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Excerpted From: Frank Rudy Cooper, Cop Fragility and Blue Lives Matter, 2020 University of Illinois Law Review 621 (2020) (304 Footnotes) (Full Document)


FrankRudyCooperThe starting point for understanding cop fragility is recognition that there is a new police criticism. Numerous high-profile killings of unarmed blacks between 2012-2016 sparked, then fanned the flames of, the movements that came to be known as Black Lives Matter, #SayHerName, and so on. Those movements are characterized by confrontational methods and deep critiques of the status quo. Professor Amna Akbar and others have thus written eloquently about the way recent Black Lives Matter proposals set up a space of radical contestation. The new police criticism is also unique in its intersectional focus on women of color, including trans women. One question this contestation provokes is, how have the police and their supporters responded to the new police criticism?

They have responded not with reform, but with resistance. A prime example is the way the Blue Lives Matter movement counter-attacks on the issue of civil rights. Blue Lives Matter began as a media company on Facebook in 2014 when two police officers were ambushed and murdered. Blue Lives Matter complains about the treatment of police in general and calls for making assaults on police hate crimes akin to those addressing attacks on historically oppressed groups such as African-Americans, Jewish people, and sexual orientation minorities. Making assaulting police officers a hate crime seems to be more of an abuse of civil rights discourse than a bid for reform.

Legal scholarship has hardly addressed the general impact of police criticism on the police. This Article provides a new perspective on the effects of criticism of the police on the police by applying diversity trainer and New York Times best-selling author Robin DiAngelo's recent theory of white fragility to the Blue Lives Matter response. The concept of white fragility is just starting to make its way into legal scholarship. DiAngelo's core assertion is that, in general, white people are resistant to the suggestion their experiences and worldviews are influenced by their race, let alone that they benefit from racism. Many whites are thus fragile in conversations about race; they resist having such discussions and exit them as soon as possible.

The two primary defensive mechanisms of white fragility match up well with police methods of resisting the new police criticism. First, DiAngelo points to some whites' false assumptions that they can be objective individuals. Thinking one can be purely objective and completely individualistic hides race from whites when they evaluate whether their experiences and worldviews are as influenced by their group status as are those of people of color. Likewise, police officers often claim a false objectivity by arguing they are the best and only judges of what criminal prevention requires. This assumes the police can be the objective arbiters on their own behavior; no one else can or should watch the watchmen. Holding that sense of self, the police have their very identity disrupted by the new police criticism.

Second, DiAngelo points to bad intent theory as making it seem to whites as if only morally bad people could be racists. This is the notion that you can only be racist if you have the goal of hurting racial minorities. In fact, racism is structural and a wide range of people are implicitly biased, including many racial minorities. The police analogue of bad intent theory is “bad apple” theory, in which it is conclusively presumed that only a small percentage of police officers are misbehaving. The burden of disproving “bad apple” theory is placed on minority civilians under the increasingly deferential standards set by the police in conjunction with a complicit judicial branch.

This Article is the first comprehensive study of the police's inability to truly hear criticism about their treatment of racial minorities. The primary problem revealed is that racial minority communities will not perceive the police as legitimate unless they genuinely listen to communities. If the police are seen as illegitimate, they will not receive much needed cooperation in identifying crime and pursuing its perpetrators. Unfortunately, Blue Lives Matter advocates sometimes strike a hysterical tone in their denial that the police should reform. That makes it difficult for them to adopt effective reforms that can heal their relations with racial minority communities.

This Article's specific proposal is for police departments to hold mediated listening sessions with the new police critics with the goal of identifying reforms that would rebuild community trust of the police on the community's terms. It turns out there is a well-studied method for having difficult conversations like these. The Article thus recommends that the Department of Justice and/or state attorneys general hold regular sessions with law enforcement in racial minority communities based on the practices detailed in the negotiation classic, Difficult Conversations: How to Discuss What Matters Most.

The Article proceeds in three substantive parts.

Part II discusses the new police criticism and the backlash thereto implied by the Blue Lives Matter movement.

Part III explicates DiAngelo's white fragility thesis, analogizes it to cop fragility, and identifies cop fragility's detrimental effects.

Part IV proposes the mediated listening strategy and considers potential objections and identifies future applications of cop fragility theory.

The Article then briefly concludes.

Before beginning the substance of this Article, a few caveats will be helpful. First, it is true that not all police officers are white. To highlight the argument that resistance to the new police criticism operates like white resistance to race- based criticism, though, it makes sense to treat the police as though they were a mostly white and almost always white-controlled institution. Second, while many white police officers abhor explicit racial bias, racism is often structural or implicit, so the objection that most police officers do not intend to be racist does not clear them of perpetuating racial inequality. Finally, the assertion of cop fragility is a claim that police officers are oversensitive to criticism that they perpetuate racism. That claim may seem extreme, even unpatriotic, but please consider the argument herein before rejecting the cop fragility framework. The overall goal of this Article is to help the police and their communities by showing what might be blocking police from understanding their critics. The police cannot gain the trust of black and Latinx communities unless they hear and address racial criticism. Calling out cop fragility may seem like tough medicine, but it is designed to help the police by getting to the source of their resistance.

[. . .]

We all want the police to be effective at fighting crime. It is impossible for them to be maximally effective when they are perceived as illegitimate. Cop fragility exacerbates that problem by leading the police to be particularly resistant to race-based criticism. If the assertive methods and tone of the new police criticism are irritating to the police, that is understandable. But Blue Lives Matter's turning of backs on the criticism surely will not help. Listening harder might do so.

William S. Boyd Professor of Law and Director, Program on Race, Gender & Policing, University of Nevada, Las Vegas William S. Boyd School of Law.

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