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Bad Apples

September 26, 2015

In the course of investigating a credit card fraud ring, New York City Police Officer James Frascatore came across retired tennis star James Blake standing quietly outside his hotel. Mr. Blake bore a reasonable resemblance to a suspect in the case, so Officer Frascatore approached him and arrested him, then determined that Blake was not the suspect sought and released him.

Good police work? Hardly.

Frascatore’s arrest of Blake, which was recorded by surveillance video, was accomplished by flying tackle.

Consistent with the video, Blake maintains that the officer did not announce himself, and did not say that he was arresting Blake – he bodily forced Blake to the ground and handcuffed him. Blake offered utterly no visible resistance, which, under the circumstances, is by itself quite remarkable.

In handcuffs, Blake was led off-screen to a group of officers. He says that his pockets were checked and his credit cards examined, leading Blake to worry that he was the victim of an identity theft scam. Officers maintained that Blake was in handcuffs for less than a minute; Blake says it was more like 10 or 15 minutes. Apparently a retired cop recognized Blake, verifying his identity and leading to his release.

Neither Officer Frascatore nor any of the other officers present filed the reports that are required by NYPD procedure when an arrest is made and then voided. And make no mistake – placing a citizen in handcuffs, however briefly, is an arrest. Absent the required reports, Police Commissioner William Bratton learned of the incident from news reports initiated by Mr. Blake.

The video quickly came to public light, and Commissioner Bratton apologized to Mr. Blake, as did Mayor Bill de Blasio. Both agreed to meet with Mr. Blake to hear out his demand that Officer Frascatore be fired as unsuitable to police work, and his ideas for police reform, such as expansion of the use of body cameras by officers. Mayor de Blasio described Mr. Blake’s handling of the incident as “selfless.”

Mr. Blake himself, while calling for Officer Frascatore’s job, has been careful to praise the good work of the vast majority of police officers: “I do think most cops are doing a great job keeping us safe, but when you police with reckless abandon, you need to be held accountable.”

This is a variation on what I call the Few Bad Apples line of police critique. It has become mandatory for liberals to adopt the Few Bad Apples line, enabling them to criticize police practices without taking the politically unpopular position of condemning police officers generally. The notion is that police officers are in the main honest and diligent public servants who work hard to apply the law fairly and without bias, but that in any group there are a few outliers, and that if we can root out those few problem cases, all will be well.

My problem with this line is that it is a total fiction.

The fabric of the Blake case contains the thread of the fuller story – the seven officers who witnessed Officer Frascatore’s unaccountably violent arrest of a man he suspected of a non-violent crime joined Officer Frascatore in failing to perform their duty to report the incident.

For many years, I served as a judge of an administrative tribunal that adjudicated charges of police officer misconduct. What I learned from that experience is that, while police officers will vary in their propensity to certain kinds of misconduct, officers vary virtually not at all in their willingness to cover up the misconduct of their fellow officers. In scores of trials of charges of police misconduct, I never saw even one instance of a police officer testifying to misconduct by a fellow officer.

Most commonly, where an officer was charged with improper or excessive use of force, the officer and his colleagues would simply deny that force had occurred. In one case, for example, a woman said that an officer had punched her in the mouth, and the prosecutor presented a photograph of her swollen face. When a colleague of the accused testified, the prosecutor showed him the photograph and asked him if it showed any injury – the witness replied that the photograph just showed that the woman had “a big set of lips.”

New York police officers usually work in pairs, so most incidents with an officer will have at least one NYPD witness. In a remarkable number of use-of-force cases, the partner of the accused just happened to be distracted at the critical moment. The partner would testify about what happened right up to the critical second, then would contend that some noise or motion elsewhere on the scene caused the witness to “avert my eyes,” depriving the partner of the ability to enlighten the proceedings further.

After many years and many cases, I came to the realization that police officers widely believe that civilians will never understand the need for them to use force in certain circumstances; therefore, they conclude, it is better to deny that force occurred than to admit it and explain why it may have been justified. I tried a number of cases in which it was clear to me that force would have been justified – by an arrestee’s resistance, for instance – but the officers insisted that force had not been used. This is a complex failure, one for which civic and political leaders, and judges and juries, must accept a share of blame.

This failure is even more obvious in the area of searches for evidence. The Supreme Court has insisted on developing a Fourth Amendment jurisprudence that is almost devoid of clear, bright, black-and-white rules. Instead, the legality of a search typically depends heavily on its specific factual circumstances. It has often been observed that these Fourth Amendment questions are deeply divisive and difficult – the justices themselves decide cases only after two levels of federal adjudication, with the benefit of briefing by the country’s ablest lawyers, aided by batteries of Ivy League law clerks, and after weeks and sometimes months of deliberation – and still the justices often decides these questions by a single vote. Yet police officers are expected to decide the same questions on the street, in situations that demand nearly instantaneous reaction, where a wrong decision can pose a serious risk of injury or worse to the officer.

The professor who taught my criminal law course said that the Court’s Fourth Amendment decisions don’t teach officers how to act, they teach them how to testify. Officers have no confidence that the judicial or civilian world will genuinely understand the world of street-level law enforcement, so they give accounts of events that are fictionalized to accommodate what they perceive to be the requirements of judicial and civilian norms.

The culture of covering up one’s own and one’s fellow officers’ wrong-doing is so well established that it has a term: testilying. Testilying is a routine re-arrangement of facts under oath. The re-arrangement of facts in any given case does not require a specific conspiracy – it is not necessary for officers to get together and decide on a cover story. Testilying reflects that officers know without having to ask what they are expected to say. The practice so wide spread that it has a Wikipedia entry. The practice has been around for decades, if not centuries, but the scope of the practice has only become clear to the larger world in the modern age of nearly pervasive surveillance and cell phone video.

There was once a police officer who tried to change police culture, and who testified to the pervasive wrong-doing that culture fostered. Frank Serpico paid for that effort almost with his life, and spent ten years in exile in Switzerland and the Netherlands to escape further danger.

It is hard to argue with James Blake’s position that Officer Frascatore should be fired. It appears that Frascatore is too aggressive, too quick to resort to force, to serve as a police officer vested with the legal authority to use force against civilians. But firing Officer Frascatore will not begin to address the problems of policing. As long as police officers hold a higher loyalty to each other than to the law they are sworn to enforce and to the civilians they are sworn to protect, other officers inclined like Officer Frascatore will find safe refuge in police departments across the country.


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