Podcast: How police licensing agencies can weed out bad cops; what 911 calls EMS could take over from police: and Just Liberty and the Austin Justice Coalition unveil a new jingle aiming to oust Austin police Chief Brian Manley

Here's the July 2020 episode of Just Liberty's Reasonably Suspicious podcast covering Texas criminal-justice politics and policy, co-hosted by Scott Henson and Mandy Marzullo.

This month, Mandy and I discuss how police licensing agencies can weed out bad cops, what 911 calls EMS could take over from police, and unveil a new jingle from Just Liberty and the Austin Justice Coalition aiming to oust Austin police Chief Brian Manley. Here's what's in this month's episode:

Top Stories

• Police licensing agency in Texas undergoing comprehensive review: How to fix it. (2:50)
• EMS union head tells how police responses to 911 calls can be reduced: Analyzing Austin 911 call-center data. (12:17)
• New jingle from Just Liberty, Austin Justice Coalition, calls for Austin police chief's ouster. (23:25)

Something, Nothing, or Everything?

• Reviewing new Texas public opinion polling on criminal-justice topics. (31:07)
  
• Progressive challenger Jose Garza defeats incumbent Margaret Moore in Travis County District Attorney primary runoff. (35:15)
• Audit of Houston PD Narcotics Division finally released (38:23)

The Last Hurrah (47:45)

• 5 years since Sandra Bland's death: What's next?
• Texas and feds both resumed executions: Feds are a bigger deal.
• San Antonio PD can't fire bad cops: 70% of terminated officers get back on the force.

Find a transcript of this episode below the jump. Enjoy!

Should social workers supplement or displace police? SWAT for show, Confederate prison names, and other stories

Here are a few odds and ends to hold y'all over while I finish editing this month's podcast:

Getting to know Jose Garza

Grits had earlier opined that, when he takes office in January, Travis County's Jose Garza will arguably become Texas' first truly "progressive" District Attorney, at least when judged by national standards. See an interview with Jacobin magazine, coverage from The Appeal, and an editorial in the Texarkana Gazette.

Mike Ramos shooting video released

Austin PD released video from the Mike Ramos shooting. It confirmed critics' claims and discredited APD's official account of what happened. Related: From the Washington Post's Post Reports podcast, check out, "Can police learn to de-escalate?"

Should social workers supplement or displace police?

There's much talk these days of deploying social workers to address many of the problems that society uses police to confront now. A program in Houston raises the question: Should they be deployed along with or instead of police officers? Different cities are trying both approaches. Also check out a recent letter from social workers to the Austin City Council supporting a shift in responsibility from the policing profession to theirs. See also a video "community conversation" sponsored by the Austin Justice Coalition on the topic of social workers and policing.

SWAT for Show

In Williamson County, the Sheriff would deploy the SWAT team to execute search warrants to make things more exciting for a reality TV show that was filming at the department. The TV show, LivePD, recently shuttered after it was revealed they'd recorded a Sheriff's deputy killing Javier Ambler and never turned footage over to authorities.

Recalling prison violence

At The Tyler Loop, Jennifer Toon tells a story of violence and racism from her time in prison.

Will ex-Confederate name purge extend to prisons?

At the Marshall Project, Keri Blakinger wonders if the movement to purge racist and Confederate-themed names from institutions will extend to prisons, and suggests a few candidates for change if it does.

Baltimore suddenly a punching bag in justice-reform debates

When Grits thinks of Baltimore, three things come to mind: 1) soft-shell crabs in the summertime, 2) the musical "Hairspray" ("Good morning, Baltimore!") and 3) "The Wire," which the missus and I binge-watched this year for the first time since it originally aired. But in recent years, the city has also become a conservative punching bag over crime, suffering from high murder rates and an intractably corrupt city bureaucracy seemingly incapable of steering the ship.

In recent NY Times op ed, columnist Bret Stephens offered up Baltimore as an example of the risks of rule by liberals aimed at placating protesters. He pointed to this extensive NY Times Magazine feature on Baltimore from last year to support his thesis, so I read the whole thing. It suggests a more complicated picture than just Democrats-are-inept. In fact, it attributed the crime spike mainly to a union-driven ploy to punish the city for perceived insults as a result of protests over Freddie Gray, a young black man killed in BPD custody:

The department’s officers responded swiftly, by doing nothing. In Baltimore it came to be known as “the pullback”: a monthslong retreat from policing, a protest that was at once undeclared and unmistakably deliberate — encouraged, some top officials in the department at the time believe, by the local police union. Many officers responded to calls for service but refused to undertake any “officer-initiated” action. Cruisers rolled by trouble spots without stopping or didn’t roll by at all. Compounding the situation, some of the officers hospitalized in the riot remained out on medical leave. Arrests plunged by more than half from the same month a year before. The head of the police union, Lt. Gene Ryan, called the pullback justifiable: “Officers may be second-guessing themselves,” he told The Sun. “Questioning, if I make this stop or this arrest, will I be prosecuted?”

The result: "residents were pleading for police officers to get out of their cars, to earn their pay — to protect them."

Notably, this sort of targeted worker slowdown just what Austin Police Association boss Ken Casaday threatened to do in Austin in response to recent calls for accountability. He shouldn't have authority to enact such a policy. But he might.

The Baltimore police commissioner "admitted he was having trouble getting officers to do their job. 'I talked to them again about character and what character means,'" but to no avail. According to the Times Magazine story, this was a particularly inept and corrupt era of political rule in Baltimore, empowering the union to play hard ball with public safety.

This explanation amazes me: What other job affords employees so much authority to openly defy their bosses and refuse to perform their duties? In what other job would employees continue to be paid if the employer could not verify they were performing the functions they were hired to undertake? How can officers be that brazen and not just be fired?

Having just read the NYTM article on Baltimore yesterday, this morning I was interested when Jerry Ratcliffe's "Reducing Crime" podcast published an interview with Danny Murphy, who is the deputy commissioner at Baltimore PD in charge of compliance with the DOJ consent decree the city presently operates under. The Baltimore consent decree has 511 separate paragraphs with which the city must comply. Murphy had previously held a similar position in New Orleans.

Ratcliffe wanted to portray the consent decree as insulting to officers and something they'd automatically chafe at. Murphy agreed that could happen. But he pushed back on the idea that there was an inherent tension between reform and crime fighting. He cited his experience in New Orleans to say that rebuilding community trust could be central to solving serious violent crimes that rely on witnesses, informants, etc., coming forward.

Their conversation was notably devoid of specific references to "police unions," using implied allusions to describe their agenda and treating them like the Dark Lord in a Harry Potter book as "He who must not be named." 

Still, Murphy's sanguine view on the feasibility of reform lays in stark contrast to Bret Stephens' darker, partisan framing. Stephens blamed protesters for the Baltimore "pullback." From these accounts, one could perhaps more credibly blame the police union and a lack of professionalism and discipline among the Baltimore PD ranks. That's a more entrenched and difficult problem that can't be solved with a single election.

How the #txlege can pay for needed staff, reforms at Texas' peace-officer licensing agency

Grits mentioned earlier that the Texas Commission on Law Enforcement (TCOLE) is up for Sunset review and suggested that many of the needed changes at the agency would require new appropriations. The problem arises: COVID and the oil bust have reduced state revenue and state agencies, including TCOLE, have been asked to reduce budgets accordingly. So is that realistic?

TCOLE's budget is paid mostly from the General Revenue fund and a few disparate grants. But considering they're a licensing agency, there's a big, gaping hole in their revenue sources: Licensing fees!

Neither officers nor agencies pay licensing fees to cover the cost of state regulation. By contrast, a Master Plumber's license costs $175 and $75 to renew every three years.

As of today, TCOLE reports licensing 80,209 officers in Texas statewide. If licensees or their employing agencies paid $50 per year, it would generate $4,010,450, which would essentially double TCOLE's budget. That would be sufficient to finance most recommended reforms.

And yes, this would pass costs down to local agencies, or possibly officers themselves. OTOH, having a regulatory agency that receives no funding from licensing fees is a weird anomaly that only exists that way because police have been given too much deference in the past. Every other regulatory body is paid for by fees from the regulated: Why shouldn't that be true, at least partially, for cops as well?

Texas agency that licenses peace officers up for 'Sunset' review: What needs to change to improve accountability?

The Texas Commission on Law Enforcement, which is the state licensing agency for Texas police and jailers, is up for "Sunset" review during the next Texas legislative session in 2021. During a session when policing issues may dominate, this will be a track worth watching.* Here's the agency's "self evaluation" prepared as part of the process.

For the un-initiated, all state agencies in Texas every 12 years undergo a comprehensive "Sunset" review to analyze whether their core functions are still relevant and if the agency should continue to exist. If the agency is not proactively renewed by the Legislature, it is "sunsetted" out of existence. But seldom does the Sunset Commission make that recommendation. Instead, they identify ways the Legislature could fix the agency to better achieve its goals.

That's what I anticipate will happen with TCOLE. Texas has nearly one-sixth of the nation's law enforcement agencies (2,740) and more than 80,000 licensed officers. So there's a continued need to license officers and ensure that training meets minimum state requirements. But there's also plenty of room for improvement.

Lege, not agency staff, to blame for TCOLE's biggest shortcomings

Grits likes TCOLE Chief Kim Vickers and told the Sunset reviewers as much. From the time he assumed leadership of TCOLE (then TCLEOSE), he demonstrated he intended the agency to perform the oversight functions it had been assigned but which had languished under his predecessors. In short order, they began to find several jurisdictions where officers received training credits for classes they never took. Vickers took heat for pursuing these cases but didn't back down. I respected that about the man a great deal.

At the same time, viewed broadly, IMO it's inarguable that the agency is failing at the accountability functions which are the primary reasons for licensure. However, the reasons are statutory limits on their authority. They are an almost classic example of a "captured" regulatory agency. It's just that the capturing wasn't done at the agency level but at the Texas Legislature, which gives them few resources and only a narrow scope of authority for an impossibly big job.

Grits doesn't say this about many state agencies, but at root, TCOLE needs more staff and more power. As presently constructed, it was designed to provide the appearance of oversight (i.e., licensure) without meaningfully performing the function. That must change.

Staffing shortages prevent expertise development at agency, meaningful oversight

On staffing, the most urgent needs arise in curriculum development where outdated curriculum requirements are scattered across nearly every topic. When I last spoke to them about it, TCOLE employed one person in this role and struggled to find qualified staff at the salary they can pay. It's necessary, though. Right now, when you talk about curriculum changes, the waiting list until they get to a new topic is 3-4 years long. 

On training oversight, we've seen before that when TCOLE began exercising its oversight functions, they very quickly found examples of (sometimes allegedly criminal) misconduct. With 2,740 agencies, they need staff substantially beefed up to do more on the topic than an occasional sampling approach. They also could play a bigger role in weeding out bad training put on by private contractors, but do not presently have staff or authority to play that role. Training requirements across the board need to be reviewed for relevance, coherence, and comportment with modern best practices. 

Indeed, as the agency approving training curricula, one would expect TCOLE to possess issue-area experts in the areas they oversee. But they do not. So we get unfortunate examples like the agency being assigned to change how racial profiling data is gathered and, because they have no statistical experts on staff, screwing up and eliminating the racial elements from the data. (This is supposedly being fixed, I've been assured.) Having staff experts who could provide technical assistance would particularly benefit locals in evaluating training options. But there are many other examples where TCOLE should be participating in national conversations on policing best practices and using those experiences to inform training in Texas. Texas simply doesn't employ staff to perform those functions.

Boost TCOLE's authority to decertify bad cops

Another example of TCOLE's need for more authority: They need the power to completely decertify peace officers who engage in severe misconduct. Currently they only decertify if the officer is convicted of a felony. However, in about 2/3 of states, law-enforcement licensing agencies can decertify officers for misconduct without a conviction. 

This would be especially helpful for smaller agencies which already struggle to hire quality staff, or any staff at all. They often accept still-licensed officers with histories of misconduct because they feel they have no other options. Taking them out of the pool entirely would help solve the "gypsy cop" problem of officers floating from agency to agency being fired for misconduct. That said, giving them this power would also require more staff attorneys. They presently only have one and need at least one more to fulfill their current functions. It's super important not to lard the agency with mandates it has no resources to fulfill!

We also discussed something known in Texas police circles as the F-5 form, which started out as a reform  idea to notify chiefs and Sheriffs when an officer had a history of misconduct. But the police unions neutered it at the Legislature and the version that came out of the process provides no assistance to anyone and confuses more than it illuminates. I suggested they either turn it into a more comprehensive list of officer misconduct or stop doing it. It could be an important form of transparency - personally I think they should have much more information in them and should be public records - but as it stands, the F-5 is a waste of everyone's time.

Scale back scope, proliferation of police agencies statewide

Not only does TCOLE need more authority to decertify bad cops, but also bad agencies. There are more than 30 different types of entities - including "water control and improvement districts," railroads, the dental board, and the Southwestern Cattlemen's Association, which are authorized to have their own police agencies. That list should be scaled back, and/or the powers of many of them should be limited in scope. There's no need for cops from the dental board or the local school district to have authority to make traffic stops anytime, anywhere; they don't all need authority to assist other agencies in emergencies; not all need be armed (school marshals already are required to store their weapons most of the time).

Grits would also like to see the state make it a long-term goal to reduce the number of police agencies and merge smaller agencies to the extent possible. Perhaps the legislature could create some study task force to hammer out a plan to accomplish this, since nobody including me seems to have one. But it needs to be done. My theory: Management skill is a limited resource and there's simply not enough of it to spread around so that the smaller departments are likely to find any. Texas has about 1/11th of the nation's population but nearly 1/6th of its police forces. And our homicide rate is higher than California, Oregon, New York, New Jersey, etc., which have fewer agencies per capita. It's not like we're getting best-in-class outcomes from the vast, decentralized police ecosystem we've built out in Texas.

***

In summation, the Texas Commission on Law Enforcement should continue to exist but must change to be useful or relevant. It needs more staff, more expertise, and more power. It can and should play a more meaningful role in police accountability - by decertifying bad cops, closing or merging poorly performing departments, and bringing high-level expertise into Texas police officer training - but not without a substantial budget increase and an expansion of its statutory authority.

Is that possible in the current political environment? Police oversight is far more popular than it was a year ago, but the state budget outlook is oh-so-much gloomier. If the solutions at TCOLE involve doubling or even tripling its budget in a session when other agencies must take haircuts, will that be viable? Maybe. It's a small amount of money in the scheme of the Texas budget. But it will require a change in mindset among budget writers and the membership at large at the Texas Legislature.

See prior, related Grits posts:

• Sunset review provides chance to restrict who in Texas gets to have a police force
• San Antonio can't fire officers who use the N-word or feed homeless people feces: Accountability systems in Texas civil service cities broken
• TCOLE screwed up new racial profiling data required under the 2017 Sandra Bland Act

* Sunset staff interviewed Grits yesterday about TCOLE and I scribbled down a few notes before I chatted with them to organize my thoughts. This blog post is based on those; it may later become the basis for written testimony.

Boomer Dems backlash vs #cjreform in Austin, Prison TikTok, Texas' first, truly 'progressive' DA, and other stories

Here are a few odds and ends that merit Grits readers' attention:

Travis County elects Texas' first 'progressive' prosecutor

Jose Garza in Austin is arguably the first truly "progressive" District Attorney elected in Texas (to the extent one can be progressive in that job). Younger voters turned out in droves to support him and other #cjreform-minded candidates. In earlier election cycles, when it came to prosecutor races, "progressive" was more or less a euphemism for "Democrat." Kim Ogg in Houston defeated more progressive primary opponents and campaigned against bail reform. John Creuzot in Dallas was dubbed a progressive candidate, but he's a former Republican, also defeated a reformer-endorsed primary opponent, and governs as a centrist. In reality, Democratic Texas DAs historically have not been that progressive compared to how that term is applied nationally. 

Garza, by contrast, campaigned on eliminating money bail, pledged to stop prosecuting less-than-a-gram drug cases, and said he would pull the office out of the state prosecutor's association. From my personal interactions (Grits didn't know him before he ran), Jose seems like a smart attorney, his political instincts are good, and he's a hard worker. I felt like Garza learned a lot over the course of the campaign and improved as a candidate. By contrast, Margaret Moore dug in on her weaknesses and blamed her critics for not understanding instead of acknowledging good-faith disagreements with them. Moore's repeated insistence that only insiders knew what reforms were needed isolated her from all the groups that could have validated the reform credentials she wanted to claim. I think Garza would have won anyway, but Moore made the outcome much worse for herself.

In the County Attorneys race, Travis County voters also went with the better #cjreform candidate - current city council member Delia Garza defeated Laurie Eiserloh. Full props to Laurie, whom my wife and I have known since college. There are many offices I'd vote for Laurie Eiserloh to hold, but perhaps none of them are prosecutor gigs. Eiserloh enjoyed years of experience at the County Attorney's office (on the civil side) and had forgotten more about the office's inner workings than Delia could possibly know. But she was a rookie when it comes to criminal-justice reform while Garza had proven herself in #cjreform fights at city hall. What's amazing to me is to finally have an election cycle where those are the things that matter to Austin voters in a prosecutor's election!

Austin reformers face Boomer Backlash

Since Grits hasn't been shy about criticizing Austin journalists who fail to cover the real storylines happening all around them when it comes to criminal-justice reform, I should take a moment to offer thanks and approbation to Mike Clark-Madison at the Austin Chronicle for his coverage of the new group, Voices of Austin, which has been excellent. Clark-Madison called out the aging establishment Democrats populating this group, declaring that:

these voices of yesteryear are kindred spirits of the Red Team reactionaries who aim to re-criminalize homelessness, it appears. The press release announcing Voices' kickoff was headlined: "Eight Out of Ten Austin Residents Believe City Government Does Not Listen." That's according to their poll, which Barrientos describes as "extensive, professionally conducted public opinion research." The release does not disclose who conducted the poll, how many people were polled (though it does say the margin of error is +/- 4.9%, so I'm guessing at least 600), or what they were actually asked.

Having done plenty of polling myself, I'd quite like to know those things, but whatever, let's assume this is legit. It's amazing how this open-minded exploration of the real feelings of average Austinites led these boomers to the same political positions they have held throughout the years I've known and covered them. Strip away the public opinion armature Voices is using to make its silent-majority case, and we find a group that opposes investments in either transit or active transportation (i.e., road warriors), opposes revision of Austin's land development code, and opposes any efforts to defund Austin's police force.

Thank you, Mike, you nailed exactly what's going on. Read both his stories.

Texans back police reform

From that second MCM Austin Chronicle story, statewide Texas polling demonstrates that:

73% of those surveyed agreed that police brutality is a "somewhat serious" or "very serious" problem. Similar lopsided majorities feel that police departments should reform their use-of-force practices, and that non-police ("other types of workers") should be responding to "community issues such as mental health and homelessness." A smaller majority (53%) agrees with the statement, "We need to reform the police." Pluralities support reallocating police funding to health and homelessness (46%) and agree that police unions have too much power (43%) and that police don't need military gear and vehicles (48%); large numbers are "not sure" in all three cases.

Police violence driving changes in public opinion

In the national press, I keep seeing critics refer to "violent protesters." But to Grits, one of the most striking developments in the last couple of months has been that the public has now witnessed gratuitous police violence at levels never witnessed before the rise of the cell phone. IMO, that's what has transformed the terms of debate and public opinion on criminal-and-racial justice issues. Violence by police has been more frequent and widespread, by far, than isolated incidents of violence from protesters, a fact further emphasized by last night's news from Portland.

Prison Tik Tok

Contraband cell phones in prison have led to the rise of prison TikTok. Wow. I love America.

On the folly of using prisons for drug treatment in the coronavirus era

The Texas Tribune's Jolie McCullough had a story a week or so ago that to me will be emblematic of how I recall this period: "He was supposed to be in prison less than a year. Instead he died after catching the coronavirus." 

According to the latest data, as of 7/16 there were 2,043 Texas county jail inmates and 572 staff who're currently diagnosed with COVID. In Texas prisons there are currently more than 2,200 inmates who've tested positive, along with 9,000+ more who acquired the virus and recovered. Five inmates have died in county jails; the list of the prison dead is much longer. See Jolie's latest coverage.

When all the important lessons have been learned and America's coronavirus episode is viewed in its totality with 20/20 hindsight, prisons will be seen as one of the big viral epicenters and the failure to depopulate them more thoroughly will be viewed as morally repugnant. Jails too, but prisons seem especially vulnerable to rather extreme outbreaks.

Prisons aren't like nursing homes, if you let people out they can mostly take care of themselves. They also aren't like county jails because prisoners can't leave. Even judges and prosecutors can't intervene to let high-risk people out. Family members can't bail them out. So they are just stuck there.

Setting COVID aside, when it comes to drug addiction, incarcerating someone to treat them for a medical condition makes no sense, anyway. On a personal note, I imagine having to be incarcerated for a crime to receive radiation therapy for cancer this spring. That can't be the right approach.

The man featured in the article died because of COVID, but also because society treats addiction as a criminal rather than a medical problem. He was incarcerated in order to secure drug treatment and died instead of being helped.

What should happen instead?

1. Governor Greg Abbott and the Board of Pardons and Paroles should use their commutation powers to rid the prisons of these short-time inmates as long as the coronavirus rages.
2. The Texas Legislature next year should finally change the law to reduce low-level drug penalties from a felony to a misdemeanor, as Oklahoma, Utah, and several other states have recently done. 
3. We must find a way to make drug and mental-health treatment available in Texas outside the justice system. Medicaid expansion remains the easiest near-term way to achieve that goal. The state should stop fighting federal health-care dollars and use Medicaid to provide mental-health and drug treatment outside of the criminal courts. (Oklahoma also recently expanded Medicaid, fwiw.)

Gov. Abbott's decision not to use his commutation powers probably underestimated the problem and overestimated the scope of the public backlash against anti-viral measures. (Turned out, the anti-mask folks weren't a great constituency to be courting.) I don't expect him to admit mistakes; none of them seem to ever do that. But I do expect to hear experts telling us at some future legislative hearing that, if the governor had commuted sentences for elderly prisoners and most of the short-timers, it probably would have saved lives.

Sunset review provides chance to restrict who in Texas gets to have a police force

To attempt to alter policing at a fundamental level is a vast undertaking. You're not changing one agency but thousands of them. America has more than 18,000 law enforcement agencies nationwide.

The general public rarely considers and likely barely conceives of the vast scope of law enforcement systems. Just in Texas alone, the Texas Commission on Law Enforcement reports that it regulates 2,740 agencies which collectively carry 80,130 peace-officer licenses and 22,944 jailers' licenses.

Law enforcement has grown in Texas in recent decades along several axes: The number of officers employed en toto has increased. The number of agencies has increased. The types of agencies which employ officers has expanded. Their proportion of local budgets have grown.

We're not just talking about the state's 254 county Sheriffs or its 1,800 or so municipal police departments. The Texas Code of Criminal Procedure 2.12 lists 35 categories of government entities that can employ peace officers, including the Dental, Medical, and Pharmacy boards, water control and improvement districts (!), and the General Services Commission (archaic: this is now the Texas Facilities Commission, which manages state properties).

But wait, there's more!

Railroad companies can employ their own licensed Texas peace officers, as can the Southwestern Cattle Raisers Association, whose offices are dubbed "special rangers" in the statute. Eric Dexheimer, now at the Houston Chronicle, had good coverage of this back in 2009.

In counties with less than 200,000 people, security officers for private colleges can be licensed through a local-area Sheriff or police department as "adjunct police officers" - up to 50 per institution.

Police employed by the Alabama Coushatta and Kickapoo tribes can be commissioned by TCOLE.

"School marshals" are licensed police officers in Texas, but unlike, say, Dental Board investigators or railroad company employees, the Code of Criminal Procedure insists that, "A school marshal may not issue a traffic citation." (At this, a light bulb went off over your correspondent's head: Powers of any of these 35+ categories can be limited!)

Thinking broadly, what is the scope of the "policing" industry in Texas? According to the federal Bureau of Justice Statistics, Texas in 2015 spent $16 billion on criminal justice, which broke out thusly:

• Police: 46.2%
• Judicial: 17.8%
• Corrections: 36%

So let's assume as a rough estimate that 46 percent of overall criminal-justice expenditures in Texas, state and local combined, goes to pay for these 80,130 police officers at 2,740 agencies.

None of this is new, but the problems have grown and little has been done to rein in unintended consequences from the explosion of law enforcement agencies and officers in the state.

Almost 16 years ago, when your correspondent was director of the Police Accountability Project at the ACLU of Texas, I presented written testimony on this topic to the Texas Senate Criminal Justice Committee, the first half of which focused on the proliferation of law enforcement agencies. Several of those criticisms still very much apply:

• Gypsy cops: Officers with histories of misconduct move from agency to agency with no consequences, particularly in smaller jurisdictions.
• The pool of quality police supervisors in Texas simply is not deep enough to manage 2,540 different agencies. (Grits' note: Today, it's 2,740 agencies.) That means many of these special agencies are being led by managers who are frankly unqualified.
• Smaller forces don't have sufficient resources for modern, high quality training or equipment for more specialized work needed to solve serious of crimes.

The second part of that testimony, for those interested, discussed Texas' string of "regional narcotics task forces" employing more than 700 officers which were ultimately defunded under Gov. Rick Perry and abolished after a six year campaign. Reading through it, the criticisms sound like those raised in the audit of the Houston PD Narcotics division!

Grits remains skeptical America can ever completely "abolish" police. But I'm downright enthusiastic about abolishing certain types of police, starting with narcotics officers, school cops, and maybe while we're at it, the dental and pharmacy boards, etc.. As the Texas Commission on Law Enforcement undergoes Sunset review, staff and legislators should consider paring back the long list of approved agencies that get their own police force. When it comes to expanding that list, we have long past the point of diminishing returns.

Three quarters of Austin PD 911 responses went to non-crime situations: National experts analyze Austin PD data for clues on how officers spend their time

Yesterday, along with our allies at the Austin Justice Coalition, the Texas Fair Defense Project, and Texas Appleseed, Just Liberty collaborated in the release of a new report analyzing 911 call data in Austin to identify how police officers actually spend their time. See the press release here and the full report here.

This document has been the talk of Grits' household for the last week. My better half saw an item Grits had mentioned in the NY Times by Jeff Asher and Ben Horvitz, titled "How police actually spend their time." The article found that, in other cities, 1% or less of police calls were for violent offenses, which accounted for about 4% of total patrol officer time. She reached out to the New-Orleans-based statisticians and, with the help of the Austin Justice Coalition (thanks, Chas!), got them to crunch Austin's 911 data. 

Here in the Texas capital, Asher and Horvitz found only a small proportion of officer time was spent on violent crime, and 78.5 percent of patrol time was spent on other-than-crime stuff, with 2.8% of their time overall being spent on violent crime. From the press release:

Major findings

● Only 21.5% of calls address crime (UCR crime and non-UCR crime), and only 0.6% of calls address violent crime.

● When a crime has been committed, an officer must write a report. Reports were written for fewer than 20% of the calls. Some of these reports may not reflect the commission of a crime (e.g. a missing person may not be a crime victim.)

● Crime related calls (UCR crime and non-UCR crime,) because they take longer than some other kinds of calls, account for 33.2% of officer time. More than 65% of officer time is spent on other activities.

● Police spend a significant amount of time on the following kinds of calls:

○ burglar alarm calls, of which 99.5% are false alarms and alone represent 6% of calls and 2.2% of officer time (this has been a problem for many years);

○ traffic related calls consume over 20% of officer time, even though 90% do not result in a report, including stalled vehicles, arriving at the scene of minor accidents and directing traffic around obstacles in the road;

○ medical calls including mental health issues. These calls were under-identified in the dataset because a MH flag on call records did not begin until December of 2019. These calls most often originate as “welfare

check,” “disturbance” or “trespassing” issues.

○ disturbance and “suspicious person” calls: these are frequently calls where nothing further is noted. These calls infrequently result in a report.

Overall, the report points to many tasks being requested of police that one doesn't need a badge and gun to perform, not when 78.5 percent of Austin 911 responses don't involve actual crimes. 

For the time being, this to me is the go-to response when critics describe some terrible crime and ask "How would we respond without police?" The answer: Only a small fraction of police time is being spent on those types of crimes! We can scale back other police activities significantly before beginning to interfere with crime response. In the meantime, let's identify the public needs being expressed in those other 78.5% of 911 calls and find other ways to resolve them, to the extent that it's government's job at all.

Five years after #SandraBland's death, eponymous Texas legislation gains new momentum

It's hard to believe Sandra Bland died five years ago today.

In my world, her death was like a starting gun. It quickly became clear her story resonated deeply, not just among black people but among Texans generally and around the wider world.

My former boss Shakira Pumphrey told me she and some of her friends became obsessed with Bland, watching old videos on the dead woman's Facebook page and scouring social media for clues about her life.

Bland's example, and Timothy Cole's, and Michael Morton's, and Anthony Graves, and a bevy of others remind us: In the world of criminal-justice reform, as often as not, stories sell policies.

Sandra Bland's death set off a whirlwind two weeks for me that culminated with most of the major players in the Texas criminal-justice reform movement meeting in my living room to hash out strategies, roles, and priorities ahead of a much-watched Texas House County Affairs Committee hearing, led by Chairman Rep. Garnet Coleman. For a sense of those priorities, see this item I wrote heading into the hearing. Broadly, they were eliminating Class C arrests, bail reform so she wouldn't be stuck in jail for lack of money, and new training and regulation at county jails related to mental health and suicide - largely recommendations from Michele Deitch about national best practices. Of those, only the jail regulation piece passed.

The Houston Chronicle last month ran an item by Taylor Goldenstein suggesting renewed energy from the George Floyd protests could finally push the Class-C arrest piece over the finish line. We've never gotten that provision through the Texas Senate in any way, shape or form. Now, though, in the #DefundPolice era, the Sandra-Bland legislation looks doggone moderate!

Politically, it may be less of a hot potato, but as criminal-justice policy reforms go, this would still be a big deal. Best guess: Class C misdemeanors account for 10-12 percent of arrests statewide, an estimate corroborated by research from Texas Appleseed and from my own group, Just Liberty. 

And in an era of partisan rancor, this legislation continues to provide a rare example of bipartisan agreement. As the state GOP convention meets this week electronically (somehow), several Senate District conventions recommended making the Bland legislation a state GOP legislative priority.

One final coda to this reminiscence: Twenty years ago, it was a white lady's story driving the narrative - a mom from Lago Vista, Texas named Gail Atwater. In 2001, the US Supreme Court handed down Atwater v. Lago Vista, and in response:

the Legislature passed a law ... disallowing arrests for most Class C misdemeanors, but the bill was among Rick Perry's first round of vetoes in 2001. In 2003, Perry vetoed another bill which would have required law enforcement agencies to have written policies stating when their officers could arrest for Class C misdemeanors, and the Legislature has not seriously addressed the issues since.

Though the legislation enjoyed bipartisan support, after Rick Perry vetoed versions of the bill twice, we all gave up. It wasn't until a) Rick Perry was out of office and b) Sandra Bland's story provided an opportunity that it made political sense to revive that effort.

Maybe in 2021, two decades after that initial veto, some version of this legislation can finally pass. I don't personally know any other, better way to honor Sandra Bland than to try to get that done.

Cowtown gets a 'defund police' vote

The folks at the Fort Worth Crime Control and Prevention District must be kicking themselves at the timing of the voters' re-up of their taxing authority, on the ballot this Tuesday. See quality coverage from The Appeal and Fort Worth Weekly.

Basically, the question becomes, do voters make this a Black Lives Matter referendum? Do they take out all the frustration expressed during the George Floyd protests when when presented in the ballot box with an explicit opportunity to "defund police"? Only time will tell.

Local defund advocates are taking the opportunity to pitch CCPD abolition with a libertarian spin. Given that supporting a sizable tax during a major recession is already a hard sell, anyway, Grits would give the opposition a puncher's chance at sneaking an upset. Between COVID and the delayed runoffs, it'll be an odd, unpredictable electorate to begin with. That's the kind of wild card that could easily result in election-night surprises.

Grits hasn't followed this local, Cowtown issue before and wishes I'd realized this opportunity earlier. It's too small a race for anyone to poll on, but if an upset occurs, the implications could be significant.

MORE (7/14): Since I'm learning about this as we go, the Texas Tribune reported on this race and informed us:

Fort Worth is the largest of more than 60 Texas cities that have what's called a crime control district. These districts — which must be periodically approved by voters — are funded by a portion of the sales tax that is different than the portion of a sales tax that often flows into a municipal general fund. Voter-approved crime control district sales taxes can only be used for crime control and crime prevention. Sales taxes flowing into a city's general fund can often be spent in any way that elected officials decide. 

Fort Worth's crime district was first approved in 1995, with the goal to tackle a crime wave that Fort Worth was experiencing at the time, as were many other cities in the country. It has funded a wide range of items for the past 25 years, from high-tech equipment to after-school programs.

As the national conversation has shifted to the social-service functions of law enforcement, it's worth mentioning that, originally, that's what this tax was supposed to fund. But lately, those sorts of programs have been de-prioritized, the Trib reported:

The tax currently funds after-school programs, domestic violence programs and anti-gang interventions. But advocates said that most of the money helps fund enforcement and infrastructure items, like the SWAT team or updating the fleet of patrol vehicles. 

“Over the years the budgeted percentage of the funds to the community groups has gone from 80% to 20%. In this proposal 80% of the funds will go to Police,” the [NAACP] said in a statement.

Also, the tax this time would be renewed for ten years, not six, as in the past.

Meanwhile, Bud Kennedy chided me for not reading this Star-Telegram editorial telling voters to shoot down this policing tax. In particular, they're concerned that "the crime district blocks the city from spending more robustly on transit." Fair enough. This wasn't a topic I'd researched, nor was even aware of before reading The Appeal's coverage. You learn something new every day.

Great Texas Hemp Hiatus combines with COVID to reveal a dirty little secret about pot prosecutions: Nobody cares if you don't make them

Politics is unpredictable and a big part of success stems from one's ability to capitalize on unexpected advantages when they arise. This requires recognizing them in real time as they occur.

Grits submits that, when it comes to marijuana policy, the passage of Texas' law legalizing "hemp" in 2019 was a game changing alteration to the Texas criminal-justice landscape; like inserting a knuckleballer 8th-inning relief pitcher who then strikes out the side. It's still a tight, close game, but suddenly, there's hope.

Readers will recall that Texas 2019 hemp law included a weird, happy accident: Legislators were told in committee that the testing to distinguish hemp wasn't available at most crime labs, but they either (more likely) didn't understand or simply didn't care (which is sort of the same thing in that job: they didn't care enough to inquire). Regardless, when the law took effect, it required prosecutors prove the THC content in marijuana seized was above a certain level. No public labs and few private ones were set up to do it.

Elected prosecutors responded in more or less bipartisan agreement (with a few outliers on both sides): By dismissing charges for low-level pot possession cases, by the thousands. Early on, the Texas Tribune estimated arrest volume for pot possession statewide had dropped by nearly 2/3. In the wake of COVID, it's surely dipped much lower than that.

COVID gave judges across the state an incentive to scrub their dockets with an eye toward releasing everyone who could be released, and pot smokers definitely fall into the low-public-safety-risk category. So judges didn't want to see these cases, prosecutors had means to dismiss them, and if police wanted to keep arresting on these charges, the cases would go nowhere.

That's the dynamic underlying Austin PD's weird recent announcement that it finally would follow guidance given to it by the City Council last year and stop making arrests for marijuana cases that couldn't be prosecuted. Two things: First, the department should have altered their policy as soon as they were told and maybe the council wouldn't be as ready to oust the chief. Second, the County Attorney had said he wouldn't prosecute without testing; the City Council had declared no city money could be spent on testing; so Manley really had no choice. Honestly, it's bizarre and concerning that APD continued to make arrests as long as they did.

There has been much grumbling, weeping, and gnashing of teeth, but this dynamic, with the same result, has repeated itself across the state in big departments and small. Even 30+-year police vets like Chief Manley eventually have had to come to grips with the new "can't be prosecuted" reality for low-level pot possession cases. And as this new reality takes hold, there's a dirty little secret that's being whispered in the corners and the back rooms in courthouses, police stations, and city-council chambers around the state:

The sky didn't fall!

Let the record show: When Texas, for all intents and purposes, stopped prosecuting low-level marijuana possession cases beginning fall 2019, the result was a big nothing burger. It was better for the 40-60,000 people per year who won't catch charges (40,000 would be if prosecution rates were down only 2/3, but Grits suspects, after COVID adjustments, it's now much lower than that).

Otherwise, police were focused on other duties, jails avoided extra prisoners during COVID, court case loads were reduced, taxpayer-funded hemp testing was (largely) avoided. Tens of thousands of Texans avoided a criminal record. Commercial hemp was legally harvested and sold. And nobody cared. Not really. There has been no hue and cry. If anything, the hue and cry favors pot legalization.

What problems has it created to stop prosecuting pot cases, even though marijuana prohibition technically is still on the books? Grits struggles to think of anything, and I've seen none of the usual suspects complaining about a resulting crime wave, etc.. How about you, Grits readers? Many of you have an up-close-and-personal relationship with the system: What problems were created by declining pot prosecutions? What benefits have you seen?

Virtually all conversations I've had with stakeholders on the topic emphasized the practical benefits of what Grits is calling the Great Texas Hemp Hiatus: The change reduced caseloads across the board for an over-burdened system that still has plenty of more important things with which to occupy itself. This bizarre reality, part of the stew of COVID-era "new normal" to which we all must grow accustomed, may revive prospects marijuana-related legislation in Texas that Grits thought couldn't pass in the near term.

After the 2019 session, it was clear Lt. Gov. Dan Patrick and probably also Gov. Greg Abbott simply would not support "decriminalization" policies and would actively oppose legalization schemes. There appeared to be no viable path forward. Now, both those men have presided over a period when pot prosecutions plummeted in Texas, and the public basically yawned in reaction. 

In an extremely tight budget session, what is more likely? That state leaders will fork over money so DPS has capacity to test everyone's bag of weed when the cops pick them up? Or that they'll acquiesce in the status quo and either leave the dysfunctional statutes in place or formally decriminalize marijuana? I'm simply not hearing anyone who has a problem with Texas' new normal on pot. Who would spend money in a red-ink budget year to re-start up prosecutions?

Again, the sky didn't fall. If you want to know what Texas would look like if it stopped prosecuting for low-level pot possession, look out your window.

In the wake of the courts' COVID slowdown, much less the Great Texas Hemp Hiatus, plus the energized focus on criminal-justice reform in the wake of the George Floyd protests, it feels like the politics underlying marijuana in Texas has shifted underneath our feet.

The Hemp Hiatus provided an unexpected opportunity for Texas politicians to get comfortable with the idea of simply not prosecuting marijuana possession. Now that they're used to a new normal, how many will want to go back?

Houston PD should shut down Narcotics Division based on problems revealed in (redacted) audit

Readers of this blog know Grits is a solutions-oriented guy, so stick with me because I've got one here.

The audit of the Houston PD Narcotics Division was finally released last week, albeit with officer names annoyingly redacted.

Sam Walker, an old-school criminologist from the University of Nebraska who's seen a lot of dysfunctional agencies in his day, declared that, “The number and variety of errors looks like an operation completely out of control,” reported St. John Barned-Smith in the Houston Chronicle.

State Rep. Gene Wu held a press conference to decry the redactions and declare the audit a "whitewash." But for a whitewash, I thought it aired a lot of dirty departmental laundry. 

Having now read the document, IMO Sam Walker called it: What we learned was that the Houston narcotics squad was an essentially unsupervised. No one was watching the store.

This audit doesn't provide a smoking gun to prove that other officers in the division abused their positions in the way Gerald Goines and Stephen Bryant allegedly did. But it showed that, if that were the case, processes were so lax that supervisors likely would never have caught them. Houston narcotics officers have grown accustomed to operating in a system with virtually no meaningful oversight over their work.

The HPD narcotics division includes about 175 officers broken out into squads of 8-12 officers. The audit analyzed cases from the two officers at the center of the inquiry - Gerald Goines and Stephen Bryant - as well as batches of cases from several other squads, revealing hundreds of problems with the casework.

It's filled with juicy tidbits, especially about Goines and Bryant. Goines most common casework error should have been a red flag: "failed to tag the drugs into the evidence box at the end of his shift 48% of the time."

Goines and Bryant also both routinely committed to informant payments without supervisory approval and got payments approved after the fact, which takes the supervisor out of the decision making loop and is contrary to policy.

About a third of the time, case files included no "Case Review Sheets." This is subtly important because it's how the police bureaucracy exercises supervisory control over the casework. Both a sergeant and a lieutenant are supposed to sign off on that document to ensure the investigation's completeness. But a third of the time, it doesn't exist. This was true across squads, to a greater or only slightly lesser extent.

When the casework was there, some squads had more than 25% of their cases dinged for lack of "thoroughness." Reports and case tracking were routinely late - sometimes many months late. 

The whole thing was a byzantine mess revealing few systems in place that anyone felt obliged to adhere to, and an overweening focus on the lowest level drug busts, mainly in black and brown communities. If you're a cop in the Narcotics Division and weren't doing crappy work, you likely were sitting next to someone who was and never said anything. There's not much to salvage here.

So here's my solution: Why not simply eliminate the HPD Narcotics Division altogether? Absorb those officers into other work (we're always hearing HPD is short-staffed, anyway) and stop pursuing low-level buy-bust cases in minority neighborhoods as a primary enforcement strategy. 

There's strong evidence that drug enforcement in Houston is discriminatory. The datasets aren't exactly a match because some drug arrests are made outside of the Narcotics Division. (See the correction below.) But according to the Texas Criminal Justice Coalition's Harris County data dashboard, between Jan. 1, 2016 and May 2018 (the last month available), Houston PD was responsible for charges against nearly 1,000 people with possession of a controlled substance either less than a gram (904) or one to four grams (87). Of those, 75.78% of the cases involved black defendants. 

Indeed, these days, when you send people to prison for a drug crime, you're risking their exposure to the COVID 19 virus. We've already seen examples of Texans sent to prison for short, treatment-focused sentences who died of COVID while they're there.

Grits' advice to Mayor Turner and Chief Acevedo: Cut your losses. Trying to solve the management problems demonstrated in this audit would require shifting more cops away from police work and toward paper pushing, and for what? Who imagines that these penny-ante drug cases are contributing significantly to public safety? Better instead to eliminate that division and focus on other, less corruption-prone public-safety strategies with a better record of success. 

When you find yourself at the bottom of a hole, Will Rogers quipped, the first thing to do is stop digging. That advice resonates here. Between hundreds of innocent people set up over faulty field tests or narcotics officers making up informants in cases (including potentially George Floyd's!), drug enforcement in Houston has been a constant source of managerial grief  and heartache.  Why not just have those 175 officers spend their time doing something else? Why not?

CORRECTION: Thanks to Dr. Katharine Neill Harris, a drug-policy researcher from Rice University, for catching an error. In querying TCJC's Harris County Criminal Justice data dashboard, I somehow dramatically understated the volume of drug arrests in Houston. From January 1st 2016 to December 31st, 2018, there were in fact 15,754 possession cases made by Houston PD for less than four grams. Of those, 56.5 percent of defendants were black, according to the TCJC dashboard. Grits apologizes for the mistake. Not sure what happened there.

Laws on rioting an anachronistic snapshot into Texas Legislature's anti-civil rights mentality in 1965

Grits has heard of people reading someone the Riot Act, but until recently had never read Texas' own riot act for myself.

On the Reasonably Suspicious podcast the other day, Mandy Marzullo and I discussed Texas' laws on "riots," which were invoked via dozens of arrests around the state, including "several dozen" in Fort Worth. In Dallas, protesters have sued to challenge the constitutionality of the law.

First, some historical context. Texas' offense of "Riot" was created in spring 1965, reacting to national events like passage of the the Civil Rights Act in 1964 and the Harlem Riots later that year (begun after police shot a young black man). The famous 1965 Watts riots wouldn't come until later that August, when the Legislature was no longer in session.

Regardless, by then Texas had a long history of repressing black-liberation politics, often by dubbing the speaker a "Communist" to justify quashing them. Grits recently recounted examples of repression of civil-rights activism in the '50s and '60s in northeast Texas, including the intervention by Gov. Price Daniel in 1960 to redbait black leaders and fire all Wiley College faculty members who had not opposed a visit from Dr. Martin Luther King, Jr.. Texas state political leaders were serious about fighting communism, conflating that with desegregation to a degree that seems nonsensical with the clarity of 20/20 hindsight. 

By 1965, John Connally was governor. But Texas' Jim-Crow era political coalitions hadn't yet changed, much less the culture of its governing institutions. Connally's opposition to the federal Civil Rights Act had spawned large protests in Austin before he modified his position. Regardless, many conservative Democrats in Texas agreed with him the first time and weren't going to let any of that long-haired, protest stuff infect our fair state with communist propaganda about black equality, etc..

That was the ideology and culture being projected by the Texas Legislature with the creation of the "Riot" offense in the Penal Code, as well as the expansion of police power in Ch. 8 of the Code of Criminal Procedure to "suppress" riots.

These statutes were an expression of an historical moment and have never been altered since. Today they're anachronisms and, like an old, racist monument, it's time to resign them to Trotsky's "dustbin of history," but with a legislative vote rather than a mob pulling them down.

The Texas Penal Code defines a "riot"in such a way as to give police maximum arrest discretion in any situation involving 7 or more people. Here's the statutory definition:

Sec. 42.02.  RIOT.  (a)  For the purpose of this section, "riot" means the assemblage of seven or more persons resulting in conduct which:

(1)  creates an immediate danger of damage to property or injury to persons;

(2)  substantially obstructs law enforcement or other governmental functions or services;  or

(3)  by force, threat of force, or physical action deprives any person of a legal right or disturbs any person in the enjoyment of a legal right.

So if an "assemblage of seven or more persons" resulted in conduct that, by "physical action ... deprives any person" of "the enjoyment of a legal right," then they're engaged in a riot under Texas law.

Notably, under the statute, "It is a defense to prosecution under this section that the assembly was at first lawful and when one of those assembled manifested an intent to engage in conduct enumerated in Subsection (a), the actor retired from the assembly." But that's just a future defense, it doesn't keep you from getting arrested in the first place!

Can you think of any behavior which truly constitutes "rioting" that isn't already criminalized somewhere in the law? Disorderly conduct? Property damage? Physical altercations? Obstructing a peace officer? IANAL, but creating an uber-offense that lets police indiscriminately round up everyone in a given location to me ignores the need for particularized accusations. I'm glad someone is litigating it.

For that matter, on the podcast, Mandy wondered if there were any activity seven people could engage in in a public setting that might not disrupt others' enjoyment of their rights? She also suggested the law is "so poorly written that it is essentially unenforceable."

As such, the law gives police maximum authority in the moment, almost on the assumption that charges will be dismissed later. In all cases I've seen stemming from the George Floyd protests, that appears to be what happened. (You might beat the rap but you won't beat the ride.)

An open-ended penal statute designed to empower police officers, regrettably, isn't that unusual in Texas. This one was passed 55 years ago but there were probably other examples passed in every session since.

What IS extraordinary is the array of additional police powers granted to officers in Chapter 8 of the Texas Code of Criminal Procedure to "suppress" riots when they happen. First, individual officers are authorized to convene their own counter-mob, if necessary supplemented by the military, to combat the first mob:

When any officer authorized to execute process is resisted, or when he has sufficient reason to believe that he will meet with resistance in executing the same, he may command as many of the citizens of his county as he may think proper; and the sheriff may call any military company in the county to aid him in overcoming the resistance, and if necessary, in seizing and arresting the persons engaged in such resistance.

Officers must urgently address these 7+ person riots with the full force of law:

Whenever a number of persons are assembled together in such a manner as to constitute a riot, according to the penal law of the State, it is the duty of every magistrate or peace officer to cause such persons to disperse.  This may either be done by commanding them to disperse or by arresting the persons engaged, if necessary, either with or without warrant.

And they operate under a special use of force standard that's different from those articulated elsewhere in the statute. Instead, the Legislature gave us this super-vague alternative:

The officer engaged in suppressing a riot, and those who aid him are authorized and justified in adopting such measures as are necessary to suppress the riot, but are not authorized to use any greater degree of force than is requisite to accomplish that object.

So, to summarize, a "riot" is seven or more people doing anything that might be construed as disturbing any other person in the enjoyment of a legal right. And if there is a "riot," then a police officer can round up a posse of available folks (perhaps including the ones whose enjoyment was disturbed in the first place) to suppress the riot using whatever degree of force "requisite" to accomplish such suppression. This was a horrific thought in 1965, a half-decade before the UT-Austin football team would integrate. Today it is ridiculous.

These special rioting statutes are unnecessary. The massive, militarized response by police to the George Floyd protests demonstrated that law enforcement is more than capable of crushing the protests themselves, Tienanmen-Square-style, if they chose to do so. Who today of any political stripe wants to give officers authority to round up civilian mobs, much less to violate protesters' rights by arresting them for "rioting" offenses that can't be prosecuted?

If anything, officers' special powers should be replaced with special duties to protect protesters' First Amendment rights. Texans wouldn't be one iota less safe, and probably would be even safer, if all these old rioting statutes were just repealed.

San Antonio can't fire cops who use the N-word or feed homeless people feces: Accountability systems in Texas civil-service cities broken

In San Antonio, recently, a fired police officer was reinstated by an arbitrator after repeatedly using the N-word to address a black suspect while handcuffing him. The head of the police union said it was no more offensive than the mayor publicly using the word, "goddamn." I suspect that's a minority viewpoint.

San Antonio has emerged as the premier case study demonstrating that Texas' civil-service system is broken: 70% of police officers fired by the chief end up back on the force. The city's union-friendly police contract is being touted nationally as an example not to be followed.

The city thought it'd gotten a monkey off its back when it finally was able to fire Matthew Luckhurst and make it stick. They'd done so once after he fed dog feces in between two pieces of bread to a homeless man, but an arbitrator let him back on the force. Later, he was fired again for shit-themed misconduct after spreading a brown substance around a women's restroom to harass a pregnant colleague. This time, just last month, the arbitrator upheld his firing.

But no sooner was Luckhurst off the force than Officer Tim Garcia gets put back on after using the N-word. SAPD appears doomed to remain the state's poster child for the broken police disciplinary system in Chapter 143 of Texas Local Government Code. (See suggestions here for fixing that chapter.)

What's more, when SAPD does fire bad cops, they may still end up working at one of the smaller agencies in Bexar County. Reporter Emilie Eaton identified three fired SAPD officers (including Officer Garcia), who all ended up working as reserve officers at the Leon Valley PD.

Eaton noted that, under current law, "the Texas Commission on Law Enforcement, the state agency tasked with licensing and training police officers, cannot revoke an officer’s license short of two dishonorable discharges, a criminal conviction or a probated sentence." The story described how Texas' laws letting cops fired for misconduct remain in the profession are especially lenient:

“Texas does not align with most other states that have decertification processes for police officers,” said Roger Goldman, a professor at the Saint Louis University School of Law who has studied police licensing for more than 30 years.

“Around two-thirds of states permit decertification, even if the officer hasn’t been convicted of anything,” Goldman said. “The action itself — the commission of the conduct, rather than the conviction for the conduct — would have led to an administrative hearing.”

Expanded decertification powers are something the 87th Texas Legislature could do something about. The Texas Commission on Law Enforcement is up for "Sunset" review next year and the agency could use some focused attention. In general, TCOLE needs more staff and more power: They're understaffed to perform their current duties and hamstrung by union-friendly statutes from holding bad cops accountable. They could do more if the Legislature empowered them to do so.

In the meantime, if you want to see how Texas police civil service code prevents departments from holding bad cops accountable, look no further than San Antonio. The stories may sound like satire - getting back on the force after feeding a homeless guy a shit sandwich; N-word-using officer reinstated - but this is really how the police department in Texas' second largest city is run.

Houston PD decides public can know when police might injure or kill them

For years, Houston PD has kept its use of force policy secret, abetted by a series of Texas Attorneys General. Most of their General Orders were public, but the use of force policy was largely redacted. While the AG upheld Houston's request to keep the policy secret (an example of the transparency losses suffered when the Legislature codified Holmes v. Morales in 1997), to my knowledge, few other departments had followed their lead.

Grits always thought that's because keeping the policy secret didn't make sense. If nothing else, I found it unseemly and a little rude that police would go to the trouble of writing down a policy that basically tells the public, "Here's when we will hurt you" and then refuse to share a copy with them.

"No, I won't tell you the circumstances under which I'm trained to kill you, but don't worry, you'll know when I do!"

Now, the policy has been un-redacted and is publicly available, reported the Houston Chronicle last week. Before releasing it, the department made mostly minor, inconsequential revisions, the paper reported, including changing the policy's name from "Use of Force" to "Response to Resistance." (Austin and Dallas have done the same thing, likely many others.)

The "response to resistance" terminology is verbal judo being deployed on behalf of authoritarianism, an Orwellian re-framing in which all police use of force, by definition, responds to "resistance" and is therefore justified. It comes off to me as a little smarmy. If you don't like "Use of Force," OTOH, some scholars suggest the title, "Police Violence," instead.

Grits hasn't had time to examine Houston's policy in detail, but I know there are local activists who've been waiting to see it for many years. Releasing this policy was a small but important step; it's hard to debate appropriate police practices when they are secret.

TCOLE screwed up new racial profiling data required in 2017 Sandra Bland Act

Many kudos to the Houston Chronicle's Eric Dexheimer for identifying a big screw up by the Texas Commission on Law Enforcement regarding racial-profiling data collection by Texas law enforcement agencies.

In 2017, the Texas Legislature expanded the data collected to include after-stop data involving arrests, searches, contraband discovered, and use of force. But when the Texas Commission on Law Enforcement went to implement the statute's requirements via rule making, they excised the "racial" data from the racial profiling reports, making it impossible to use them to assess discriminatory practices.

At first Grits feared we may have screwed up the language in Rep. Garnet Coleman's bill, but at this point all agree the errors arose in the agency rule making process.

By all appearances, this was a good-faith error, and TCOLE has pledged to fix the problem. Normally, Grits might be more skeptical, but TCOLE's chief, Kim Vickers, operates an unusually open and accountable shop, in my experience. Considering they're fixing the problem as soon as it was identified, I'm inclined to afford him the benefit of the doubt. (Since the agency is currently up for "sunset" review at the Legislature, they have lots of incentive to be cooperative.)

Notably, Just Liberty last year analyzed this data as soon as it came out to help construct arguments for limiting arrests for Class C misdemeanors. The 2017 Sandra Bland Act mandated information on Class C arrests and use of force at traffic stops be reported for the first time, and we reported that data by agency. We found Waco PD led the state in Class C misdemeanor arrests at traffic stops, arresting more than 4.5% of driver stopped for these lowest-level offenses. Houston PD used force most frequently, at about one out of every 188 stops.

This was a short turnaround project - the initial data only appeared mid-session in March. Our goal with that analysis was to counter the opposition's argument that arrests like Sandra Bland's are infrequent, so Just Liberty's report focused on total arrests and use of force incidents without attempting to break them out by race. Apparently, nobody else used the dataset until Eric began poking around, so no one discovered the omission.

It's disappointing these data aren't crunched more often, particularly by local reporters and policy makers overseeing local law-enforcement agencies. Grits must admit, I put a lot of stock in transparency and the power of data to confront significant social problems. But data don't matter if no one is using them.

That's even more frustrating because Texas' so-called racial-profiling data are now particularly robust. Once TCOLE fixes its categorization problem, this data set will become one of the most comprehensive of its type, providing policy makers a statistical window into traffic-enforcement activities that constitute a huge proportion of police interactions with the public.

Particularly when it comes to vehicle searches, the ability to tell whether contraband is found will let researchers and police supervisors drill down to discover discriminatory practices. The old data might show black folks were searched more often, but shed no light on whether that was justified.

These sorts of analyses aren't as viscerally compelling as, say, video of a Minnesota cop with his knee on George Floyd's neck. But they help counter arguments that discriminatory policing is confined to "isolated incidents." And they provide policy makers more aggregate information about what, exactly, their officers do in the field than any other source available.

A primer for new, local police-reform advocates in Texas

“Never doubt that a small group of thoughtful, 

committed, citizens can change the world. 

Indeed, it is the only thing that ever has.” 

- Margaret Mead

On the Reasonably Suspicious podcast this week, the Austin Justice Coalition's Chas Moore and I talked about the recent wave of Black Lives Matter protests across Texas, including in small towns and parts of the state without a significant history of civil-rights activism. In particular, we discussed how local reformers in smaller jurisdictions outside the big cities might go about seeking change.

Let's take a moment to elaborate on this theme and suggest how local Texas advocates might go about seeking police reform, wherever they live. As discussed on the podcast, police reform is a long-term project. There are no quick fixes, either #8cantwait or otherwise. OTOH, there's no time like the present to start. The advice below is somewhat prescriptive and intended for folks launching their political efforts in an environment where no prior infrastructure exists.

Identify basic priorities

You don't have to decide everything at once, but it helps to have some starting goals that relate to your local situation to organize around. Police will be quick to tell you, "we already do that" whenever you demand something, so always measure their words against their actions. See below for how to research individual cases of police misconduct. Once you've reviewed the details of police shootings in your area (some of this is online and easy to look up) there may be more specific demands that emerge from those cases. But here are a few ideas Texas-based advocates might consider as near-term goals:

• divest money from the department and use it to fund alternatives for mental illness, drug addiction, homelessness, etc..
• change use of force policies to emphasize de-escalation and proportionality
• demand the department collect and regularly release data on all use of force episodes
• stop arresting people over Class C misdemeanors, which under Texas law are punishable only by fines, not jail time (this is something Republicans and Democrats both have in their state party platforms but police unions oppose)
• stop arresting people over Class B misdemeanors for which officers have discretion to write citations (including driving with invalid license, marijuana possession, and several less common offenses). Some agencies implemented this because of COVID; the policy should be made permanent.
• eliminate unnecessary military equipment

I could think of dozens of other possibilities, but these all seem to coincide with the zeitgeist of the moment. The common theme is reducing use of force both by changing force policies and scaling back the departmental footprint to limit when force might be used. They're all reasonable suggestions that can't be dismissed as radical or anti-cop. (For some folks, Grits acknowledges, that may make them too moderate.) And of course they're just a starting point. Inevitably, all local agendas will diverge in their particulars if advocates are doing their jobs well.

Research local cases

The best advocacy campaigns involve storytelling. When stories have a compelling "moral" and it supports your agenda, they can frame the terms of debate in a way that data and logic can never quite accomplish. While the narrative surrounding George Floyd's death in Minnesota may have launched the recent protests, local police understandably will insist that criticisms of their officers be rooted in local history. So, how do you find local stories? Here's how to get started.

Texas maintains records about all police shootings, deadly or not, since 2016. A separate database compiles reports on all deaths in custody, including deaths in police custody and in prisons and county jails, going back to the 1980s. Research these to identify problematic examples. (For analysis of these datasets, visit the Texas Justice Initiative.) Once you get victim names, search local media archives, as well as social media outlets, to see what if anything was published about them. Have any family members been particularly outspoken? You may want to talk to them.

File Public Information Act requests with the police department for police misconduct records. If you're in a jurisdiction which has adopted the state civil service code (Chapter 143 of the Local Government Code - about 73 agencies), then you'll only get summary information on cases where an officer was suspended without pay. In most jurisdictions, though, you'll be able to get information about lesser punishments like written or oral reprimands as well as complaints against officers.