Responding to the Fierce Urgency of Now

by Jonathan M. Smith

In August 1963, on the steps of the Lincoln Memorial with a nation watching, Dr. Martin Luther King Jr. made his famous “I Have a Dream” speech. The speech is best remembered for its soaring vision of a future that has moved past the legacy of slavery and racism. But Dr. King also talked about the critical nature of the moment and an urgency to achieve the goals of the civil rights movement without delay. Dr. King preached: “We have also come to this hallowed spot to remind America of the fierce urgency of now. This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to make real the promises of democracy. . . . It would be fatal for the nation to overlook the urgency of the moment.”

The last half century is characterized by missed opportunities to address policing practices that harm communities of color.

The last half century is characterized by missed opportunities to address policing practices that harm communities of color.

Emma Espejo/Moment via Getty Image

Dr. King explained that the urgency was driven by the magnitude of the injustices confronting African Americans. But he also argued that the urgency was driven by the sacrifice of those fighting for civil rights and the work they had done to create the conditions to make change possible. The time for change had come, and Dr. King warned of a “rude awakening if the nation returns to business as usual”—if the nation did not, among other things, address the “unspeakable horrors of police brutality.”

On an August day, 51 years later, Michael Brown died on the streets of Ferguson, Missouri. A social movement that had been brewing for some time broke through to the surface. “Black Lives Matter” became a national motto. Young people took to the streets to make demands. The national media, politicians, and the public took notice.

The epidemic of excessive force, the harm of racial profiling, and the crisis of community confidence in policing has created a protest movement. As a result, the nation finds itself in another moment characterized by the fierce urgency of now. The persistence of injustice in communities of color at the hands of police creates an irresistible demand for action, and the social conditions exist for there to be transformative change.

The Nation Has Taken Notice and Is Responding

The president took notice. Shortly after the death of Michael Brown, the president created the Task Force on 21st Century Policing. The task force, made up of policing experts, civil rights leaders, and community activists, issued scores of recommendations to make police departments more accountable and to improve police-community relationships. The recommendations, grouped in six domains—building trust and legitimacy, policy and oversight, technology and social media, community policing and crime reduction, officer training and education, and officer safety and wellness—built on best practices in community policing and emphasized the need to create a relationship of trust between police and the communities they serve.

In addition, the president, recognizing the importance of data in finding solutions to the policing crisis and that far too little information is systematically collected on police misconduct, has created the Police Data Initiative. The initiative is an effort to enlist departments around the country to voluntarily collect and report information on use of force, stops, searches, and other conduct. Twenty-one out of nearly 20,000 police departments have joined the effort. Notably, for more than 20 years, data collection on police officer use of force has been mandated by law. The Violent Crime Control and Law Enforcement Act of 1994 requires: “The Attorney General shall, through appropriate means, acquire data about the use of excessive force by law enforcement officers” and issue an annual report on the data collected. The attorney general has never met this obligation.

The Department of Justice has taken notice. Police accountability has been a priority of the Civil Rights Division of the United States Department of Justice throughout the Obama administration. (It is important to note here that I served as the chief of the Special Litigation Section of the Civil Rights Division from 20102015 and oversaw nearly two dozen investigations of law enforcement agencies.) The Civil Rights Division has dedicated more resources and undertaken more intensive and comprehensive investigations of police departments than at any other point in its history. Former Attorney General Eric Holder set the tone in a September 2014 speech to the Brennan Center for Justice: “The situation in Ferguson has presented leaders across the nation, and criminal justice and civil rights leaders in particular, with a moment of decision—and a series of important questions that can no longer be avoided. Will we allow this time—our time—to be defined by division and discord? Or will we summon the resolve, the fortitude, and the vision to reassess—and even to remake—our system, through cooperation, consensus, and compassion?”

State and local governments have taken notice. Cities across the country are experimenting with the use of body cameras as an accountability tool, and the public release of body camera video has become more common. According to the National Conference of State Legislatures, 25 states now have laws governing the use of body cameras, and others are considering new legislation. Civilian oversight bodies have been proposed, created, or strengthened in dozens of cities, including Newark, New Jersey; Albuquerque, New Mexico; Chicago, Illinois; and elsewhere. And there is a new interest in collecting and reporting data on the use of force by police. Prior to Michael Brown’s death, only two states—Oregon and North Carolina—required local police departments to collect data on the use of deadly force. To that list has been added California, Maryland, Colorado, and Connecticut. Fifteen states collect demographic information on traffic stops, and for the first time two states—California and Illinois—mandate the collection of demographic information on pedestrian stops. This is critical information for voters, activists, and policymakers working to reform policing practices.

The media has taken notice. Cell phone video has made it impossible to deny the pervasiveness and severity of misconduct. Police shootings or other uses of force are routinely captured and published to the world through mainstream and social media. Investigative reports of police misconduct frequently dominate the front pages of major city newspapers, and several papers—including the Washington Post and the Guardian—keep a running list of civilian deaths during encounters with police.

Voters have taken notice. Police accountability has become an issue for voters. At least two big city prosecutors lost reelection bids over their failure to prosecute police shooting cases. Chicago, Illinois, State’s Attorney Anita Alvarez and Cuyahoga County, Ohio, prosecutor Tim McGinty lost primary challenges for their handling of the cases involving the police shootings of Laquan McDonald and Tamir Rice, respectively. From city council races to the presidential campaign, candidates are faced with questions, and sometimes protesters, on the issue of police abuse and law enforcement accountability.

As important as these changes are, they are far from enough. In some communities, the change has been profound. But in far too many, measures are mere wallpaper over the growing cracks in our justice system. History teaches us that sustained and transformative change is required.

The United States Has Been Here Before

Excessive force by police has been a central issue in the struggle for civil rights. From the 1960s to the Black Lives Matter movement there has been a relentless string of incidents that has temporarily put police misconduct in the public eye, and then, as Dr. King warned against, the nation returned to “business as usual.” These missed opportunities are powerful object lessons for the current efforts at reform.

When thousands of children marched in Birmingham, Alabama, in May 1963, Police Chief Bull Connor sought to quell the protest with dogs and firehoses. The brutality of the response shocked the nation and got the attention of President John Kennedy, leading him to seek action on the Civil Rights Act.

Only a few years later, in 1967, rebellions and rioting in Newark, Detroit, and other cities led to the creation of the National Advisory Commission on Civil Disorders, commonly called the Kerner Commission. The Kerner Commission reached a series of conclusions regarding discrimination in housing, employment, education, and law enforcement. Among its most startling was the Commission’s conclusion that police, to many, had come “to symbolize white power, white racism, and white repression.” Detailed recommendations were contained in the report, including the creation of community policing strategies, practices to reduce excessive force, hiring initiatives to increase the numbers of African American police officers, and community oversight. In one form or another, virtually every recommendation in the Kerner Report is found 50 years later in the Final Report of the President’s Task Force on 21st Century Policing.

Just a year earlier, the Black Panther Party was formed in Oakland, California, initially with the exclusive purpose of protecting African American residents from police abuse. The Party created patrols of its members, often armed with rifles, to monitor police behavior and stand watch during encounters, a practice that led the California legislature to enact the strictest gun control in the nation. The Oakland police department, after decades of litigation, remains under federal court supervision for some of the same practices that motivated the creation of the Black Panther Party.

In 1979, Arthur McDuffie, an African American man, died after being beaten by four Miami, Florida, police officers during a traffic stop. The beating was so brutal that his skull was split into two parts. The acquittal of the officers led to rioting in the Overton and Liberty City neighborhoods of Miami. The violent and widespread nature of the uprising required the calling up of the National Guard. More than $100 million in damage was caused by the riots, which exposed the deep rift between the African American community and the police.

In 1984, Eleanor Bumpurs was killed in her apartment by the New York City Police. She was a public housing tenant and had withheld $100 in rent to protest the conditions of her apartment. When the officers arrived to evict her, she refused to open the door. After drilling a hole in the door to look inside, the officers forced their way in and shot her twice with a shot gun. While an officer was charged in Bumpurs’s death, he was acquitted. The brutality of the incident led to mass protests and demands for reform.

In 1992, the acquittal of the officers who beat Rodney King set off a rebellion in the Watts neighborhood of Los Angeles. The mayor appointed the Independent Commission on the Los Angeles Police Department, chaired by Warren Christopher to study the causes of the riots. The Christopher Commission findings mirrored those of the Kerner Commission and called for stronger accountability, changes in police practices, and better community relations. The riots in Los Angeles also led to the enactment of legislation that authorized the United States attorney general to address “patterns or practices” by law enforcement of violations of the Constitution or federal law.

It did not stop after Rodney King. Every few years, another shooting or beating erupted onto the front pages of newspapers, protests ensued, public officials announced reforms, and the country moved on. A demonstrative list of high-profile police misconduct events demonstrates that the issue will be with us until fundamental change is achieved. In 1994, Ernest Sayon was suffocated and died while Staten Island police handcuffed him, and a grand jury refused to indict. Abner Louima, a Haitian immigrant, was beaten and sexually tortured by New York City Police in 1997, setting off marches and demonstrations. In 1999, four New York officers shot unarmed Amadou Diallo with 44 bullets. Their jury acquittal led to a protest movement. On New Year’s Day in 2009, Oscar Grant was shot on the train platform in Oakland, California, by BART police. Demonstrations, and then rioting, led to more than 80 arrests. In 2014, James Boyd, a mentally ill man, was camping illegally in a public park in Albuquerque, New Mexico; he was shot to death as they attempted to arrest him, and nights of protesting and rioting ensued.

The war on drugs profoundly changed the criminal justice system. Incarceration has exploded, states and the federal government cannot build prisons fast enough to keep up with the growth, and there are now 2.3 million people in prison or jail and nearly seven million under correctional supervision in the community. African American men are six times more likely to be confined to prison or jail than white men, and 20 percent of African American men are in prison, jail, or under supervision. The United States has 4.4 percent of the world’s population and 22 percent of its prisoners. Police, as the public face of the criminal justice system, often bear the burden of community mistrust and resentment of the system as a whole.

This Time Can Be Different

The history of the last half century is characterized by missed opportunities to address policing practices that harm communities of color and that lead to mistrust. This time can—and should—be different. There is reason to be hopeful.

First, the nation is paying attention. This is not an issue of one city or one state, but of national concern. It cannot be cabined off as a problem of one place or one department. While policing is largely a local function, national attention can bring with it national solutions.

Second, it is no longer possible to deny the problem or to attribute police misconduct to a “bad apple” or an isolated incident. There is a growing recognition that the problems are with policy, practices, and procedures. Policing does not have a problem with bad officers. While there are a few, most police officers are honorable and dedicated public servants. It is a problem with a system that creates hostility with the very people it intends to serve, is infected with implicit (and sometimes overt) racial bias, and lacks meaningful accountability. Both individual officers and communities are ill-served. Communities are demanding not only that misconduct be punished, but also that the very premise of policing practices change.

Third, technology will make it easier to collect, understand, and disseminate data. Police departments are opaque institutions. Little beyond crime and arrest statistics is available to the public. The transparency that will be created by the collection of data on police behavior will allow for democratic engagement on the role of police in the community.

Fourth, cell phone, body-worn, and dash-cam videos have made it impossible to dispute many incidents of excessive force or other abuse. Reliance on videos, however, poses a risk. For decades, the reports and the testimony of people of color have not been believed by the media, political leaders, or the courts. Until we credit the reports of black voices, we will continue to doubt cases in which no video is present.

And finally, the organizing and protests in the wake of Ferguson have created a youth movement. Young people are demanding change and bringing ideas and energy that will sustain the reforms.

Making police responsive to, and part of, the communities they police is essential to the struggle for civil rights. The struggle has been long-standing, and we have let many opportunities slip through our grasp. This time, we can respond to the fierce urgency of now.

Jonathan M. Smith

Author

Jonathan M. Smith is the executive director of the Washington Lawyers’ Committee for Civil Rights and Urban Affairs. He served in the U.S. Department of Justice Civil Rights Division from 2010–2015 and, among other matters, worked on police accountability cases.