NATIONAL ORGANIZATION OF

BLACK LAW ENFORCEMENT EXECUTIVES

Bias-Based Policing

Introduction

“Justice is Blind” represents the basic motto and principle of our criminal justice system. It symbolizes equity in the administration of justice and represents our basic right in a free society. For many in the minority community, however, society is not that free and justice is far from blind. Justice in many cases has perfect 20/20 vision that distinguishes people on the basis of race, ethnicity, gender, religious beliefs, and social and economic status.

Justice is among other things a system of people influenced by the biases and stereotypes brought to and learned at the job. In many cases, biases and stereotypes may be unintentional and applied subconsciously. In some cases, however, biases and stereotypes are intentional and malicious, rising to the level of blatant discrimination. Whether intentional or unintentional, the application of bias in policing tilts the scales of justice and results in unequal treatment under the law.

Bias-based policing may be defined as:

The act (intentional or unintentional) of applying or incorporating personal, societal, or organizational biases and/or stereotypes as the basis, or factors considered, in decision-making, police actions, or the administration of justice.

Bias-based policing impacts all aspects of policing and should be considered the most serious problem facing law enforcement today. Racial profiling, also known as - Driving While Black or Brown (DWB), excessive force, police misconduct and the shootings of unarmed minority suspects and undercover officers are in many cases symptoms and manifestations of bias-based policing.

Administrators often fail to recognize the true problem and respond only to the symptoms. Responses are usually “knee jerk” and largely ineffective. New symptoms appear; new responses are developed. Valuable time and resources are wasted on creating policies in response to symptoms versus eliminating the problem through a comprehensive systematic approach.

Racial profiling and the debate over the collection of traffic stop data are examples of responding to symptoms.

Racial profiling is the act of using race as the basis for any police action that imposes on the basic freedoms granted in a democratic society. For many in the minority community, racial profiling is an old phenomenon with a new name. A common response to racial profiling is the development of policies that declare racial profiling illegal, limit officer discretion in the area of traffic stops, and mandate training in cultural diversity.

These measures are a necessary first step, but alone they cannot reduce bias in an organization. Symptoms will resurface and appear in other areas such as walking stops, the use of force, police misconduct, as well as minority officer recruitment, retention and promotion. Racial profiling is not the standalone problem; it is a symptom of bias-based policing.

In many ways, bias-based policing is similar to a disease. Cure the disease, the symptoms stop; cure the symptoms, the disease remains and recurring symptoms appear. When the disease (bias) is removed, the symptoms (racial profiling) should dissipate.

Should agencies collect traffic stop data?

Many administrators believe traffic stop data collection is essential in eliminating racial profiling. Others believe data collection is not effective and will prove too expensive and time consuming.

Data collection has symbolic as well as practical value. The willingness to collect data can instill public trust and confidence. The courage to mandate data collection can improve accountability systems, fortify organizational values, and help “operationalize” the Law Enforcement Code of Ethics. Data analysis can be crucial in diagnosing types and levels of bias within an organization, as well as developing systems to remove bias.

The value of data collection clearly outweighs the associated time or costs, but it is also true that data collection poorly done or poorly analyzed can lead to misunderstandings at best and mistaken policies at worst. It is important to do the data collection right—and then to analyze and present it in useful forms to a variety of audiences and stakeholders.

It is time to end the debate over whether traffic stop data should be collected and move to more practical questions. Which data? Collected how, analyzed how, presented how? These questions do not occur in isolation—the answers depend on how the information can be used in the development and implementation of bias-reduction strategies.

A word of caution…the decision and public announcement to collect data must be part of an overall strategy to reduce bias-based policing. This will establish reasonable expectations for the community and prevent panic and forced political reactions if the statistics are not a “perfect match” with the demographics of the city. The importance of the data collection will be viewed as part of an overall strategy to reduce bias and not viewed as the sole indicator or solution.

Are there standards in data collection and analysis?

There are no current standards in data collection or analysis. It is likely that most agencies are not collecting sufficient data to provide comprehensive analysis. Professional, collaborative research is required to identify what data beyond traffic stop statistics are required to ensure statistics are not skewed. Law enforcement must now call upon statistical experts in academia for assistance.

The National Organization of Black Law Enforcement Executives (NOBLE has partnered with organizations such as the American Civil Liberties Union (ACLU) and the RAND Graduate School to research and identify what data should be collected, and identify how data analysis can be used to reduce bias-based policing.

Another symptom of bias-based policing is the use of excessive force.

The recent “accidental” shootings of off-duty and undercover minority officers in New York and Rhode Island, as well as the tragic shootings of Amado Diallou in New York and Tyisha Miller in Riverside, California, appear to be the result of bias-based policing. Many administrators, however, have focused on the shootings as the standalone problem and turned to firearm simulation training as the response.

The pervasive belief that the nature of the problem is the inability of officers to react to deadly encounters rapidly and effectively. Simulators increase reaction time and decision-making skills through shoot-don’t-shoot scenarios. It therefore stands to reason that the use of simulators will decrease incidents of this nature.

This response would be effective if the “nature” of the problem were shooting skills. The nature of the problem is bias. Otherwise, these types of shootings would not affect predominately minority officers and suspects. Non-minority officers carry off-duty weapons, work undercover and encounter on-duty officers, yet very few are mistaken for suspects and shot.

The current use of firearm simulation training does not assess or compare levels of force relative to bias. The training assesses shoot-don’t-shoot in terms of legality, reaction time, and shooting skills under pressure. In most cases, neither the simulator nor the firearm instructor are equipped or qualified to determine whether the officer’s decision to use deadly force is influenced by stereotypes or bias.

Event after extensive training with the simulator, officers may still possess biases that result in higher levels of fear for minorities, which can taint the decision to use deadly force. In the end, the only change the simulator has affected is improved shooting skills – which could result in faster and more deadly uses of force against minorities.

Stereotypes and biases result in higher levels of fear for minorities - which result in higher levels of force - applied in faster periods of time.

The two scenarios listed below may provide an example of how bias increases fear for minorities. Please review the scenarios and note your immediate assessment of each situation(s).

You are on routine patrol in a predominately minority neighborhood that is low income and high-crime when you see:

1. A black male, 25 years old, wearing blue jeans and a sweatshirt standing on a corner known for high narcotics activity. He is holding a pistol and pointing it at another black male.

2. A white male, 25 years old, wearing blue jeans and a sweatshirt standing on a corner known for high narcotics activity. He is holding a pistol and pointing it at a black male.

The use of deadly force in each scenario would most likely be deemed legal, as it is reasonable for an officer to be in “fear of his or her life or the life of another.” If your assessment of scenario #1 differed from scenario #2, however, the likelihood of varying and increasing levels of force in each scenario is extremely high.

The scenarios have been presented to numerous officers of different races and ethnicity. In almost every case, the officer stated their initial assessment of scenario #1 was that the black male pointing the gun was probably robbing the other black male. Conversely, the white male pointing the gun at the black male in scenario #2 was an undercover or off-duty police officer. The assessment did not change between minority or non-minority officers.

Clearly, the black male holding the gun in scenario #1 is more likely to be shot by responding officers than the white male in scenario #2. Does this mean the officers are racist or “bad” officers? Of course not, the majority of officers in this country are truly America’s finest. The problem is bias and its impact on law enforcement and society as a whole.

Bias-based policing is not limited to “white” officers nor is it as simple as racism or discrimination. Bias-based policing is a systemic problem in our profession and society. Bias is created by the core values instilled by our families and shaped by our life experiences. In many instances, experience serves as the greatest creator of bias.

Justice is not blind

The symbol of justice is a woman holding a scale - blindfolded. The symbol does not suggest the woman is free of bias or that justice is blind. The symbol represents the need to blindfold those empowered to administer justice from personal and societal prejudices when exerting the authority and power of office.

It is impossible to completely remove bias from people - it is possible, however, to create systems that “blindfold” people from bias. To create blindfolds, agencies must analyze formal and informal operating systems and identify more efficient and equitable practices in each of the following domains.

Most agencies have mission-vision-value statements that are posted throughout the agencies. In some cases, the only value they provide to the agency is wall decoration. Mission-vision-value statements must be “operationalized ” to change the culture of the organization.

The mission statement should identify the following: Who are our customers? What service(s) do we provide? How do we provide it? The vision statement should identify the future goals of the agency. The value statement should identify how we treat our customers and our employees and serve as the organizational “Bill of Rights”, which should never be violated.

The mission-vision-value statement must be incorporated into every aspect of operations. Each level of the organization must identify what role they play in achieving the overall mission. If the mission, vision and values are not understood, the direction of the agency is left to the officers in the field. Consequently, the focus and direction of staff as well as the deployment of resources may be based on officer preference not necessarily community needs or priorities.

Administrators must be creative and relentless in marketing the mission-vision-value statements throughout the agency and the community. Mission-vision-value statements should be posted in every division, precinct and substation, and printed on the back of business cards and all reports. Promotional examinations must evaluate a candidate’s ability to “operationalize” the mission, vision and values of the organization.

All awards and citations should be based on actions that reinforce organizational values and contribute to the overall mission of the agency. Written commendations should cite wording from the mission-vision-value statement and describe how the actions of the officer positively contributed to mission. Discipline should be based on the inability to accomplish the mission or the violation of an organizational value.

Disciplinary letters or notices should not only cite the regulation or law violated, it should also cite which value was violated and describe how the violation detracts from the overall mission of the agency. In short, the mission-vision-value statement must become one of the most important documents in the agency…every officer should be able to cite and explain them.

Agencies that establish a culture primarily focused on crime reduction are more likely to experience bias-based policing and increases in officer misconduct. The end result is an attitude to reduce crime “by any means necessary”, and in many cases target people based on race, biases and stereotypes.

Phrases such as the “War on Drugs - War on Crime - Scorched Earth - Zero Tolerance” may contribute to a culture of community intolerance and a "we versus them" mentality. The message of service may be replaced with a message of war. Administrators must recognize that their words, phrases and actions can either reinforce or contradict the mission statement. Agencies must take advantage of every opportunity to reinforce the mission and the message of service…especially when implementing and promoting proactive enforcement programs.

Law enforcement agencies must establish a culture that values quality and effective service over quantitative measures and/or arrests. Performance evaluations, awards and promotions must be based on the ability to accomplish the mission within the guidelines of organizational values, not solely on arrest or statistics. Officers must clearly understand that the agency and its management values service over enforcement…enforcement must be accepted as a tool of the police, not the mission of the police.

Agencies must be forthright in their recruitment efforts. Marketing strategies must provide prospective candidates a clear understanding of the duties and responsibilities of the job. Agencies should avoid using the image of television “cops” to attract candidates and provide candidates a true picture of law enforcement.

A recent recruiting commercial in northern California displayed officers in gas masks, pointing firearms and making high-risk entries. The commercial focused on excitement and failed to display the basic nature of the job, which is service. The commercial appeared to target “thrill seekers” versus service-oriented candidates. Marketing strategies must reinforce the mission, vision and values of the agency.

Law enforcement agencies across the nation have initiated accelerated hiring programs, which in many cases equates to the accelerated hiring of unqualified candidates. Administrators must avoid the temptation to recruit and hire candidates with clear warning signals in their backgrounds, and closely evaluate candidates with no experience in dealing with a diverse community or candidates without any work or life experience. It is better to have staff shortages than hire the wrong officer(s).

Administrators must recognize the true value of diversity to an organization.

The race or gender of an officer does not make a better officer - diversity, however, does make for a better organization.

Agencies must strive to diversify all levels of the organization to reflect the demographics of the city or jurisdiction represented. Diversity can establish trust in the community and reinforce organizational values. A diverse agency has diverse views that provide administrators varying perspectives in the development of policies, procedures and crime-reduction strategies. Administrators must manage diversity to accomplish the mission.

Most states have established commissions governing peace officer standards and training that require police candidates attend professional academies. The quality of training provided to new recruits for the most part is excellent; it is the focus of training that is in need of change.

Many police academies devote more than a third of the curriculum on the use of force. This sounds reasonable, especially considering the impact of the inappropriate use of force on the agency and community. The training, however, is often focused on “how” to use force instead of “why” to use force.

Administrators are led to believe that extensive training on “how” to use force is required to avoid liability. Clearly, administrators must ensure officers receive sufficient firearm and self-defense training to obtain and maintain a high level of competency. It appears, however, that most criminal and civil actions against officers and agencies are based on the decision to use force or the level of force, not necessarily the manner in which it was applied.

It is therefore crucial that we balance the number of training hours provided in those areas that impact the decisions to use force, such as police ethics, cultural diversity, community-oriented policing, conflict resolution, handling mentally-ill, and tactical communication.

Academy testing processes must ensure candidates are not overly influenced by bias.

Administrators must remove candidates who can not be “blindfolded” from their personal or societal biases. Police trainees should be considered “at will” employees to provide administrators the ability to remove trainees without lengthy disciplinary processes. It is better to remove a trainee for the inability to blindfold bias, then terminate a trainee after he/she becomes a police officer for violating the Code of Ethics. The obligation to provide police services in a constitutional manner outweighs the potential release of a trainee.

Agencies must provide training in ethics, conflict resolution and decision-making with the same regularity as firearms and self-defense. Police ethics must be incorporated in all facets of training and trainers must be cross-trained in police ethics and bias identification. Training must become the responsibility of supervisors, managers and administrators, not just the academy staff.

Two levels of the organization are usually held accountable for officer misconduct, the officer(s) who commit the offense and the Chief of Police. First line supervisors and managers are rarely disciplined or held accountable for the conduct of their officers or the “tone” of their units.

Accountability systems must hold every level of the organization accountable for misconduct. Supervisors and managers must be held accountable for the conduct of their subordinates when it is reasonable for them to have known about the misconduct and no corrective action is taken.

Supervisors and managers must also be accountable for establishing a culture or “tone” within the agency that embraces the organizational values and the Law Enforcement Code of Ethics. Supervisors and managers who “overlook” incidents of misconduct, protect officers from accountability or fail to take immediate corrective action must be removed from positions of responsibility.

Disciplining supervisors and managers for the actions of their subordinates is not common and is often met with great opposition. The most notable case was in the aftermath of the tragic shooting of Tyisha Miller in Riverside, California. The Riverside Police Chief not only fired the officers who shot and killed Ms. Miller, he also fired the sergeant that supervised the shooting scene…citing the sergeant’s failure to provide leadership contributed to the death of Ms. Miller.

The chief’s decision was not viewed as popular and met with extreme opposition. The opposition was so fierce that officers in the police association shaved their heads in protest and spent thousands of dollars to initiate a door-to-door marketing campaign against the chief. In the end, the police association lost the campaign and the community demanded change. The Riverside Police Department is under investigation by the United States Department of Justice Civil Rights Division for possible patterns and practices of police misconduct and undergoing major reform.

Establishing managerial accountability is somewhat risky and requires courage of conviction, but the long-term benefits to the department and the community outweigh any opposition.

An important tool for supervisors and managers is the ability to identify officers with track records that would indicate the inability to blindfold bias. Early Warning Systems (EWS) must at minimum identify officers who display bias indicators such as:

4. Large number of arrests that are not charged due to improper detentions and/or searches

5. Negative attitude regarding programs that increase or enhance police-community relations

An effective EWS will also track areas such as vehicle accidents, sick leave abuse and other indicators that would reflect a decline in performance. Increased supervision, as well as additional training and/or counseling must be provided to officers identified by the EWS.

Transfers from high-profile assignments, discipline or removal from office must also be considered for officers continually identified as “high-risk”. Chief Executive Officers (CEO) must retain the authority to discipline employees. The power to discipline should not be delegated to lower levels of the organization, higher levels within city government or external review boards or commissions. The inability to discipline officers removes the ability to set the “tone” of the organization or establish accountability systems.

This is not to suggest that employees should not have due process or even an appeal process. Nor does it suggest that agencies should not support external review boards that serve as audit or appeal forums for the community. It simply means the CEO makes the final decision. After all, the CEO is selected by on their ability to make tough decisions in a fair and effective manner.

Too much of a good thing can be bad. This can also apply to officer assignments. Vice, narcotics, specialized street enforcement and gang units place officers in negative environments for extended periods of time. Officers spend the majority of their time interacting with a negative element of the community that represent less than ten percent of the population. Officers left in this environment may become involuntarily conditioned to judge an entire community based on their limited contacts.

Officers can also become malice, callous and even apathetic. This is especially true in minority communities with high crime. Officers must be routinely rotated to increase interaction with all segments of the community. Officers must be conditioned to recognize that the negative segment of the population is not the standard to evaluate an entire ethnic group or community.

Selecting future leaders of an agency is one of the most critical tasks of an administrator. Civil service rules, labor contracts and political pressures often limit appointment authority. Most agencies are required to use a promotional testing process to create eligibility lists. The most common process is the assessment center, which usually includes multiple-choice tests, written essays, oral interviews, role-play and in-basket exercises. These processes are generally effective, but they do have areas that contribute to bias-based policing.

In most assessment centers, assessors are recruited from outside agencies based on their rank. Captains are sought to evaluate lieutenants; lieutenants evaluate sergeants…and so on. In many cases, the agency does not know the background of the assessor or the guiding philosophy or values or their organization. Promotions are consequently left to the judgement of the consultant delivering the exam and assessors from other agencies. Under this system, top candidates may have a bad day and unqualified candidates can “tap dance” their way to the top of the list.

Some agencies use assessment centers that select assessors from within the agency. This too may pose a problem. The candidates’ reputation or past interactions (positive and negative) with supervisors and managers may taint the objectivity of the assessors and compromise the integrity of the examination. If the agency lacks diversity at supervisory and command levels, it may also contribute to a perception that the process is bias against minorities. Whether true or not, promotions under this system may appear to be based on popularity or the “good old boys” system.

A NOBLE executive recently participated as an assessor in a captain’s promotion assessment center for a mid-size agency in the south. The agency was undergoing major reform and adopting community-oriented policing. The chief of police was very progressive with a clear vision…community policing and the most professional department in the nation. A private consulting firm presented the test with assistance from the city’s personnel department. Prior to the start of the examination the assessors received training on candidate rating and evaluation.

The assessors were asked to review examples of each exercise, which included an in-basket exercise, oral presentation and an employee subordinate meeting. Included in the in-basket exercise was a letter from a pastor representing twelve churches in the minority community.

The group was concerned about police relations in the minority community and felt officers were “racially profiling” young black men. The church wanted to conduct training in regard to driving while black (DWB) and “what to do when stopped by the police”. The group was asking for a representative of the police department to attend the meeting and assist with the training.

The letter was sent to the candidate who is the new precinct captain. The consultant stated the successful candidate should recognize that the minority community often has hidden agendas. He further stated that even when relations between police and the minority community are good, leaders in the minority community would have personal agendas during high-profile incidents such as a white officer shooting a black suspect. The consultant stated the successful candidate would not attend the meeting. The candidate would instead send a reply letter asking for a meeting in the near future. It appeared the consultant believed the minority community is only an ally as long as they unconditionally support the police.

The NOBLE executive became concerned and stressed the need for every community to question the use of deadly force by the police. The executive stated that the meeting with church pastors provided the new precinct captain an opportunity to meet with key leaders in the minority community and listen to their concerns. The meeting also provided a forum to reinforce the organization’s mission, vision and values. Most importantly, the new precinct captain must recognize that the people sharing their concerns at the meeting are the same people needed to improve police and community relations.

Also included in the exercise were letters from a business group and college administrator outlining their concerns. The consultant, without hesitation, suggested the successful candidate would attend these meetings. There was no mention of personal agendas or apprehensions. Why? Once again the key word is bias. Clearly, bias and stereotypes tainted the consultant’s view of the minority community.

The consultant’s view of the minority community does not necessarily suggest he is a racist. It does reflect an attitude that not only is it permissible for the police to provide a lesser level of service to the minority community, it is actually expected.

What would have happened if the NOBLE executive had not mentioned his concerns to the consultant? What type of candidate would have passed – what type would have failed? Too often the answers to these questions appear on promotion eligibility list. Administrators are then forced to live with the results.

Fortunately for the chief of this agency, his message of service was strong enough to “blindfold” the bias and prevent it from negatively impacting the testing process. All but one candidate recognized the value of the meeting and stated not only would they attend, they would also instruct all of their lieutenants to attend.

Promotions are too critical to the future of the profession to be left to the judgement of personnel consultants. CEOs must take a personal interest in the process and to the extent permissible, review, audit and approve all materials and assessors prior to the examination process. CEOs must ensure promotional examinations are fair and impartial and designed to measure competency based on objective behaviors. Examinations must also utilize a diverse pool of assessors who share the mission, vision and values of the organization as well as the demonstrated ability not to be influenced by bias.

Examination results should not surprise a CEO. To the contrary, examination results should reinforce the knowledge, skills, and abilities required for the position and reinforce the agency’s mission, vision and values.

Promotions are not rewards - they are responsibilities. The baton of leadership must be passed to those who are prepared to provide leadership, not simply those who can take a test.

Is there a conflict between safe streets and civil liberties? Drastic crime reductions over the past few years and the promise of even greater reductions have resulted in the increase of overly aggressive police tactics and enforcement programs. Communities are forced to choose between safe streets or civil liberties. In many urban settings the minority community is the greatest consumer of police services. Yet, the greatest consumer is often the most violated.

The minority community is often led to believe that overly aggressive police tactics are needed to reduce crime. As mentioned earlier a “we versus them” mentality is created and bias-based policing is reinforced. Minorities are in many cases forced to stereotype within their race and accept police misconduct against other minorities labeled or profiled as suspects of crime.

Many in the minority community support officers found guilty of misconduct or criminal behavior.

An alarming phenomenon occurred in the aftermath of recent officer misconduct cases in the cities of New York, Los Angeles and Oakland, California. Officers were accused of egregious ethics and criminal violations ranging from excessive force and torture to the planting of narcotics on suspected drug dealers. Some in the minority community, however, made public comments in support of the officers…citing a need to be tough on crime. This belief clearly displays a willingness in the community to accept officer misconduct in hopes of crime reduction.

When a community is led to believe that their safety and quality of life is primarily dependent on overly aggressive police tactics, it may result in an attitude of acceptance of civil rights violations against persons identified or profiled as “suspects”.

Law enforcement must accept responsibility for the community’s belief that crime reduction outweighs civil liberties.

The message of service must not only be conveyed within the organization, it must also reach the community. Many administrators continue to embrace enforcement and arrest(s) as the sole answer to crime. This mentality has sustained the “war on crime” and resulted in the disproportionate arrest and conviction rates of minorities.

Statistics suggest that the most notable crime reductions occurred during the recent community-policing era of policing, not necessarily the enforcement era of the 80’s. It does not appear that we won the “war on drugs”. We have an obligation to move forward and use police and community relationships to develop comprehensive crime-reduction strategies that attack all facets of crime, not just incarceration.

President Bill Clinton recently stated “…we can do both”. The president was referring to safe streets and the protection of civil liberties, pointing out that the police cannot reduce crime alone.

To reduce crime and maintain safe neighborhoods, the police and the community must enter into a partnership that uses problem solving as its basic principle. After all, the police are part of the community as well.

In 1829, Sir Robert Peel of London, England - most widely known as the father of modern law enforcement and founder of the first law enforcement agency – described the basic principle of policing as:

Administrators must have the courage to manage by principle-based leadership and serve as the driving force for change. Administrators cannot fear change - they must change fear. We must make the commitment to do the right thing and not worry about “popularity”.

“The popular decision is not always right, and the right decision is not always popular”

The CEO of today must survive politically charged environments, strong labor unions and laws, and extremely demanding communities. The true challenge is not to get so focused on keeping your job, that you forget to do your job. Crime reduction, and even community satisfaction, at the cost of violating the constitutional rights of one person is never acceptable.

More than three decades ago, Professor Jerome H. Skolnick published “Justice Without Trial”. Professor Skolnick stated the phrase “law and order” can be misleading because it draws attention away from the incompatibilities between the two ideas. Order achieved through democratic policing is concerned not only with the ends of crime control, but also with the means used to achieve those ends.

This article is not intended to provide a quick fix program or panacea to reduce racial profiling or bias-based policing. It demonstrates the need to focus on bias-based policing as one of the most critical problems in law enforcement, and reinforces the importance of establishing effective operating and accountability systems.

The elimination of bias-based policing requires a comprehensive program that establishes effective systems in all aspects of policing. These systems must be driven by principle-based leaders with the courage to make change and demand the best quality of service for our communities.

The NOBLE motto best describes how to ensure safe streets while preserving civil liberties.