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All content by Kyle E. Mitchell, who is not your lawyer.

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Facing the Choirreading and hearing American police unions

If any single recent event got me started diving in deep on the Oakland Police Department, it was the local police unions’ joint statement on the death of George Floyd. I’ll reproduce it verbatim here. Read past the start, to the statement I’ve highlighted:

What we saw on that video was inconsistent and contrary to everything we have been taught, not just as an academy recruit or a police officer, but as human beings. Reverence for life in every incident a police officer encounters must be the floor and not the ceiling. We cannot see any law enforcement or self-defense rationale for what occurred. We are equally disturbed by not seeing any of the other officers on scene intervene to prevent this tragedy. What’s depicted in that video is not who we are as law enforcement professionals. We actively train and seek training, to safely manage similar situations we encounter to ensure safe resolutions. On the very same day of Mr. Floyd’s death, there were literally millions of encounters and interactions with public safety professionals throughout our country that were peaceful, respectful, and problem-solving oriented. We will not let the failures shown in this incident tarnish the hard work and sacrifice of those officers who get it right on a daily basis. Our deepest sympathies go out to Mr. Floyd’s family, their pain and grief must be unbearable.

Rarely does such aggressive delusion express itself in public print. As nearly everyone knows, it’s fundamentally not up to police or their unions whether a heinous act by a fellow cop tarnishes their collective professional reputation. It did, it has, and it will.

Oakland cops might know this better than most. Their reputations with citizens and city government alike are marred by generations of their predecessors, not to mention the continued service of officers with highly violent, problematic track records today.

Literally a continent away, cue Mike O’Meara, president of the New York Association of Police Benevolent Associations:

I just want to talk you, the press, and I want to talk to the police officers.

Three hundred and seventy five million interactions with the public. Three hundred and seventy five million interactions. Overwhelmingly positive responses. Overwhelmingly positive responses.

But I read in the papers all week, we all read in the papers, that in the black community, mothers are worried about their children getting home from school without being killed by a cop. What world are we living in? That doesn’t happen. It does not happen.

I am not Derek Chauvin. They are not [pointing behind to crowd] him. He killed someone. We didn’t. We are restrained. And you know what, I’m saying this to all the cops here, because you know what? Everybody’s trying to shame us. The legislators, the press, everybody’s trying to shame us into being embarrassed about our profesion.

But you know what? [Pulls out badge.] This isn't stained by someone in Minneapolis. It's still got a shine on it. And so do theirs [pointing behind to crowd]. So do theirs.

Stop treating us like animals and thugs. And start treating us with some respect. That’s what we’re here today to say.

We’ve been left out of the conversation. We’ve been vilified. It’s disgusting. It’s disgusting. Trying to make us embarassed of our profession. Three hundred and seventy five million interactions. Overwhelmingly, overwhelmingly positive. Nobody talks about all the police officers that were killed in the last week in the United States of America, and there were a number of them.

We don’t condone Minneapolis. We roundly reject what he did as digusting. It’s disgusting. It’s not what we do. It’s not what police officers do.

Our legislators abandoned us. The press is vilifying us. Well, you know what, guys [turns to face crowd behind]? I’m proud to be a cop, and I’m going to continue to be proud to be a cop until the day I retire. And that’s all I have to say.

Set aside the common talking points, the single, identical rhetorical arc. I’m struck by how the way O’Meara delivered his words made physically explicit what was only strongly implied in the Bay Area statement. He repeatedly turned to address the throng of police behind him, rather than the camera in front of him. At times, the mic barely caught his voice.

These are statements to the public, but not for the public. These are statements for cops by cop reps. Distributing them widely, by joint press release or in front of a camera, is merely a device for emphasis, the biggest way to double down on words.

Likewise the framing. The press release was a joint release of three police unions. O’Meara spoke at a union event as president of a union of unions. Strong statements, in coalition, to the broadest possible audience, first and foremost for internal consumption.

It will be nearly impossible for the men and organizations involved to back down, publicly or in any publicly accountable way. And that, I suspect, is half or more of the point. These are men who feel called to do and perform comic-book combat on behalf of their constituents. These are men who feel those constituents will understand and approve of total, intentional escalation, or balk at anything less.

It doesn’t take a professional negotiator to guess the impression this leaves on everyone who isn’t a cop. It’s painfully analogous to the preemptive, domineering, show-of-force tactics and equipment we see on the streets of our cities, night after night. Could you see a montage of O’Meara’s speech and clips of NYPD brutality? Of course you can. Here it is.

The community’s attention is being used to score insular points among police institutions. And those scoring the points evidently don’t care what’s felt or thought about it. They are willing to spend the sympathy, even the support of potential allies across the public, to bank within their tribe. It’s not just an antagonistic ploy, but a ploy that makes most sense if you assume insoluble antagonism to begin with. That you have nothing to gain from the broader audience, and therefore nothing to lose. Nothing more to lose.

The tactical play, when presented with that kind of posturing in repeat play, is well rehearsed. Having let the other side blow a lot of steam through its loudest whistle, work side channels and open a line for quieter conversation. Earnestly encourage them to use it, to show that they’ll either soften publicly or take a different tack privately, where their constituency isn’t hooting for rough play. This takes discipline. You cannot do this in combat posture, projecting escalation, and make peace. Avoiding combat posture and projecting escalation is damn near impossible with your blood on the boil, which is exactly what that loud whistle accomplishes. Those who manage frequently invoke higher powers.

If, for your inadequacy or theirs, they don’t take up your peace, the worldly maneuver is to make an eerie silence, make a plan, make a date, and, all at once, hit them as hard as you can. Pull every lever, invoke every superior authority. Expect resistance, break it, and drag them as far as you can. Show no mercy, and force every substantive and procedural concession that you can. After all, the next time you have to dance, you will expect them to take it to the brink again. You know they have it in them. So batch up your objectives, and take huge bites at a slow pace. Take cold comfort in the possibility that the pace will allow turnover, so as to avoid thoroughly brutalizing all involved.

Also beware. Every person and every significantly cohesive group is capable of doubling its way down to Hell. Facing that maneuver, and prevailing over it, bestows no immunity to its dark charm. Victors in these conflicts are often cursed to self-blindness, and frequently fall in the same trap as their adversary in the very next round. After all, victory lends those predisposed to brinkmanship on your own side a deeper thump to their chests, even if victory came by totally disparate means. I leave it to the reader whether or which lines reflect this perennial truth on the side across from police in our current debate.

Regardless, reflection is key. This has been about police. It could have been about my profession, too. Lawyers’ bar associations can and do make statements that would enrage non-lawyers if they ever happened to read them. Which is part of the reason I only belong to the one my state requires to practice law.

It’s my personal view that professions of public service, which can only stand on a foundation of popular legitimacy, shouldn’t incorporate interest groups. They should evidence no corporate interest separate from the public interest. In political terms, they must immunize themselves against the kind of grim show we’re seeing now, where public servants end up aligned against the general political process.

Of course, public servants can and often should bargain collectively, as police here in Oakland do so well. Junior officers take home well more than I do. And professions might also build structures that make their expertise accessible in institutional form to other institutions. But a united front much broader than that only manifests in plain form the kind of conspiracy the watchful laity forever suspects.

We see this not just in our professions, but in our politics more broadly. In any number of dimensions, social, economic, and cultural, it is becoming hard to separate tactical brinkmanship from earnest bids to subjugate or outright vanquish opposition long term, as if that were possible. It is becoming harder to distinguish naive strategy, the bid-low, ask-high rah-rah of brutish paperback negotiation books that sell lots of copies and tank lots of deals, from true believers in political Ragnarök.

It’s easy to put together a historical case for the feasibility of total victory. The most painful currently on display remains, unsurprisingly, the plight of black Americans. But it’s equally easy to show that as popular sovereignty—“democracy” in modern conception—has broadened and deepened, total, lasting, bountiful domination has gotten harder to swing.

The plight of black Americans, despite generations of discouragement and abuse, is, I dearly hope, about to advance again, and in a momentous way. I firmly believe that no measure—not even the constitutional enshrinement of slavery in a hypothetically survived Confederacy—would have ended black American resistance, full stop. Inherent docility of blacks was a lie. As is the sheep-nature of liberals, the knuckle-dragging of conservatives, or the disunity of Americans more broadly, when faced with a common threat. It’s merely convenient to see opponents that way, up to the point where you actually have to face them, and find it difficult to fight your opponents and the lie you’ve told yourself about them at the same time.

In the end, dispositionally, democratically, and just practically, I doubt that any meaningfully cohesive group of Americans can be conquered as absolutist fantasy tends to suggest. Not by intellectual rout. Not by moral superiority. Not by cultural domination. Not by force of arms. Conservatives, or the Republican party, will not and cannot vanquish liberals or Democrats, in substance or by process. Nor will Democratic liberals reign supreme and unchallenged by force of reason or artful maneuvering.

As a direct consequence, neither is any such group immune to change. The dominant, white culture of this country can no more vanquish blackness than it can avoid becoming blacker itself. Policing in this country is about to change, to be changed, and it will change this country in turn. I hope for the better, despite the inevitable blood, ash, and hot air still to come.

It’s an adversarial process. It’s what we do.

Your thoughts and feedback are always welcome by e-mail.

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