In my previous post ^[1], I discussed the militarisation of American policing and its adverse effects during the recent protests. Militarisation, coupled with a perceived lack of police leadership, accountability and trustworthiness, presents a worrying future for American policing and provides lessons for the international law enforcement community.

Accountability starts at the top. Police leaders set the tone for their forces. Policy development and implementation, training, enforcement of ethical standards and a willingness to cooperate with, and heed the recommendations of, external oversight bodies mould the environment in which policing occurs. Minimising efforts in any of these areas, through words or actions, can spiral out of control and leave police staggering from one problem to another.

Politicians are also accountable for what happens in their jurisdictions. Their words and actions define the space within which the community and police operate. What message did President Donald Trump’s ‘When the looting starts, the shooting starts’ tweet ^[2] send? Do his remarks have any less power than those of Philippine President Rodrigo Duterte, who gave shoot-to-kill ^[3] orders for people breaking community quarantine rules during the Covid-19 pandemic and instructed ^[4] police to kill anyone believed to be connected with the illicit drug trade?

Words can demonise some and empower others, perhaps to the detriment of all. Again, what message was Trump sending when he blamed Antifa ^[5] for America’s problems while ignoring the far right? All too often, political rhetoric and re-election considerations ^[6] overpower good public policy.

Accountability suffers most when the stars align and political expediency meets a politically compliant, or corrupt, policing establishment. Such an alignment was seen in Queensland during Joh Bjelke-Petersen premiership with the policing abuses ^[7] under commissioner Terry Lewis. Similar concerns arise around the world. In China, police are used to override and constrain freedoms ^[8] and human rights at the behest of their political masters.

In democratic societies, accountability occurs through the dispassionate application of the law without regard to political whims. The politicisation of public service has weakened the institutions on which accountability depends. America has a longstanding tradition of a winner-takes-all approach to elections that allows presidents, governors and others in leadership positions to appoint politically acceptable agency heads ^[9] and functionaries, even if their qualifications are dubious. This is also occurring in the Westminster tradition. In Australia, various governments have used a ‘night of the long knives ^[10]’ to install more politically palatable agency heads, endangering the long-held objective of a professional public service ^[11] providing frank and fearless advice.

To maintain community support for policing, ensuring accountability through efficient and effective oversight is essential. The US Department of Justice has broad powers to investigate unconstitutional policing practices. However, the department conducted ^[12] 12 investigations of law enforcement agencies for practices that violated the constitution during George W. Bush’s first term and 15 during Barack Obama’s, but has opened only one since Donald Trump became president. This is a worrying trend.

The apparent view of some US police that they are above the law is also reflected in the qualified immunity ^[13] that shields them from civil liability for violating a civilian’s constitutional rights in most circumstances. The Supreme Court has upheld that doctrine numerous times. In Pearson v Callahan ^[14], for example, the court held that ‘qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably’. That seems a reasonable argument, but the concept of qualified immunity appears to have been taken to extremes ^[15]. And last week, the court decided not to hear ^[16] a set of cases challenging the doctrine, effectively handing the issue over to Congress to resolve.

Perhaps this partly explains why, in 2019 alone, 1,099 people were shot and killed ^[17] by American police. African Americans comprised 13% of the population, but 24% of those killed. (In contrast, England and Wales had a total of 55 fatal police shootings ^[18] between 1990 and 2014; in Australia, there were 47 fatal police shootings ^[19] between 2006 and 2017.)

Between 2013 and 2019, 99% of killings by police in the US did not result in officers being charged with a crime. That may change now given the recent civil unrest and calls for justice throughout the country. The proliferation of weapons in the US is clearly another key factor.

Qualified immunity doesn’t explain why the Minneapolis police use force ^[20] against African Americans seven times more often than against whites. Nearly 60% of those subjected to physical force by the city’s police are black, even though African Americans make up only about 20% of its population.

Of course, institutional racism is not a peculiarly American phenomenon. Worldwide demonstrations ^[21] in support of the Black Lives Matter movement highlight the impact of racism in Western societies. Australian statistics and royal commission ^[22] findings show that our policing is not immune to this pernicious cancer. In New South Wales alone, the number of Aboriginal people ^[23] charged by police increased by 67% over the past 10 years, while the increase for non-Aboriginal people was 8%.

Australia has a different mix of constitutional and legal mechanisms to oversee policing. These important independent processes of accountability must be supported by proper funding and staffing. One need only look at the Australian Commission for Law Enforcement Integrity and its backlog of finalised and ongoing cases ^[24] to realise that more could be done. The old adage ‘justice delayed is justice denied’ applies.

In the end, policing is about trust. Communities trust that when they obey the law, they’ll be left alone to live their lives. They trust that, only where necessary, will police use their powers to maintain the peace. Communities trust that when police abuse their powers they’ll be brought to account, quickly and appropriately. In this complex environment there are no easy, short-term or ill-considered solutions.

Building and maintaining confidence requires providing mechanisms for community involvement in policymaking; having leaders who listen to their communities; ensuring strong and effective oversight mechanisms are in place; and reaffirming the community policing model based on the Peelian principles of modern policing ^[25]. Only then will communities hold confidence in, and support the ongoing legitimacy of, police in our society.