Police are supposed to “protect and serve” the community, but that’s a far cry from what modern-day policing often looks like in our country. The recent murders of Breonna Taylor, Tony McDade, George Floyd, and others highlight the need for drastic systemic change, yet again. ACLU Policing Policy Advisor Paige Fernandez walks us through the history of our problematic policing systems and explains both why it's so hard to hold police accountable and how the ACLU is addressing this moving forward.

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MOLLY KAPLAN
From the ACLU, I’m Molly Kaplan, Director of Multimedia for the ACLU and your host for this episode.

Police are supposed to “protect and serve” the community, but that’s a far cry from what modern-day policing often looks like in our country. The recent murders of Breonna Taylor, Tony McDade, George Floyd and others highlight the need for drastic systemic change, yet again.

The ACLU is committed to advocating and litigating for that change. Following the lead of the Movement for Black Lives, we are calling for a new vision of policing -- one where police have a smaller footprint and presence in American life.

Joining me to discuss and break it all down is our Policing Policy Advisor, Paige Fernandez.

But first, one of our producers, Rebecca McCray, attended a protest on Monday night in Brooklyn, New York, and spoke with three protesters about why they are calling for change.

NAT SOUND - PROTESTS

REBECCA MCCRAY
[00:01:02] Why are you out here today?

CHAC YEARWOOD
[00:01:04] The reason I’m out here is because I have two college degrees, but yet I'm still treated like I'm nothing. When I drive home from open school night with a shirt and tie on and the cop comes behind me in their car, I get nervous. That's embedded in me. I'm tired of hearing, there are a few rotten apples. There's not a few rotten apples. The tree is rotten. The tree is rotten from the roots up. It's rotten. I know there are good cops out there. However, after this is said and done, what's going to change? What's really going to change? Do you know what it's like to come home from spring break in a car and getting pulled over by cops with guns to your face? I'm pretty sure you don't. Do you know what it is like playing basketball as a, as a middle school kid, eleven, ten years old with cops coming to the games, say, “hey, guys, we need two or three more of you guys. We'll pay you five dollars to get in a lineup,”? You know what it’s like to have a nice car, getting pulled over for no reason? And then when I question why I’m getting pulled over, they said I didn’t have my seatbelt on? But I put my seat belt on -- the number one thing that a black man knows to do when he starts a car is to put your seat belt on, so that police officers don't mess with you.
NAT SOUND- PROTESTS

LUIS ACOSTA
[00:02:17] I have an eleven year old son and an eighteen year old daughter, and I've been growing up in this neighborhood since I was born. And I've been a victim of police brutality when I was 16 years old. And right now, I'm out here to support everybody and to let them know we have to change this because I don't want my kids to go through the same thing I did. I work hard to be where I’m at right now to have my kids going through the same thing I did.

NAT SOUND- PROTESTS

MOLLY
[00:02:49] Thanks so much to the protesters for sharing their stories. Next, I spoke with Paige to learn more about how we can apply the experiences we just heard to policy reform.

Paige, we are going to dive into policing from its roots to its stems. But first, as we just heard from the protesters, tensions are so high. I just wanted to ask how you’re doing? You know, you've been doing this work for two years at the ACLU. You’re front and center right now. How are you taking this all in?

PAIGE FERNANDEZ
[00:03:16] It's funny that you ask, because I was up at 3:00 a.m. talking to a colleague of ours and just saying that I actually feel like I haven’t processed anything. It's felt like everything's moving so rapidly over the past week that, you know, I haven't been able to take a second to sit down. And quite frankly, I feel a lot of anger is like pretty much the only emotion that I can access right now. I mean, it’s a hard, it’s, it was a loaded question when it was just COVID-19 that was the focus of the world. But particularly in this climate where we're seeing so many egregious uses of force, people are being murdered at the hands of police. Protesters are being arrested for nonsense. It's a really difficult, challenging time.

MOLLY
[00:04:07] Does it feel, like, odd to see this all come to fruition, things that you know have been sort of bubbling for a very, very long time? I think for some people, it's like a new thing. But for you, you've been sort of watching this evolution and sort of seeing the pot boil.

PAIGE
[00:04:23] Yeah. You know, I was on a call yesterday with Jeff Robinson, who's one of our deputy legal directors, and he said, “you know, Paige, I remember sitting around tables for the past two years when you were like, ‘guys, we need to have a plan ready because somebody is going to get killed by the police.’”

So I'm not surprised, but I am sad that it took the murder of George Floyd to raise this to national attention. But I am glad that people are recognizing what an insidious and pervasive problem police violence and policing in general is across the country.

MOLLY
[00:05:03] And let's sort of like lay the groundwork for our audience: How did we get to this legacy? Where did policing even come from?

PAIGE
[00:05:12] Yeah, so it's interesting, there's a lot of different anecdotes around policing and where it developed, but actually our first modern day organized city policing in America emerged in Charleston, South Carolina. But it emerged as a slave patrol. It was quite literally a professional force of white free people who came together to maintain social control of black, enslaved people living inside the city of Charleston. And they came together for the sole purpose of ensuring that enslaved black people did not organize and revolt and push back on slavery. And that is the actual first inception, the first example of modern police department in the United States.

MOLLY
[00:06:03] Wow. Can you just explicitly draw the line from that really early beginning to what we're seeing now?

PAIGE
[00:06:11] Absolutely. So, you know, I think it started as slave patrols, right. And I think it's really important that we name that; that police departments were developed out of slave patrols, out of the sole purpose of maintaining control over black people. And from there, you know, you see police develop as a tool to implement Jim Crow era rules and laws, right. Segregation. I think, you know, there is a similarity between what we're witnessing now and what happened in the civil rights movement where there was intense violence that was instigated on behalf of the police. The police started the violence during many peaceful protests during the civil rights movement.

And we're seeing the same thing happen again right, where we have peaceful protests on the streets in 2020. But unfortunately, the police are responding with violence, with tear gas, with rubber bullets, charging at people. So from you know, we have it from slavery, to Jim Crow, with police being tasked with enforcing segregation laws and other laws that were meant to oppress black people and again, maintain social control. And then we kind of see, you know, this uptick in policing and in the rhetoric on law and order and on crime in the 1960s, when President Lyndon B. Johnson declared a war on crime. During LBJ’s administration, you know, he was able to pass a law through Congress and signed it into law in 1968, which was the Omnibus Crime Control and Safe Streets Act, which created a new agency within the DOJ, the Department of Justice, tasked with funding state and local law enforcement with hundreds of millions of dollars. And so based off of this commission, what we're facing now with this like really targeted focus on black and brown communities, on surveillance and on control was kind of, was elevated to this level.

MOLLY
[00:08:21] I just want to pause there for a minute and focus on the funding piece a little bit because it seems like the words funding and safety have been linked since Lyndon B. Johnson all the way through presidents to present day. How do we sort of decouple that? How do we think about funding and safety in the context of police?

PAIGE
[00:08:39] Yeah. You know, and I'm glad that you mention that, because I think it really is important for people to understand that up until the 60s, 70s, 80s, 90s, you know, we didn’t funnel that much money into our local police departments from the federal government. But with the passage of laws under both Democratic and Republican administrations, there was billions of dollars in res-- like billions of straight up dollars -- but also resources, including militarized weapons, flooding to local and state law enforcement agencies. And unfortunately, the heavy focus of the 80s, 90s and early 2000s was kind of this tough on crime narrative that we really need law enforcement to curb crime, to enforce public safety, to make sure our communities are safe and healthy. Which is fundamentally misguided. Right now, we spend over about a hundred billion dollars on law enforcement, on policing, specifically on the state and local levels. We've criminalized so much behavior that does not need to be criminalized and that results in people being funneled into our criminal legal system, into our juvenile justice system, into our criminal justice system. And we see this playing out across the country where there is this heavy focus on ‘we need law enforcement to keep us safe.’ But that's not true. And I want to loop it back to Lyndon B. Johnson's Crime Commission. They pinpointed the sources of crime as being a result of a lack of anti-poverty programs, a lack of job opportunities, a lack of education. But unfortunately, while we all kind of know this and this has been exhibited through studies, quantitative and qualitative over the years, we've refused to reconcile with that and instead have continued to rely on law enforcement to solve all of society's problems.

MOLLY
[00:10:41] Now, let, let's stay on the funding for a little bit, because I think that there, in addition to the coupling of funding and safety, is also the fear factor that gets sort of interwoven into all discussions of police reform and next steps. First off, like how does funding we've given police compared to funding to schools and other things, has the investment paid off at all? I mean, it seems like the answer is no.

PAIGE
[00:11:07] I'm so glad that you raised that point, because funding on punitive programs in the criminal legal system -- particularly in communities that have been historically overpoliced, meaning communities of color and low income communities, particularly black communities -- has drastically outpaced expenditures on community based services and resources like education, health, housing and health care. I will just raise the fact that Campaign Zero is an incredible organization that did an analysis of every police department in California and how much money is spent in the municipal budget on policing versus housing. And those numbers are striking. I mean, we spend billions of dollars in cities across the country on law enforcement, while we only spend maybe ten or a hundred million dollars on education, on housing, on health care. How I would frame this is that we are so heavily focused on the back end of when things go wrong, how do we respond? And that's why we funnel so much money into law enforcement instead of thinking, how do we stop this from the beginning? How do we invest in our communities so people don't have to rely on behaviors and actions that have been criminalized by the government?

MOLLY
[00:12:27] The ACLU just signed onto a letter led by the Movement for Black Lives around police divestment. This is kind of a new announcement. Can you tell us what divestment is? Divestment, reinvestment. Like, what does that mean? Why is it a good idea?

PAIGE
[00:12:44] This is a huge moment for the ACLU. It's a huge moment for the movement. Over the one hundred years the ACLU has been an organization, you know, we have participated in police reform efforts and campaigns across the country. But I think what we have recognized is that the reforms we were fighting for, for transparency, for accountability, quite frankly, are not enough. And so, you know, over the past two years, myself and Carl Takei, who's our senior staff attorney on police practices, have been traveling across the country meeting with impacted community members, grassroots organizations and our wonderful ACLU affiliates in every state and talking to them about, you know, what does the ACLU’s vision on policing need to be? It has just become abundantly clear to us that in order for any change to be seen in our policing institutions, in our policing systems, that we must reduce the role, presence and responsibilities of police. It is absolutely imperative. And so I think as an institution, we are getting to that point. And one of the most impactful ways we can reduce the role, presence and responsibilities of police is by divesting from them and reinvesting those savings in community based services and resources, which is what Movement for Black Lives and a bunch of other black-led organizations as well as the ACLU are calling for right now.

So by divesting from police, by limiting the role of police in communities of color, we're able to redirect the funds, which are, as I said, you know, extraordinary. We spend a lot of money on law enforcement. We're able to redirect all of that money to other services that allows for us to end decades of racially driven social control and oppression, as well as address quality of life problems and social problems at their root in ways that strengthen impacted communities instead of terrorizing them.

MOLLY
[00:15:00] And if we are thinking about divesting, obviously, if an organization has less money, then they have less reach. And so I think what's implied there is that part of what the police do is not necessary. What actions, what things are we saying ‘you could be doing less of, and we would still be so safe,’ it would be okay to pull these things back?

PAIGE
[00:15:24], I think about, you know, what drives street level harassment by police and that we need to really end that street level harassment and the enforcement of offenses-- of offenses that drive it. And so these are, you know, incredibly nonserious offenses. I think it's really important to note that, you know, the FBI has said that there are, you know, only five percent of crimes for which people are arrested for every year constitute what the FBI considers as the most serious crimes. So 95 percent of arrests that take place each year, which is about 10 million arrests, are for a range of nonserious offenses. So offenses like, you know, drug possession and distribution. Thinking about the criminalization of sex work. Thinking about driving offenses, including driving without proof of insurance, driving a vehicle with an expired sticker. These are minor criminal laws and civil infractions, and I think something that's important to point out here is that the enforcement of these minor offenses not only leads to the criminalization of black and brown communities across this nation, but also can lead to death and murder.

And that is what we've seen in cases like Eric Garner, in cases like George Floyd, who was targeted for such a minor offense that turned out to not even hold up. He was targeted for forgery and he was murdered by the police for that. So if we really cut, you know, these 95 percent of arrests that happen every year for just such low level offenses, we can really stop criminalizing the black community and also save lives.

MOLLY
[00:17:18] And I just want to be really explicit. I've been to a bunch of protests. And one of the chants is “defund the police.” Is defunding the police and divestment, the same thing, or are they different?

PAIGE
[00:17:29] They are the same thing. They're very similar. They're just different words.

MOLLY
[00:17:35] One of the just heartbreaking and wrenching parts about what we're experiencing now is that this is not the first time, it feels like we're on repeat. Some, like horror show repeat of things that we see annually and more. This is when it gets reported and because it was videotaped. How do we actually make these reforms happen? Like how do we stop this cycle?

PAIGE
[00:18:00] So I think there are two points I want to make. The first is that I would acknowledge how far I think the movement has come. Right, I think there are a lot of activists and advocates five years ago, six years ago, who were calling -- and I can include myself in this, right, like I have evolved a lot since then -- who were calling for things like body cameras who were really heavily emphasizing community oversight -- which I still support but don't think is the solution. So other minor reforms, right, that we really were emphasizing that were really based in truly reforming police departments instead of kind of thinking more on a systemic level, which is where I think we are now. And so I want to acknowledge that I think we've come so far in the past five, six years. And then, you know, we're at this point where change can be actualized now, I think we have to think strategically about how we do this. I think the best way for us to divest is on the local level, passing bills through city councils, getting them signed by mayors that are divesting from local police departments and reinvesting in local services and resources. We can also do this on the state level. We can pass appropriations and budgets bills, which are passed every year, and divest money that goes into police departments. There are all these federal laws that have been enacted that funnel millions, billions of dollars and resources into police departments across the country. And we can also divest from them. So I'm thinking specifically about the Ten Thirty Three Militarization program, which provides leftover military supplies to municipal police departments. We can divest from that. We can divest from the cops office and the DOJ that provides funds for municipal police departments to put school resource officers, otherwise known as police officers, in schools.

MOLLY
[00:20:00] And do we have any case studies? Are there areas that have already done some of this stuff?

PAIGE
[00:20:07] We do have so many studies that show what's effective in reducing what has been deemed criminal activity, right. Like, jobs are so effective. Job opportunities are so impactful in allowing people to not engage in the types of behaviors that have been criminalized by the government. But there are instances, I think specific instances of when we have divested or we have invested in other services. So, for example, I'm thinking of Eugene, Oregon, where they developed a mobile crisis service composed of well-trained individuals and professionals, including psychiatrist, nurses, doctors who respond when somebody is having a mental health crisis instead of the police, because we know that people who are in mental health crises are overwhelmingly killed by police when they come into contact with them. There are plenty of schools who have incredible principals who have made the decision; I am thinking specifically in Philadelphia there's a school called Kensington Kappa, Kensington Creative and Performing Arts High School where the principal made the decision to, instead of investing in police officers in the school, to really focus on a restorative justice program with teachers, parents and students that significantly reduced suspension, detention and arrest rates in that school.

MOLLY
[00:21:37] Mm hmm. That's really interesting. And I think the thing that is really important to hold on to is that when incidents escalate it perpetuates more and more violence. So that when you think about taking out some of the incidents where it all sparks, like when there's a mental health issue, rather than coming at it from, you know, a criminality perspective, just keeping it in a totally different sphere would just make as a starting point so much sense. One thing I wanted to pivot to is at the same time that we're talking about these huge systemic shifts, it seems like accountability around policing is another sphere that needs to be addressed. Why is it so difficult to hold police accountable?

PAIGE
[00:22:24] There are so many layers built into protecting police. Police, despite being tasked with enforcing the law, are treated as though they are above the law. And that special treatment is literally written into state statutes, into local policies, in the police department policies and into police union contracts.

So in most places across the country, officers can legally use deadly force and kill someone even when the force is not necessary and when they have other alternatives available to them. So officers often can use force as long as an objective officer could consider it reasonable. And that's the first thing to consider, is that we have such a low use of force standard for officers across the country, which makes it incredibly difficult to hold them accountable because in many places they literally aren't breaking the law because they are held to such a low, low standard.

The other thing I want to lift up is police unions. Police unions are an enemy, quite frankly, to systemic reform and to holding police accountable. Police union contracts across the country are harmful and only serve to protect the officers and not the communities they purport to serve. And I say this because, you know, the provisions that are written into these contracts are, quite frankly, astounding. There were provisions written into contracts that say you can't talk to a police officer who's engaged in use of force for 48 hours after the incident. There are contracts that allow officers who are a part of an investigation to review information that other people who are part of the investigation can't other civilians cannot have access to.

MOLLY
[00:24:28] Oh my god.

PAIGE
[00:24:29] For example, they might be able to view video of the incident and be able to, you know, come up with their story and say that story because they have access to that video. But the civilian doesn't.

MOLLY
[00:24:45] And what about immunity? Like, even when it's very clear that there was a violation, what kind of immunity do police have that is sort of above and beyond?

PAIGE
[00:24:55] Another reason that police are really never held accountable I think it's important to state based on information from Campaign Zero: Ninety nine percent percent of police who engage in lethal uses of force have not been held accountable, have not been charged with crimes. And one of those reasons is qualified immunity. They cannot be charged with their actions if that specific action that they've taken hasn't happened before by another officer. And so this is an incredibly complicated idea but it allows for officers to get off the hook for a range of excessive uses of force, for unnecessary uses of force just because another officer hasn't engaged. Right. And so I think one example that I've heard of is there was somebody who had been shot by an officer, but the officer was not held accountable because the officer was aiming for a dog and accidentally shot a person. And there had not been an officer in the past who had shot at a dog and ended up hitting a person. And so for that reason, because it had not happened before, this officer was allowed to get off the hook and he was not held accountable for his actions, which are incredibly egregious. And, you know, this is a standard that we are trying to challenge in the Supreme Court and also something that a ton of elected officials actually on the federal level have introduced bills on over the last week or so.

MOLLY
[00:26:34] Another component here is public records, access to them. And you touched on that a little bit. But, you know, I'm aware of in York City, we have 50-a. Do other municipalities have something similar? And also what is 50-a?

PAIGE
[00:26:50] 50-a is a statute in place in New York City that shields police personnel records from public view. And this is incredibly harmful, right. First, it really speaks to a lack of transparency in police departments. And this is not unique to New York City. We see very similar laws across municipalities in this country. And it's not only a problem for transparency, but it also allows officers who have done significant harm, who've engaged in inappropriate behavior, who have used unnecessary force to move on in their career and to never be held accountable for their actions. And so I just wanted to bring it back to police union contracts for a second, because in contracts there's actually some contracts across the country that allow for officers records to be completely erased, their misconduct records to be completely erased. And even when in places where they're not completely erased, there are things like 50-a which doesn't allow people to access them. Which doesn't even allow potential employers to access them. And this is exactly what happened in the case of Tamir Rice's killer. He was an officer who had history of misconduct at former police departments.

But the police chief at the department he ended up at wasn't able to access those records, had no idea of his former misconduct. And then he murdered Tamir Rice.

MOLLY
[00:28:29] You know, as we talk about the big changes that need to happen on sort of a government level, I'm curious about if you're just a person, you're just a person you don't work in this space: How do you take part in what's going on here? How do you take part in making some of this change?

PAIGE
[00:28:47] So I think the first thing is education, right. And I think there's a huge role for white allies in this. Black people are tired. Quite frankly, they're exhausted. We're scared. We're angry. And so I think there's a huge role for w9hite allies and other allies to play in this, in educating and talking to people about why, you know, this isn't just an incident of a bad apple. I think that many people might be a little bit put off when you say we want to take money away from police departments. So I think educating people around why it's important, why it makes sense, showing people the numbers. The other part is making your voice heard, getting out there. I love that so many people are protesting. I do just have to make a plug that we're still in the middle of a pandemic. So people, please be safe. We need you in the struggle, right. But getting out there and making your voice heard. I think also people underestimate the amount of power they have with their government officials, especially at their local officials. So contact your city council member, contact your mayor, talk to your D.A. Talk about the reforms you want to see.Go to public hearings and testify. So I think those are three key things: education, making your voice heard and getting involved in the political state of your city.

MOLLY
[00:30:09] And do you think that's where the hope is right now, that more people are being added to the movement as a result of witnessing some of what we've witnessed?

PAIGE
[00:30:17] Absolutely. And, you know, I am so sad that it took us to get to this moment. I am so sad that it took George Floyd being murdered on video for people to go out and for many people who haven't been in the movement to become energized and to speak out. But I think this is a pivotal moment in history.

I can say that my dad was a Black Panther during the civil rights movement, and he called me last night that “you are going through what I experienced 70 years ago.” Right, this is a historic moment. And I am so sad that we haven't come very far in 70 years. I'm so sad my dad had to tell me that. But I think this is a serious moment for serious and impactful change. And I think we need to seize this moment.

MOLLY
[00:31:07] Mm hmm. On that note, Paige, thank you so much for talking to us. I know how busy you are right now. Or actually, I have -- I can't even imagine how busy you are. So thank you so much for making the time. It was a pleasure. I learned so much.

PAIGE
[00:31:20] Well, thank you for having me. And as always, it's a pleasure talking to you, Molly.

MOLLY
[00:31:24] Thank you, Paige. Keep up the fight. You’re doing such good work.

NAT SOUND- PROTESTORS

REBECCA
[00:31:32] What kind of change do you want to see?

PROTESTER
[00:31:34] I want to see just straight police reform. I need accountability on all officers, you know what I mean? I need good cops to point out the bad cops and I need the President of the United States to start being about the people and not about, you know, whatever he’s about, he’s about so many different negative things.

Definitely. I feel so hopeful. My first protest was yesterday, I’ve never been to a protest before, and I fell in love. I love seeing all different cultures standing with us, it’s a beautiful thing. You know, I think it’s very empowering. I hope we-- I think something good comes out of all of this.

MUSIC

MOLLY:
[00:32:09] Thanks so much for listening. If you enjoyed this conversation and want to support our work to reform policing, you can donate at www.aclu.org/liberty.

Until next time, stay strong.