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Policies, Policing & Public Safety

Why Should You Care…?

Perverse incentives are all around us. What most people miss in our current societal and cultural climate is that policies matter. They are designed–purposed–to drive human behavior. Policies also have unintended consequences. Here is an example of both:–san-bernardino-county-sheriffs-deputy-found-not-guilty/13352182/

The story involves a violent attack on a San Bernardino County sheriff’s deputy in 2019. The attacker was not convicted of the most serious charges, including attempted murder, battery against a peace officer, removal of an officer’s sidearm and resisting arrest. The facts are rather simple. The deputy responds to a frantic 911 call, where a woman can be heard saying: “Oh, my God, oh, my God! Get my son out of here.” Then the phone call goes quiet.

Deputy McCarthy arrives and sees a man existing a home with a woman holding a knife walking behind him. She engages the man, and attempts to do a protective pat down. He then goes off. Striking her repeatedly–and then disarming her. He fires her weapon seemingly attempting to kill the deputy.

The jury found him not guilty based on the conclusion that the deputy did not have reasonable suspicion that the man was engaged in criminal activity. Without this, the deputy did not have the lawful authority to detain him or to conduct a protective pat down search. Once this conclusion was reached, everything the suspect did to the officer was legally irrelevant. He could not be legally accountable for his actions subsequent to being illegally detained by the deputy.

Underlying Policies = Bad Outcomes

What did not get mentioned in the ABC piece was California Assembly Bill No. 3070. The law was enacted following the “summer of love,” and signed by the governor on September 2020. This law amended the peremptory challenge statute relating to jury selection. Crucial changes may have enabled the tragic outcome of this case.

This statute provides that prospective jurors who have expressed:

Distrust of or having a negative experience with law enforcement or the criminal legal system.

Belief that law enforcement officers engage in racial profiling or that criminal laws have been enforced in a discriminatory manner.

Prospective jurors who hold these sentiments ought to be allowed on the jury, “unless the party exercising the peremptory challenge can show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror’s…” [Here a list of protected classes are enumerated] “race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups…”

While the peremptory challenge can be overcome, doing so is akin to mind reading. Showing by “clear and convincing evidence” is a very difficult standard to overcome. It would essentially require getting inside someone head to determine that their biases will affect their decision. Yet, it’s now effectively impermissible to inquire if a prospective juror may distrust or had negative experiences with police or the legal system, and/or believe that racial profiling or criminal laws are discriminatorily enforced.

Those who say and/or believe such are now welcome to participate in the legal system as the trier of fact in application to the law. In short, since all jury trials in criminal proceedings involve law enforcement in some capacity or manner, those who hold such beliefs are nonetheless allowed to sit and decide the case.

So, was the jury decision based on anti-police bias? That is what Deputy McCarthy said. Though the defense attorney argued that the deputy did not have lawful authority to detain the young man, who angrily existing a home followed by a woman holding a knife. Recall the deputy was called to the scene through a frantic 911 call. 

Were these facts not sufficient to establish reasonable suspicion? Can one reasonably conclude that “jury nullification,” referring to decisions against what the law and the facts otherwise demonstrated, may have played into this decision? Yet, in our current race based and woke climate, we are not now allowed to inquire if anyone on the jury may distrust or had negative experience with police or the legal system, and/or believe that racial profiling or criminal laws are discriminatorily enforced.

Policies are People & Policies have Consequences

The moral of this sad account is that policies are made by people and directly impact people. Deputy McCarthy was beaten so severely that she was medically retired from the job. Yet, those was drafted the policy are far removed from its consequences. They do not have to engage potentially violent people.

Police officers who may, however, are watching. What does this case say to them? It says be careful. Don’t engage. Take it easy getting to that 911 call. Since Deputy McCarthy was the “first responder,” she was the one having to make what would normally be construed as a routine pat down, typically considered a “Terry stop.” Because she was there first, she was the one who was beaten and could have been killed.

Since all policies have consequences, what consequential response should see expect from police officers? Clearly, many will conclude this case amounts to legal fiasco. To use the legal standard, what would an objectively reasonable person–who also happens to be a law enforcement officer do? Well, of course, the officer should do the job they were hired to do. Yet, how one does his or her job is the optimal question. Does this result in what is often called “going through the motions.” All industries and businesses wrestle with human nature, with productivity, with job performance. What drives an employee to strive for excellence has been a subject of countless business and psychological studies and books.

If police “go through the motions,” should we expect more crime, more victims, and more violence?

In short, are we to ignore what are obviously perverse incentives? Do we apply irrational thinking and expect optimal results? Indeed, can we logically conclude two mutually opposing factors relating to law enforcement:

Police operate in a manner that is racially discriminatory…

Police are expected to insert themselves in situations where their actions will be legally judged by those who may be biased against them

If we conclude this is the appropriate way forward, then what we can expect is not akin to “brain surgery.” Humans will act as they are incentivized. As is unfortunately common to mankind: People fail to learn from history because they fail to understand human nature.

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