicial Studies and Director of the Bolch Judicial Institute. He served as the James B. Duke and Benjamin N. Duke Dean of the School of Law from 2007 to 2018. He previously was Chief United States District Judge for the Eastern District of California, with chambers in Sacramento. He has served as chair of two Judicial Conference committees by appointment of the Chief Justice. He was chair of the Civil Rules Advisory Committee (2000-2003) and chair of the Standing Committee on the Rules of Practice and Procedure (2003-2007); he was reappointed to serve as a member of that committee (2009-2015). In 2014, he was appointed chair of the American Bar Association’s Standing Committee on the American Judicial System, and in 2015, he was named co-chair of the North Carolina Commission on the Administration of Law and Justice. He also is a member of the ALI Council and was an advisor to the ALI’s Federal Judicial Code Revision and Aggregate Litigation projects.He is an elected fellow of the American Academy of Arts and Sciences and currently serves as president of the American Law Institute (ALI).