Last week, the National Constitution Center hosted a symposium bringing together contributors from The Battle for the Constitution website—a joint project from the National Constitution Center and The Atlantic that features essays exploring current constitutional issues from all perspectives. Today we’re sharing the first panel of the symposium: a conversation on the constitutional dimensions of policing and protests. Jeffrey Rosen was joined by former Philadelphia and Washington, D.C., Police Commissioner Charles Ramsey, as well as First Amendment expert and law professor John Inazu, and policing expert and law professor Tracey Meares.
This program is presented in partnership with The Atlantic and in conjunction with The Battle for the Constitution website. It is also made possible through generous support from the John Templeton Foundation.
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PARTICIPANTS
John Inazu is the Sally D. Danforth Distinguished Professor of Law & Religion and professor of political science at Washington University in St. Louis. His books include Liberty’s Refuge: The Forgotten Freedom of Assembly and Confident Pluralism: Surviving and Thriving Through Deep Difference. Inazu is the special editor of a volume on law and theology published in Law and Contemporary Problems, and his articles have appeared in a number of law reviews and specialty journals. He has written broadly for mainstream audiences in publications including USA Today, the Los Angeles Times, and the Washington Post.
Tracey Meares is the Walton Hale Hamilton Professor of Law and Founding Director of The Justice Collaboratory at Yale Law School. She is the author of two books, including Legitimacy and Criminal Justice: A Comparative Perspective and Urgent Times: Policing and Rights in Inner City Communities. Meares has worked extensively with the federal government having served on the National Academy of Sciences Committee on Law and Justice, a National Research Council standing committee and the U.S. Department of Justice, Office of Justice Programs Science Advisory Board. In December 2014, President Obama named her as a member of his Task Force on 21st Century Policing.
Charles Ramsey spent 48-year law-enforcement and is the former Police Chief of Washington, D.C. and the former Police Commissioner for the City of Philadelphia. In January 2017, he became a regular CNN contributor. He is also the president of Major Cities Chiefs, where he created the Leadership Executive Institute to help prepare police chiefs of the future. Ramsey also serves as an adjunct professor at Lewis University and Northwestern University. He served as co-chair of President Barack Obama’s Task Force on 21st Century Policing. He partnered with the National Constitution Center and the Philadelphia Police Department to create the Policing in a Moer Perfect Union program, designed to give police officer recruits a historical understanding of the constitutional rights and restrictions that are defined in the Bill of Rights.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
ADDITIONAL RESOURCES
- The Battle for the Constitution
- Tracy L. Meares and Tom R. Tyler, The Atlantic, "The First Step Is Figuring Out What Police Are For"
- John Inazu, The Atlantic, "America's Most Under-Appreciated Right"
This episode was engineered by Greg Scheckler and produced by Jackie McDermott and Tanaya Tauber.
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jackie McDermott: [00:00:00] Welcome to Live at the National Constitution Center—the podcast sharing live constitutional conversations hosted by the National Constitution Center. I'm Jackie McDermott, the show's producer. Last week, we hosted a symposium bringing together contributors to The Battle for the Constitution—a website that features essays exploring current issues from a constitutional perspective.
The site is a joint project from the National Constitution Center and The Atlantic. Today, we're sharing part one of the symposium, a conversation on the constitutional dimensions of policing and protests. National Constitution Center President Jeffrey Rosen was joined by former Philadelphia and Washington DC police commissioner, Charles Ramsey, as well as freedom of assembly, scholar, John Inazu and policing expert Tracey Meares. Here's Jeff.
Jeffrey Rosen: [00:00:51] Professor Meares, Chief Ramsey and professor Inazu. Thank you all so much for joining. Thank you. Thanks for having us. Good to be here. Thank you. Let's jump right in Tracey Meares, as you have written so powerfully over the years that we need to answer the question of what is policing for, and you have taught us that policing is most effective when it is for legitimacy trust, building and procedural fairness. Tell us more about that. Counsel and how it applies to our current vexation of the past few months.
Tracey Meares: [00:01:23] Sure. Jeff, thanks so much. So as I'm sure you'll also hear from Chief Ramsey, the task force in which we set, Chief Ramsey was actually co-chair of President Obama's task force, with Lori Robinson. The first pillar of our report looked to the importance of establishing public trust and legitimacy as a key way of understanding the purpose of policing and how it should be carried out. we said a couple of things in that report in the first pillar, the first is that, policing agencies and the members of those agencies who carry it out, ought to think of themselves as guardians of the communities that they serve.
Rather than warriors. And so the idea that they would be warriors against crime and that anything that they do to reduce crime would be self justifying is wrong. It's inconsistent with promoting, trust and legitimacy. and another thing that we said that I think is relevant to the current moment is that in order to achieve these ideas of trust and legitimacy and procedural fairness, it's incredibly important for agencies to acknowledge.
Their role in the past and wrongdoing and discrimination and the, and what they're also doing currently. And I think one of the ways to understand what we're seeing in terms of demonstrations and uprisings, is that people are forcing the issue publicly. I'm sure. John is also going to be talking about that too, in terms of demonstrations and, and free speech are forcing the issues of having this reckoning take.
Place, and, and our attempt to refashion, turn around or even transform, policing as we know it. you know, there's a lot to say about how to get to the, there that people are talking about right now from here. But I think to start with those, initial comments I think is just where ill start.
Jeffrey Rosen: [00:03:30] Well, that is a great place to start and thank you for it. And chief, maybe you can amplify and also tell us how to get there. It's an extraordinarily difficult time for policing and for America, given this fraught climate, how can we get to the place that you and Tracey have both identified a place of trust and legitimacy and procedural fairness and concretely, you know, from the officer's perspective, how would you persuade officers and also citizens to help us get there in this current climate.
Charles Ramsey: [00:04:01] Well, first of all, thank you for inviting me, tonight. I couldn't agree more with, with Tracey. how do we get there? That's an interesting question. And I'll answer it maybe in a little bit of a different way, not being a lawyer or a constitutional scholar or just a cop.
So I want to look at it from a police officer's perspective or at least a police chief's perspective. you know, we've been talking about trust and legitimacy and as Tracey mentioned, that was the very first pillar. And that was for a reason because without trust and legitimacy, nothing else really happens.
I mean, you really can't get anything else accomplished if you don't have the trust of the people you serve. And if they don't see you. As being legitimate, a person who really has not only the legal authority, but you know, the moral authority to be able to tell them what to do. And I've given that some thought, you know, I have participated in a lot of conversations recently. Especially because of some of the horrific things that we've seen on television relating to police officers and use of force.
And I hear police chiefs, and I've done this myself. use the term well, you know, Vast majority of our officers are good. I do believe that. And it's just a few bad apples that are causing a problem. Well, apples fall from a tree. And if you have a lot of bad apples, you need to check the tree to make sure it's not diseased.
You need to prune the tree so that in the future, you'll produce more good apples than you do bad apples. I mean, and I think that's what we have to do in policing and stop making excuses. There are systemic issues that exist in our profession and we will never gain the trust and legitimacy in the eyes of people, unless we acknowledge those, those problems, those issues, and really work toward correcting them.
Is there a racism in policing? Absolutely. There is, but why wouldn't it be? It's everywhere else in our society. And that's where we draw from doesn't mean that we can't take steps to try to fix it, but you know, to try to deny that we don't have a problem with racism with implicit bias and things of this nature, is in my opinion, ridiculous, power and authority.
We, a lot of police officers do abuse, their power and authority, but stop and think about it for a minute. We hire 20 and 21 year olds. We give them a badge. We give them a gun. We put them in a, a real nice crown Vic with lights and sirens. And then we wonder why we have problems out of 700 or 800 hours of training that a recruit gets in the police Academy.
How many hours are devoted toward dealing with the issue of how you handle power and authority? That's just been given to you. The academies that I have been in the answer is zero. Absolutely none. And we need to talk about that and not in terms of what we've seen on these viral videos. It's the little stuff that, to me, prevents us from gaining the kind of trust and legitimacy
we need. Parking in a no parking zone when you're not on a call for service, for an example, running a red light, why? Because you can, as opposed to actually going on a call, the same laws that we ticket and cite people for, we violate. And so if we do that and people see that it certainly starts to, it does erode the trust and the legitimacy that we all need truthfulness.
I mean, we've had police officers that are on a Brady list, which means they can't testify in court. We have our police officers look at the Laquan McDonald, shooting Im not talking about the shooting, the reports that officers submitted. That were totally inconsistent with the video evidence that was there.
I mean, you have to be able to, integrity means everything. Integrity is one of the core values that as police, we have to live by. And so when we talk about legitimacy and trust, you know, an eight hour training in fair and impartial policing is not going to change that. Nor will a training and procedural justice change that, your behavior changed.
We have to change the way we think the way we act, and we have to create a new culture where we're holding one another accountable in policing. We shouldn't need a video to tell us that something on the street was, was not appropriate. It was wrong. The officers at the scene, know it. And they need to be able to intervene, not just in the major cases, like in the George Floyd situation, but even that minor case where you're sitting in a car and your partner's driving and he blows the red light and you're sitting there and you say, why did you do that?
Well, I, you know, no, we don't violate the law. We enforce law. We don't violate that. We don't violate that. Violate the law. That's a duty to intervene as well. And so it's the small stuff, as well as the big stuff. And when we change that, then we start to change culture. Then we start to change attitudes that people have toward us.
I mean, there are obstacles in a way, unions and all that sort of thing, but there's a lot of things that we can do. And if we don't do it, someone's gonna do it for us. It's either going to be through legislation or it's going to be, or the courts will decide for us that should not happen. Police leaders need to step up and they need to do the things that they have to do.
We need to have the tough, difficult, embarrassing conversations that we need to have. So remove the veil and deal with these issues and deal with them and do it as fast as we possibly can. And just change the way we were viewed in this country. I'm sorry to kind of go on and on about that, but I just think that if we don't do that first, then the other things will never really take root.
Jeffrey Rosen: [00:10:00] Wow. What a powerful statement of the need for departments to enforce self accountability and to ensure that a culture of obedience to the law is pervasive. And it's very galvanizing and thank you for sharing it.
John Inazu, there's much to ask you, but you've written a bunch of really phenomenal pieces for the battle for the constitution site about the first amendment, right of assembly and petition. And I can't help sharing if this isn't a bad technological experiment, your amazing essay. For the interactive constitution.
So I'm going to try to do share screen right now and friends. Here we go. And I'm going to share and look, I haven't told you, friends who were watching about the National Constitution Center's interactive constitution. It will blow your mind. We're going to click on the first amendment. Click on the assembly and petition clause.
And then here we have John Inazu and Burt Neuborne nominated by the Federalist Society and the American Constitution Society with a thousand words about what they agree, the core assembly and petition right means, and then separate statements by John and Bert about what they disagree about and multiply that by all 80 clauses of the Constitution.
It is an astonishing learning resource. That's gotten 30 million hits since it launched in 2015 and is just an endless source of. Of learning. So, John, in your essay, both your common statement and the separate statement, you say the Supreme court really hasn't decided an assembly and petition case since the early 1980s and has relegated assembly cases to the free speech doctrine, which has watered down in the right.
I'm going to stop sharing screen now so everyone can see, but, you also have argued in your, Atlantic pieces that under well-established law, local authority and law enforcement can restrict assemblies, that threaten imminent incitement to law breaking and violence. You say there's a good case to be made the Tiki torch marches in Charlottesville, Virginia transgressed, those bounds in 2019.
This is a lot to throw at you, but everyone is i'm sure wondering as I am. Are there cases ever since the protests of George Floyd's murder began, where the police response has violated, constitutional grounds. And I'll just start by asking you about whether you think what happened in Lafayette Square was consistent with the first amendment or not. And then you can expand out from there.
John Inazu: [00:12:22] Well, first of all, thanks for having me, Jeff. And it's great to be with all of you, easy answers to those questions. Yes. There have been cases and, no Lafayette Square was not in any way in accordance with the first amendment.
Let me take a step back though and situate this and just try to explain why this is complicated. And I think there's both a constitutional and a criminal law dimension to this. So start with the constitutional dimension, you referred to the right of assembly and petition, which is how we've laid it out in the series at the National Constitution Center.
But actually and importantly, these are two distinct rights. There is the right of assembly. And there's the right to petition the government. And about 120 years ago, the Supreme court got that wrong and conflated the two into one right assembly for purposes of petitioning the government. If that's right then the assembly right, is actually quite narrow.
If you can only assemble to petition the government, there's not much assembling happening. It turns out the Supreme court was wrong. A couple of generations of scholars were wrong. Actually the assembly right is more robust. It's not limited to petition, but in the meantime, Supreme court doctrine introduced concepts, including the right of association in 1958.
And then really a free speech kind of framework to address protests and other gatherings in the 1970s. And the aggregate result of those doctrinal interventions means that the fullness of the right of assembly has really been forgotten in constitutional terms. So the protections of the group are relegated to this right of association, which does actually quite different work.
And in the protest space, we resolve this fully under free speech doctrine. And we talk about things like time place and manner restrictions and ample means of alternative communication. But when you reduce protest to just speech, you miss actually quite a bit of what's happening in the protest, all the other expressive dimensions, protesters express through silence, they express through solidarity, they express through moving or not moving and all kinds of things.
And when you just focus on speech, you miss all of that. And unfortunately, constitutionally that's where we've gone. So that's one side of the equation that's really hard. And then the other side on the criminal law side is how protests are governed, largely through laws against unlawful assembly.
It makes sense that the corollary to assemblies is unlawful assembly, the challenge with unlawful assembly is it's what's called an inchoate crime. It's a partially completed offense, like an attempt that points toward a target offense of usually riot in most jurisdictions. And so what law enforcement has to do on the ground is discern or figure out when a peaceful assembly inches toward something that's not peaceful or that's unlawful that then inches toward a riot.
That's incredibly hard to do, especially in very dynamic situations like protest situations. And yet, law enforcement is tasked with the responsibility of knowing the jurisdiction specific terms that comprise an unlawful assembly and having to know when an assembly moves from peaceful to unlawful and pointing toward a riot.
And, it turns out that in many parts of the country, we just don't have very good training on how to discern that at the local level, compounded further by the fact that local jurisdictions define these differently. So where I live in St. Louis, if protesters marched from St. Louis city into the suburbs, as they do, they might encounter three or four different unlawful assembly restrictions with different requirements, different standards, different minimal numbers of people to violate the offense. And it's very difficult to figure out how a large group of people can comply with those all at once.
So then let's finally turn to Lafayette Square, which as someone who writes on both the right of assembly, but also religion and other issues, the 40 minutes at Lafayette square were just astounding to watch. Part of, I think what we need to mention here is that protests are by their nature expressive and the responses to protests are also expressive. So there's always something happening in signaling in the way that protesters engage and law enforcement responds to protesters. So in Lafayette square, we had the president of the United States directing the disbanding of a peaceful protest with all kinds of law enforcement, including military assets, you have the chairman of the joint chiefs walking down the streets of Washington and the expressive dimensions of that collectively then tied to the forcible removal of priests at St. John's church. The collective expressive experience of Lafayette square was just stunning. And it has a lot of consequences, expressively and substantively and symbolically. So it's almost, it's even still hard to process sort of what happened there.
In some ways it was fully in line with what the president has done, from the claims about the size of the inauguration crowds to the desire to have a military parade a few years ago that didn't go anywhere. But the idea of a spectacle for the sake of the president that comes at the cost of other freedoms-we, I think we saw all of that in Lafayette square.
Jeffrey Rosen: [00:17:26] Fascinating, so much to unpack. And Rebecca of course, is the assignment editor, but I would love to read your close, legal analysis of the merits of the lawsuits against the police in Lafayette square and how they might playout, absolutely fascinating.
Tracey Meares. first of all, friends, thank you for the great questions in the Q and a box, and I see them and I'm going to try to introduce as many of them as possible. And several of you have asked about defunding the police, including Kenneth Davis, who asks, how would you define it? And I'll add to that, Tracey. Do you support it? How should we think about this claim to defund the police?
Tracey Meares: [00:18:04] Yeah. so I'd say thanks for that question. I'm on record. As many law professors are who write publicly, as having written a piece in the Boston review in 2017. So three years ago in which I said, I'm quoting myself, policing, as we know it.
Must be abolished before it can be transformed. So take me literally. And, I said it in 2017 and I believe it today, but let me tell you what that means for me. in that piece, I was talking about understanding policing as a public. Good. And it might seem strange that someone who sat on President Obama's task force 21st century policing, who there are some folks today who would call that work, reformers reforms, disparagingly, not understanding that at the time we believed and I still believe we're at the forefront and how to make.
Policing better. And that if every agency in the country had adopted our 59 recommendations, it would be. much improved that said, I still think that policing, as we know, it should be abolished because we don't center the public good of safety for everyone. And certainly the most fragile communities we're going to have after we speak.
a panel of folks talking about COVID and the same communities that experienced high rates of violence are the same communities that are fragile and brittle with respect to their COVID response and have high rates of infant mortality, and high rates of people experiencing homelessness and low rates of education.
And. Look, high rates of joblessness. I can go on. Right? All of these things, the incidents and exposure to the criminal legal system are the same people and places that experience high rates of violence. And we have sent historically the same response to those places. And expect that to produce a public good.
So in the Boston review piece, I explained what I think is necessary in order to really think about that. And we said this actually in the President's task force, our two overarching recommendations were that the criminal justice system had to have a fundamental reexamination, which hasn't occurred since 1967 and the Johnson administration.
And that was our first recommendations 0.1. And our recommendation 0.2 was that there needed to be a serious consideration of how the institutions of criminal justice work with community organizations to achieve public safety. So if you think about that, that's my jumping off point for this conversation about defunding.
that's what people are talking about I think. They're talking about restriction, minimizing the footprint of very harsh, criminal justice approaches that actually don't support safety. This gets back to the conversation that Chief Ramsey and I were talking about with respect to legitimacy and public trust, because we know that when you do promote those ideas, people are more likely to voluntarily comply with the law and it's consistent with violence reduction.
Right. and then they're talking about. you know, having less funds for that and investing in other strategies, institutions of the state. And or private organizations that can do this work. I wrote a piece recently with Tom Tyler and Phillip Atiba Goff in NBC think, explaining four ways and I'll just review them quickly that one could think about defunding that are all not mutually exclusive.
So the first I've already mentioned, you could take policing agencies as we know them. And, restrict the number of people who are armed, right? That's the idea of, reducing the footprint of armed first responders. I think that's what many people are concerned about. So that's one thing you can do. you can have much more specialization of, policing agents of people who work within agencies.
You know, that is not mutually exclusive from the reduction of folks who are armed. You can have a lot more collaboration, between policing agencies and community, organizations, community based organizations that do violence work. And we've seen this across the country, in Stockton, California and Richmond, in New York city LIFE Camp, with Erica Ford, Devon Boggan, in Los Angeles, I could go on.
you could have much more civilianisation the point is, is there a lots of options for thinking about how to take what we've got now? and change its shape. In a way that's much more consistent with what I think many people are looking for. And I think personally, is consistent with what we called for or five years ago.
So I guess I just don't think that what I said in 2017 is that fundamentally inconsistent with what we said in the President's task force. and I also think that all of that work. Is a part of the call that Tom and I were asking for in our Atlantic piece from last week,
Jeffrey Rosen: [00:23:41] Fascinating Chief Ramsey do you see things the same way? Do you think that calls to defend the police could be consistent with the approach that you and tracing mirrors took on President Obama's task force, or not? Do you understand the defund police movement differently? What do you think of it? And, we have several questions asking about concrete suggestions for how you think police should help police themselves.
Mel Schuster says the police seem unable to police themselves and continue to commit unconscionable acts during unwarranted arrest. How does police culture change it by what institutions, how long will it take? And I'll just throw in one final thing. You and I, at the constitution center and our great team with Curry Saugner.
Have this policing and the constitution program, might we work together with that program to help police officers embrace self accountability.
Charles Ramsey: [00:24:30] Defund the police means different things to different people. I've heard all kinds of things when it comes to defunding police, but what I hear probably more often.
Is that people are looking at reallocating, some resources currently given to police and then channel those resources elsewhere. Let's say community based social services, for an example, where people that are responding to people in a mental health crisis, or maybe substance abuse issues, things of that nature.
I don't disagree with any of that, but I would just caution us in and to really, you know, I've been in city government for a long time. And this is the time of year where, you know, cities traditionally just go through your budget, trying to grab any money that hadn't been spent to fill holes in other areas.
Right now you've got COVID-19 and cities are really in bad shape financially. So grabbing money is now under this whole defunded police thing is part of it. Follow the money. If the money's being taken to channel into social services, make sure that's where it goes. Because the reason police have these responsibilities because at two or three o'clock in the morning, there's no one else available its police.
Social workers aren't out there, substance abuse counselors aren't out there. And so they're going to have to staff up considerably to have people that are available 24 hours a day, seven days a week to be able to respond. And even then not every call you go to is going to be one where a social worker is going to be able to handle it.
Cause some of these calls that are a little dangerous and so police could be in a secondary role, not in a primary role. So we need to just think about what we, what we're saying. When we say defund the police reality, the police budgets for the most part, at least in the three cities I've worked in anywhere from 90 to 96% of your budget is personnel costs.
That's salaries. That's pension, that's healthcare. That's all that. There's not a whole lot left. And so you're not going to be able to significantly take money away without impacting your numbers and actually losing, personnel that may or may not be a bad thing. I'm just saying that people need to understand that that's what's called for as far as police being able to police themselves.
One of the recommendations in our task force report was for civilian oversight. There are different models out there and none of them perfect. but I do believe there needs to be oversight for a couple reasons. One, it is difficult to police yourself, quite frankly, and plus people don't trust that we could do it, even if we did it perfectly, people would not trust that we're actually, you know, doing it in a very objective way.
So having some oversight of police I think is essential, it's necessary. And I do think that many departments or, cities are moving. in that direction. And I think that's a good thing. I'm not one that likes to use terms like, you know, abolish or defund or whatever. I think that there are ways in which we can talk about this without using extreme language, because that turns people off, it scares people and we need to find solutions to these problems.
And I think part of the problem we have in our society in general in America right now is you've got the extreme left and extreme, right. And those are the voices being heard. And, you know, a lot of people are right there in the middle. And so we need to find ways we can come together to fix these problems.
And I think it's a way of doing it. You don't have to throw the baby out with the bath water, as they say. I think there's a way of doing it without compromising public safety. There's real crime going on, in 2020 to think you can disarm some police. In my opinion is, is not realistic. When this country averages 14 to 15,000 murders a year, Philly right now, rolling into July close to 200 murders.
New York is, I mean, are cities across America that are up in violent crime. I would like to see that one day. It just ain't today. And so we need to think about how we transition. If we want to move in that direction, that's fine. I don't have a problem with that, but how do we get there? And we need to be very thoughtful. So at the same time, we're not jeopardizing public safety, but we are transforming the way in which public safety is delivered to people.
Jeffrey Rosen: [00:28:45] That is very powerful advice. And we are standing ready here at the NCC to host the discussions with you about how to create civilian oversight in ways that will be effective and just the ways you've described. John Inazu, lots of questions, including S Miller, who asks are you intending to justify lawlessness as protected under the first amendment? Some of the press refuse to call rioting and looting as outside of the lawful bounds. And maybe take that question as an opportunity to just tell us where the.
Line should be drawn. You have a great piece where you argue that legislature should only apply unlawful assembly to Incovate actions that contemplate forceful and violent lawbreaking. With respect to nonviolent lawbreaking law enforcement officials may sometimes need to wait until an act occurs or as clearly about to occur before they can intervene and arrest officers.
And then I'll just ask for specifics. Are there any cases in the recent protests of the past month or so where police have legitimately responded with force against unlawful acts.
John Inazu: [00:29:47] Yeah, sure. So, I mean, I think one of the complications here, it goes back to the nature of unlawful assembly provisions and how they aren't consistent across all States and jurisdictions.
So some unlawful assembly provisions say that you must advocate for force or violence in order to be swelled and others say, if you advocate for any kind of lawbreaking, then you engage in unlawful assembly. So that's a legislative matter. If you don't like the law, the legislature needs to change it.
But in jurisdictions that say any advocacy of law breaking subjects you to an unlawful assembly charge. Then, if you say we're going to trespass or we're going to block the street, then you're subject to an unlawful assembly in jurisdictions that say, we're going to wait till the threat of force or violence.
There's more breathing space. But I think that maybe the broader issue is whenever you get a lot of people together in an emotional context and a dynamic protest space, there is going to be some kind of risk for instability and law enforcement I think engages with that, usually with some awareness of that, and there are ways to do this, to allow that breathing space, to allow that risk before it gets out of control. Sometimes it means allowing for some nonviolent lawbreaking, like some trespass or land. Sometimes these are coordinated with law enforcement in ways that are quite safe, but when that flips and it can flip very quickly, especially at night when situations become extremely dynamic and then law enforcement have to figure out, how can they protect themselves and how they protect others in the environment, and that becomes incredibly messy and incredibly complex.
So have there been instances where law enforcement has legitimately used violence, in protest situations where riots have broken out or violence has been occurring?
Of course there have. That's happened in a number of these protest situations. What's much harder is how do you constrain and convey the nature of that violence. And how do you minimize it? So think about a wide, broad protest space physically. And if there is an act of violence occurring in one part of a city block, if the police declare an unlawful assembly and so you have to disperse, how far does that order reach? Does it reach across all of the blocks, including the peaceful protestors over here? How long does that dispersal order last? Does it last for an hour until things are settled down or does it go all night? And these are the kinds of things that, yes, there is a proper response to violence that should limit and constrain violence. Yes. Law enforcement should be doing that. But the nature and scope of those restrictions have to be thought through. And I think often we collectively aren't giving enough guidance to those on the ground to make those decisions in as minimally a disruptive way as possible.
Jeffrey Rosen: [00:32:29] As always you're reminding us, it's, it's complicated, but by carefully growing these distinctions, we can think our way through it. Well it's time for what are, essentially closing statements in this completely fascinating panel. There's so many great questions in the Q and A box. I'll just note Lillian Brooks says Tracey loved the question of starting with what's the purpose of the police. This rings true to me as a former juvenile justice administrator.
This has brought on a heightened, result of the school to prison pipeline. Police are the disciplinarians in the schools and ultimately bring kids to the juvenile court system. Have you thought about this? And Jim Stewart amplifies on that police are called on too varied incidents that they can't be expected to handle.
How would the needs of the public be best? Handled by various providers. You can answer as you please, but Tracey, I think I'll just broadly ask you what do you want to leave our audience with? And can you identify the most constructive area of reform in this extraordinarily vexatious and difficult time that you're involved with, or that you want to call our attention to?
Tracey Meares: [00:33:30] Yeah, I think both of those questions call to mind something that Chief Ramsey had already mentioned, which is that police are available 24, seven, 365 days a year. And they are asked by many municipal government leaders to be the catchall, even in a context in which they're not adequately trained for it.
And they know that they're not, you know, the current police chief of Chicago who came from Texas. Our I guess superintendent, in Chicago, it's not chief. You know, has made a statement that I think I've seen on social media a lot where he's like, you know, we're asked to do all these things. We don't really want to do all of these things.
And yet, you know, we continue to do these things. And that's why I asked in a Atlantic piece with my colleagues. Can we just talk about what police are for? Because police see that what they're for is public safety, but we know that there are a lot better ways to achieve public safety than simply sending armed first responders to all of these incidents.
And we also know that the state, at least I do, needs to play a critical role in providing public safety. Because if we simply take policing, as we know it from these most fragile communities, it's going to be a disaster. So we have to really think about what we're doing, carefully as we get there from here.
You asked me what I think is the most important thing to do. I always hate answering that question. Because I feel like you should do so many things all at once. So how about starting with the president's task force report? But here's one thing I think that, people don't think about, and in a, in a report that I did with again, a Phillip Atiba Goff, Tom Tyler, Elizabeth Hinton, who's a historian.
And the executive director of the justice collaboratory, Caroline Sarnoff called re-imagining public safety. We pointed to one thing that policing agencies really need to do. And that's tell the truth. We really need to think about this historical approach to what policing has been. So we know where we're going.
And, I guess the last thing I'll say, Jeff, that I'll leave your listeners with is that if we do achieve true public safety and re-imagining policing, I believe then. We will actually fulfill the promise of reconstruction, thinking about a conversation that you and I had four or five years ago, I think almost today, actually.
And, at Aspen, which is, you know, there are a bunch of people who have been denied, you know, the true promise of citizenship. Which is safety. and that is a legacy of our inability to really achieve reconstruction. So I really do hope we get it right.
Jeffrey Rosen: [00:36:29] Wow ,so moving to hear you recall that conversation on the promise of reconstruction at the constitution center, behind the fake background behind me now, is this amazing exhibit on the civil war and reconstruction, the battle for freedom and equality. And you've just reminded us that the promise of those reconstruction amendments that's, what's at stake in this current debate. And we must work together to fulfill them. Chief take it wherever you like. but, I'm curious, among other things about, as Tracey said, the President Obama taskforce reports is out there.
Is that getting any traction in this extraordinarily complicated time? And what makes you optimistic about the debate what's actually breaking through and. What for you are the promising areas of reform?
Charles Ramsey: [00:37:11] Well, believe it or not, the report is like been resurrected to an extent, because now departments are reaching out to try to find something that serves as a framework for change.
And I think the report, even though it's, almost five years old now, it's still relevant today. You asked about a couple things that, you know, could be done. One Tracey, touched on and so have you, and that is helping police officers have a better understanding of history. And, I think about the national constitution center and the program, policing in a more perfect union that, myself and Carrie Saughtner and others, put together as an idea
of being able to expose police officers that, I mean, they weren't alive in the sixties, the fifties, even the seventies, in some cases, when you think about it. and so they don't understand the history of policing. And when I had my first visit to the national constitution center and learned about the educational program where you're tracing the history of America from the declaration til today, And I thought, wouldn't it be interesting if we trace the history of policing during that same timeframe?
Now, granted there weren't organized police forces back in the, late 18th century. you had slave catchers and you had other types of activities taking place at one could call some form of policing or law enforcement, but that aside, it would just be an interesting way of tracking. The history of policing as America has evolved.
So as policing, and when you look at policing and for an example, the civil rights era, I mean, as, as a marches on, what's now known as bloody Sunday, he came across the Pettus bridge who was waiting for him on the other side police. And so when you look at policing, historically it is very clear. Police have not always stood on the right side of justice, especially as we define justice today.
Now you may not have been alive during that period of time, but you need to understand that's the baggage as a profession that we carry in some communities and not in other communities. And I think that's important to understand, because you need to know why that tension is there. You need to know why the mistrust is there.
And it's not just about what happened in the sixties. There's enough stuff happening today. That's not right. That just adds to that. But history is a way of being able to put it in a context where I think we can educate officers. The one thing I think if there's one area in policing and we've got a lot of things that I think are very positive in terms of, you know, service and courage and all those sort of things, but empathy and I think what happens there, and it certainly has happened to me.
It's hard not to become jaded over time and you have to fight that. So that you can still feel, Ive often said we'll be successful with police. If we can teach police to see policing through the eyes of those being policed, we are all coming at it from different perspectives. And if we can see policing through the eyes of those being policed, then I think it goes a long way toward starting to kind of turn that ship.
The other thing which I think is important and then I'll be quiet. It was our very first recommendation, which was an overarching recommendation. And that is to look at the entire criminal justice system. I know the focus right now is on policing, but I think it would be a mistake if we left it there.
We need to look at the entire system. We need to look at those drivers of crime. What are those, you know, housing, education, poverty, all those kinds of things that are drivers of crime. We have an opportunity here to do all that. Cause it's not just about police. It's about prosecution. It's about courts.
It's about corrections. It's about reentry. It's about the entire system fixing one part. And not touching the other is problematic, is not going to result in what people believe, would be a favorable outcome in terms of looking at, criminal justice. So I think those things are important, you know, police, aren't the only ones that carry biases.
You know, I, I often think whenever I see that statue of lady justice, with the scales and she's wearing a blindfold. Well, the reality is lady justice sees quite well. And even she has implicit bias when it comes to sentencing. And so we need to not, you know, BS ourselves in the thinking that is just the police.
The entire system needs to be looked at. We need to take serious action, but it needs to be done in a way where we're not compromising public safety and John one last thing. Cause I love what you were saying about, you know, demonstrations and so forth. The last major demonstration I handled in Philly.
Was the, during the occupy movement. I mean, It was occupy everywhere. Right? We had occupy Philly too, it went on for about three months, maybe a little bit longer every single day, every single roll call. We started the roll call by having the Sergeant read the first amendment to the us constitution, to the officers who were assigned.
These folks are protestors, but they're not your enemy. They have every right to be. Petitioning their government to be doing whatever it is that they're doing. As long as it's lawful, obviously not breaking windows and so forth. They're not your enemies. I'm sensitive to that because had it not been for the courage of protesters in the 1960s, I never would've had the opportunity to serve as police chief in Washington, DC or commissioner Philadelphia.
And so that's just reality. And we need to respect that, right? Because that constitutional right for protesters. That's your right too. And you need to understand that our job is to help them. Facilitate that not get in a way of it, but at the same time, have that balance where folks that just want to go to the bank and cash, your check ought to be able to do so without being impeded. And so that's the balance, that's the challenge for policing, but, I think we can get it right.
Jeffrey Rosen: [00:43:19] Wow. What a moving galvanizing, a closing statement from the vision of reading the first amendment to police officers, to your. Call to see policing through the eye of those being policed. And you're incredibly moving call for empathy.
Thank you for all that Chief, Im looking forward to our continued work together. John, the last word is to you on this really memorable panel. so much to say, but I'll just add to the next Margaret Clark's question. Have you. Considered the original constitution was not wrong. And maybe because they lived through riots and protests, they understood the difference and risks back then, which is why it was written as it was.
And whatever changes that were made in the seventies, as you discussed should be retracted your final thoughts on the first amendment case.
John Inazu: [00:44:02] Hopefully, my first book, the forgotten right at assembly argues for just that. So yes, I'm all for recovering the right of peaceable assembly as written in the text of the Constitution. I wanna, you know, in closing, I'd love to pick up on a couple of Chief Ramsey's points because I think they point to a broader issue that all of us are probably thinking about right now.
One is empathy and the other is the necessity of working across the aisle, whatever the aisle is. And if you're just on social media, that aisle looks insurmountable. Those people are evil and you're morally right. And that's it. Full stop. And that's just not gonna work, right. I mean, maybe it works if you grab all the power and suppress the people you don't like, but that doesn't really seem like a very hopeful experiment going forward. And so I think we're left with the alternative of pursuing empathy. And common ground. And in that common ground has to be the first amendment. The first amendment only works if it's a right for everybody, if it protects my speech and your speech, the speech I like, the speech I don't like. The protest I like, the protest I don't like. And I think this is, it's an intuitive point, but it's a pretty accessible point.
If you can, for everyone on this call, give me the political issue that you care about the most, and I can point you to somewhere in this country where a peaceful demonstration for that issue is being unlawfully suppressed in some way. That's a problem. It's a problem that all of us should care about and we should all care about speech and protest and expression. And so I think one tangible thing that we can do, well, two things: one we need to I think dissipate some of the social media voices that pretend that there is no common ground here because there is common ground and a lot of us feel it, but then second, we need to start cross-advocating.
So I am most impressed when I see advocacy for first amendment rights that protect somebody's group that they actually don't like, or they disagree with. And that's been part of our country and we need to see more of that going forward. I think when you get outside of the twitter, echo chambers that's actually happening. And we just need to elevate that more.
I think what you're doing, Jeff, the work that you're doing at the National Constitution Center and the work that I think many of the rest of us are trying to do is toward that end. But it's a really important goal because we're not going to see the kinds of changes that Tracey and Chief Ramsey are talking about if we don't actually find a way to work in greater numbers and across ideological barriers to get there.
Jeffrey Rosen: [00:46:26] Thank you so much. Tracey Meares, Chief Ramsey and John Inazu for memorable pannel and discussion of policing the constitution and the first amendment. It's been an honor to moderate it. I'm so grateful to you for joining and really hope to continue this conversation in all ways possible. Thank you all.
Charles Ramsey: [00:46:44] Thank you.
John Inazu: [00:46:44] Thank you so much.
Jeffrey Rosen: [00:46:45] Thanks.
Jackie McDermott: [00:46:52] This episode was engineered by the national constitution center's AV team and produced by me, Jackie McDermott and Tanaya Tauber. This program is made possible through generous support from the John Templeton foundation. It was presented in partnership. With the Atlantic and in conjunction with the battle for the constitution website.
So if you enjoyed this constitutional conversation, please check out the website at the atlantic.com/projects. We'll link to the site and to the panelists essays on our episode webpage. If you'd like to hear more from this symposium, please tune in next week when we'll share a part two a conversation on the constitutional issues raised by coronavirus as always, please rate, review and subscribe to live at the national constitution center on Apple podcasts or wherever you listen.
On behalf of the National Constitution Center, I'm Jackie McDermott.
