David Remnick: This is the New Yorker Radio Hour. I'm David Remnick, and we're talking today about Black Lives Matter, which was first used as a hashtag in 2013, 10 years ago. Now, I've never had the experience of being followed by security in a store. I've never been stopped and frisked, wrongly accused, or manhandled by the police, but millions of people, principally Black Americans report that this kind of treatment happens to them all the time. Where earlier civil rights struggles centered on voting rights or discrimination in schooling, Black Lives Matter focused above all on policing, on excessive stops, on use of force and violence, all directed at Black and Brown people.

Black Lives Matter popularized the slogan, defund the police, which quickly became a matter of controversy. To try to gauge the impact of Black Lives Matter over the past decade, we're joined by Kai Wright who's the host of WNYC's Notes from America.

Kai Wright: 10 years into the movement that emerged following Trayvon Martin's horrific killing, there's a simple question you could ask. Has there been any measurable change in addressing police violence and abuse? The answer is not simple. There have been many, many efforts at fixing this problem but we're going to dig into three specific areas of reform, transparency, accountability, and just tracking the problem. We gathered three experts who come at these challenges from slightly different angles. Anya Bidwell is an attorney for the Institute for Justice, Mike White is a professor of criminology at Arizona State University, and Samuel Sinyangwe is the founder of Mapping Police Violence and Police Scorecard.

Samuel was in his 20s working at a nonprofit that focused on economic and social equality when Trayvon Martin was killed, and he was used to having access to all kinds of data in his work. After Mike Brown was killed a little later, Samuel decided, "I want to create a national database that tracks the number of police fatalities." When he got started, he found very little to work with. I asked him, why was the data so bad.

Samuel Sinyangwe: The data was so bad because the federal government was relying on a program where you had 18,000 different law enforcement agencies across the country. It was a voluntary program whereby the federal government was asking each of those 18,000 agencies to report what homicides took place and whether those were what they call justifiable homicides, which is their word for a homicide committed by the state or a homicide committed by an individual who understand your ground laws or other cases was deemed justifiable. An article from 538 came out in the early weeks following the death of Mike Brown that it basically tore apart that methodology.

There were websites like killedbypolice.net at the time. There was a volunteer individual who wasn't being paid for this who would just search for keywords like killing by police, police-involved killing, officer-involved shooting. What that 538 article did was they looked at that list, that killedbypolice.net, and they found that there were nearly three times as many cases on that list as what the federal government was reporting.

Announcer 1: Hundreds of homicides by law enforcement agencies between 2007 and 2012 aren't included in records kept by the Federal Bureau of Investigation. It's the findings of a--

Samuel Sinyangwe: The issue was that the work hadn't been done to really analyze that data. Many of the cases hadn't been coded by race. There was no information about the circumstances of those cases, whether the folks were armed or unarmed, what police department was responsible, what patterns were in the data that could help point to potential solutions. A lot of the work to just basically understand and address the most fundamental questions that an emerging mass movement was demanding, the fundamental question of how many people have been killed by police, whether things are getting better or worse, and what we can learn from the data in terms of solutions to ultimately reduce police violence.

Kai Wright: Samuel, in as much of a nutshell, you're a data scientist, I don't want to make you be reductive about your data, but work with me. In a nutshell, what have you found?

Samuel Sinyangwe: Over the past 10 years, say, from 2013 through the present, what we can say is that police kill about 1,200 people every single year. That didn't start when the national conversation became focused on police violence. It's something that has happened at a remarkably regular and constant pace, about 1,050 and 1,250 people.

Kai Wright: This is a remarkable number.

Samuel Sinyangwe: Absolutely. It's about more than three people every single day. What we also know when we unpack the data is how deeply systemic this issue is. We have a system of 18,000 different law enforcement agencies, each with their own set of policies and practices, their own department culture. Some have more or less funding, more or fewer employees. That constellation of 18,000 agencies every single year kills a similar number of people. The patterns are remarkably similar year after year as well. Black people are about three times more likely to be killed than white people per population.

Latinos killed, between 1.5 and two times at a higher rate than white people per population. Native Americans are also killed a similar rate as Black people. Again, much higher than white people.

Kai Wright: Despite this centralized system, there is a repetitive outcome even though it's so dispersed across the system. I want to get Anya and Professor White into this part of the conversation, too. Anya, you were nodding fiercely as Samuel described the state of the data, how bad the data was and has been. What is the lived consequences of that? What does that mean for the work you do, not having information like that?

Anya Bidwell: Justice Brandeis once famously said that sunlight is the best of disinfectants. Transparency really is extremely important in those types of situations. I don't think it's surprising that in many controversial topics, we don't have good data. For example, Second Amendment and the use of guns, that's another area where it's very hard to actually find the data. For us as lawyers, it is much easier to file complaints, file class action lawsuits, have allegations in the complaint that are backed by data. That's a much stronger lawsuit that can take you much farther even though there still will be other doctrines that will talk about that will still make it difficult.

Kai Wright: Professor Mike, why is that the case? Why don't we have a centralized system for collecting data from the federal government?

Mike White: There is an effort now to create a national-level use of force database. The FBI is leading that effort. It started, I believe, in 2019. It is voluntary. One thing I think we do need to keep in mind is that each year, there are more than 50 million encounters between police officers and community members across the United States, more than 50 million. The vast majority, vast majority of those encounters begin and end peacefully. Not all of those police killings are excessive, inappropriate, unlawful uses of force. Some number of those police killings are justified.

Kai Wright: With that context in mind, Samuel, there's been a decade of activism and greater public conversation about this at minimum. There's been a decade of someone like yourself saying, "Well, let's track this." Is there anything that we can point to in your data that says, "Okay, well, this is getting better," or no?

Samuel Sinyangwe: As Michael said is something that policing is much broader than those 1,200 incidents. There are between 6 and 10 million arrests made every single year. We do see some important shifts in terms of overall police contact and enforcement over the past decade, particularly there's been a substantial reduction in arrests, particularly arrests for lower-level nonviolent offenses. This is important because when we consider 6 to 10 million arrests, that's a lot of people. If you have an arrest record that impacts your ability to get a job, it impacts your ability to get housing. It impacts a range of opportunities for you. It often results in incarceration, which has its own negative health effects.

Reductions in arrests overall, particularly for low-level offenses, have, across the country over the past decade, they were accelerated during the pandemic but have really been concentrated in some of the largest cities in the country.

President Biden: We should all agree the answer is not to defund the police-

Audience Member: That's right.

President Biden: -it's to fund the police.

[applause]

Samuel Sinyangwe: So much of that money is focused on stops and arrests and police activity and enforcement really targeted towards low-level nonviolent issues that are often associated with crimes of poverty, issues of mental health and substance use. Drug possession, loitering, or vagrancy, of trespassing, crimes associated with sex work, so prostitution, arrests, et cetera, have seen substantial declines across the country. The cities that have made the largest reductions in arrests, particularly for low-level offenses, have also seen some reductions in police shootings both fatal and non-fatal. Because there are fewer incidents that are often escalating.

Kai Wright: There's fewer opportunities to engage in the first place.

Samuel Sinyangwe: Exactly.

Kai Wright: Speaking of the number of arrests and just the volume of engagement with police departments, one of the things that has come up in the years since the Black Lives Matter movement became part of the political conversation is body cameras. It was supposed to be something that was, at least in the popular conversation, going to be, "Hey, this gives us eyes on the interaction of all those millions of interactions that are happening between cops and everyday people." Professor Mike, can we start with you, because you have studied this issue. What actually were body cameras supposed to do? What was the argument behind body cameras?

Mike White: Many departments simply did it as a show of transparency. I can't tell you how many press conferences I saw of Chiefs of Police announcing the start of a body-worn camera program and saying, "We're doing this because we've got nothing to hide."

Announcer 2: January 1st, 800 body cameras will be dispersed among officers.

Mike White: Simply, I don't want to be the next Ferguson. Then there was some early evidence that suggested if you deployed cameras, you would see reductions in use of force and complaints. There were a handful of studies that came out in 2013, '14, '15 that showed that. I think those were the primary drivers of the adoption.

Kai Wright: From all of those different vantage points of people who said, "Okay, this is a good idea for me." What have we learned?

Mike White: It depends on which outcome you're focused on. The studies on use of force are much more mixed. Again, about 30 studies and only half of those studies show a reduction in use of force after cameras are deployed. For me, the big takeaway is that you're not going to see one story with body-worn cameras being deployed in a department. There's too many other contextual factors that come into play. The big one being what's the state of a police department when they deploy cameras? That was the case in Ferguson. Within 30 days of Michael Brown's death, Ferguson police officers started wearing cameras.

You could also have a department that deploys cameras as part of just one more professional activity that that department does. The starting point of a police department is extraordinarily important. Is it a department in trouble, and this is why they're deploying cameras, or is the department professional? They're respectful in their contacts with community members. They hold their officers accountable. This is just one more thing they're doing to maintain that level of professionalism.

Kai Wright: To spell out what is the distinction there in terms of what happens then if it matters, which makes sense to me, it matters how they come into it. How do the outcomes vary based on whether they come into it?

Mike White: If a department is in trouble. For example, the Rialto Police Department in California was the first to not only deploy cameras but to rigorously study those cameras. They showed immediate significant reductions in use of force, but that department was in significant trouble. There was some discussion about whether that department was going to get shut down by the Rialto City Council, and you have a reformed chief come in who does a bunch of things, including deploying the cameras. Compare that to the Washington DC Metro Police Department. When they did their study, they didn't document any impact on use of force, but the DC Metro Police Department had been under consent decree for a decade before they deployed cameras.

The consent decree that was in place, the Federal Monitor, required significant organizational change and improvement over a period of 10 years. Not surprisingly, they don't see a big reduction in use of force, because I think all of the things that happened over the prior decade, that department was in a much better place organizationally when they deployed cameras versus a department like Rialto.

Anya Bidwell: I'll tell you from experience that even when you do have video footage, and if that video footage shows an officer behaving unreasonably, very often courts are still going to give qualified immunity to the officer. I have an example of a case in Arkansas where a police officer held at gunpoint 2 children, a 12-year-old and a 14-year-old.

Officer Marzolf: I've got two juvenile individuals, dark hoodies and pants.

Anya Bidwell: You could think, if there is no video footage, you could imagine that a 14-year-old might have looked threatening, and maybe older, and had a mature voice that it would've been reasonable for an officer to mistake him for an adult, but that video footage shows very clearly that these are children.

Officer Marzolf: Get on the ground. Put your hands out. Hands out.

Anya Bidwell: They're answering, they're complying with the police officer 100%. He's yelling at them, he's pointing a gun at them, he's forcing them on the ground, and still even with that footage, the constitutional lawsuit was dismissed because of qualified immunity.

Samuel Sinyangwe: There are many different circumstances and structures under which this program is being implemented in various cities. In most cases across the country, body cameras are a tool that allows law enforcement to collect video that they then get to decide what to do with. That alone, I think, is not sufficient to provide for the type of accountability that, I think, community members expect or demand. We've seen this, I think about Alton Sterling in Baton Rouge was killed by Baton Rouge Police Department, and it took years to actually reveal that there was hidden footage that the police department kept under wraps.

Finally, that footage came out years after family members were told that there was footage that exists, but weren't allowed to see it. Community members were kept in the dark about this footage. Finally, the footage came out that showed that prior to the cell phone footage that the country saw, the officers came up to him with the body camera footage showing that they pointed their gun at him, pointed it at his head, threatened to kill him, escalating the situation in a way that the cell phone footage alone didn't show--

Announcer 3: DC leaders are working to stop the crime crisis that's been plaguing our city for months.

Samuel Sinyangwe: In DC, just this week, they have been pushing legislation that would allow officers to review body camera footage before they write their statements about what happened in the incident.

Mike White: Samuel's comments are well taken. There are a couple of states that have passed laws that impose restrictions on the police. The state of California, for example, passed a law requiring that every police department in the state of California release footage of critical incidents, officer-involved shootings within 45 days. It's state law, you must. The Las Vegas Metropolitan Police Department, they released footage of officer-involved shootings within 72 hours of the incident. 72 hours they'll have a press conference, they show the raw footage. I think that's a tremendous show of transparency.

The other thing with the impact, think about the Tyre Nichols beating. Those officers were wearing body cameras and those cameras were activated. They were recording. How could that possibly happen? It happened because those officers had no concern that they were ever going to be asked about their behavior.

Kai Wright: Speaking of holding officers to account for their behavior, Anya, qualified immunity has come up a few times. This is a federal doctrine that is established via Supreme Court rulings at this point, and it gives government officials, including cops, a lot of protection from being sued for doing their job. That's the idea. For police, it's in part to allow them to make these split-second decisions. As long as they can prove that the decision they made was reasonable based on precedent, that means they're safe, right?

Anya Bidwell: In cases where you have camera footage, very often it still makes no difference because qualified immunity very much focuses on what would have an objectively reasonable officer done, not what would have this very particular officer done.

Kai Wright: Let's talk about it on two levels. One, this is a thing that is a consequence of loss. First off, if it would have to change, this would have to be, Congress would need to pass a law saying we get rid of quantified immunity.

Anya Bidwell: Or the Supreme Court can overturn its 1982 decision and say, "Qualified immunity doesn't apply," or it is like you said, Congress could do it tomorrow if it wanted. [laughs]

Kai Wright: In today's world, we are more likely looking at Congress would have to pass a law that says we want to get rid of qualified immunity. Absent that, absent a new law either from Congress or from the Supreme Court, what does that then mean in court for you and in particular if there's been a change in the past 10 years for how to get accountability despite the existence of qualified immunity?

Anya Bidwell: One option that private lawyers, civil rights lawyers, any lawyers have also is to go to state courts and sue under state laws. That's why Colorado, for example, after the murder of George Floyd passed its statutes saying that you can sue police officers for excessive force, and qualified immunity will not be an obstacle. New Mexico was another state that passed a similar statute. In New Mexico, though, they said, you sue police officer, but it is the municipality as the employer of the police officer that will be held liable, incentivizing municipalities and police departments to hire and train better.

Kai Wright: Anya, when we talk about the way conservatives think about this topic, there are more than one set of views here also. The Institute of Justice was funded in part by one of the Koch brothers, Charles Koch. How do you see the different layers of understanding of this and feeling about criminal justice reform amongst conservatives?

Anya Bidwell: Let's start with Justice Thomas, for example. He and Justice Sotomayor, agree that qualified immunity has serious issues, and a lot of conservative jurists are also suspicious of policymaking by the court. The original understanding of the role of the judiciary is that judges are the ones that are supposed to see whether the right was violated and then order a remedy. Then it is up to the legislative body to worry about incentives, and deterrence effects, and then impose some sort of an immunity. Congress has never blessed qualified immunity in any shape or form.

Conservatives and Liberals are suspicious of qualified immunity perhaps for different reasons, but they end up often agreeing with each other. We understand that maybe qualified immunity shouldn't be as big of a burden when you sue a mayor, but when it comes to police officers, maybe it should be a big burden because police officers often act in the heat of the moment. There's also that other part of Conservative bench that's worried about those kinds of repercussions.

Kai Wright: That points us to some really fundamental questions that kind of swirl in this debate. There is a difference between reducing crime at any cost and keeping the public safe, but also in keeping police officers safe. It depends on what politically you have centered. I guess the bottom line is, can we do all three? Can all three of these things happen? Can you reduce crime, keep the public safe, and keep police officers safe?

Anya Bidwell: Yes. As long as we have the system of checks and balances that operates properly. For example, in my field, when it comes to people being able to sue and as a result, keep government officials accountable. It's great when courts are the ones that are looking at whether the law was violated and then ordering a remedy for the individual. Then it is absolutely up to the political legislative branches to look at whether there need to be some protections implemented through laws that would protect police officers, for example. If everybody does what they're supposed to do, then we can actually have a win-win-win situation.

Mike White: I think Anya is right. I think the structures are there to deliver on all three of those. The principles of police accountability are well known. That starts with good recruitment and selection of officers. Train them properly, supervise them, hold them accountable when they make mistakes. We've known that for decades. If you're the chief of police, you have to deliver on that.

Kai Wright: We will have to leave it with that. All three of you, thank you for your work and thank you for this conversation.

Samuel Sinyangwe: Thank you.

Kai Wright: Thank you very much.

Anya Bidwell: Thanks very much.

[music]

David Remnick: That's Kai Wright, the host of Notes for America which airs on public radio stations on Sunday evenings. We heard from Samuel Sinyangwe, the creator of Mapping Police Violence, along with Anya Bidwell, an attorney for the Institute for Justice, and Mike White, a professor of criminology at Arizona State University.

[music]

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