Introduction.
While examining Non-Adversarial Justice by Michael King, Arie Freiberg, Becky Batagol and Ross Hyams, one cannot help but think that this new approach to lawyering and policy making could also be applied to the area of law enforcement. The process of police intervention, precedes most criminal procedures, and thus cannot be left out of the picture. In this sense, what is proposed is to go back some steps before lawyering, to the fields of policymaking in the municipal level and its practical implementation through preventive or therapeutic police intervention. What follows is a Case Study of the incident that occurred in Río Piedras, on August 21, 2009. Through the use of the rewind technique (the recount of things that happened and what could have happened if another approach was taken), I will try to illustrate how the principles of Therapeutic Jurisprudence and Preventive Law could be applied to policymaking and law enforcement. These are the facts:
Avenida Universidad was the place to hang out on Thursday nights, after a week of schoolwork. During the last Thursdays, the municipal police had kept a tight grip in the area, and tried to implement the Municipal Public Order Code, which prohibits drinking alcoholic beverages in the sidewalks outside of the establishments. A young man, who was about to be fined for drinking in the sidewalk, ran inside of one of the establishments in a petty intent to avoid the fine. He was quickly and forcefully apprehended, arrested, and charged for the “mutiny”, that followed his arrest; he was later acquitted.
The arrest of this young man brought about the criticism of bystanders, who screamed at the police officers and allegedly threw empty beer cans at them. In a matter of minutes, hundreds of specially equipped police officers established a perimeter around the area and proceeded to occupy the Avenue. In formation, they proceeded to evacuate the area “using different levels of force, primarily, pushing people with their batons… there were exchanges where the level of aggression shown by some of the police officers is difficult to justify, when one examines the passive conduct of the people being intervened with” . After this show of force and the use of tear gas to further disperse the crowd, another group of students screamed to the officers involved, from inside of the Torre Norte Student Residence; the police proceeded to fire tear gas directly into this crowd, hitting a bystander, who had to receive medical attention, and affecting even students who were sleeping inside of the Residence, and had nothing to do with what happened outside.
Immediately after the incident, the University of Puerto Rico, named a Commission that was to investigate the incidents occurred, and propose ways in which incidents like these could be prevented in the future. This commission was composed of Dr. David Helfeld, Dr. Carlos G. Ramos Bellido and Prof. William Vázquez Irizarry. Public Audiences were held, and audiovisual material was examined; after this process, the commission concluded that “some officials incurred in conduct that supposes the violation of civil rights of the people present”. The principal claim is that some of the police involved in the intervention made use of excessive force. In short, the Commission emphasized in the fact that “the use of tear gas is not a justified as response to insults” .
The Commission proposed that in order to fix responsibility for the actions occurred that night, thorough investigations need to be conducted internally by both state, and municipal police forces; an external investigation by the Department of Justice was also highly recommended. These investigations would be more effective if made public. From a more sociological point of view, the Commission pointed out that “the existence of a long tradition of mistrust and hostility, between the police and students needs to be overcome through a process grounded in mutual respect and understanding of the necessity of adjudicating and demanding responsibility for the conduct of all parts involved” . A multilateral dialogue could also be very fructiferous for all parts, as the groups interested (businesses, students, community organizations, residents and police) could benefit from each other’s point of view, while finding a common ground.
Another recommendation was to train the officers relating to young people assisting Avenida Universidad and orientation of students with relation to the Public Order Codes in the area. In order to achieve these goals, the application of the Codes must be clear and applied with uniformity. The University was also urged, by proposal of students of the School of Urban Planning, to promote and provide open spaces for the safe interaction between students, residents and businesses. The recommendations of the commission are proof that only through a more holistic, integrated, multidisciplinary approach could events like these be prevented from happening. This is exactly what preventive action would mean, as the “fastforward” thinking would have led to “fastforward” preventive policymaking, and implementation instead of making ad hoc policy and mere damage control.
Therapeutic Jurisprudence and Policy Making
It is evident that therapeutic jurisprudence is not unrelated to policymaking, in fact they are closely related:
“Therapeutic Jurisprudence is an interdisciplinary study of the law’s effect on the physical an psychological wellbeing (Slobogin, 1995; Wexler and Winick, 1996b, p. xviii). It proposes law reform directed, here appropriate, at minimizing negative effects and promoting positive effects on wellbeing.”
As applied to policymaking, in this case we are concerned with the wellbeing of the community as a whole, in this case we are concerned with the community of Río Piedras, in the Municipality of San Juan, Puerto Rico.
In the study and development of law that is proposed by therapeutic jurisprudence, an interdisciplinary approach is of the upmost importance:
“Not only have courts and lawyers been often to the use of managerial practices in the legal system, increasingly members of the judiciary and legal system are open to using practices prom other fields as well. Therapeutic jurisprudence has provided a conduit through which principles and practices from the behavioral sciences have influenced court practice, legal practice and the drafting of legislation.”
An approach to policy making that takes into consideration all, or almost all that there is to take into consideration, will definitely be more effective than any short-sighted approach. In drafting Public Order Codes of Municipalities, municipal legislators should take into consideration, the composition of a community, with regards to age groups, and activities of interests, the Urban Planning of the city, and citizen participation in the discussion of these Ordinances through Public Legislative Audiences, among many other factors. This holistic approach in which the interests of all parts are considered, along with important facts, is the only way to secure that these orders can be properly implemented. As citizens feel part of the legislative process, they are more likely to follow their own ordinances. As it is a factual impossibility for everyone to participate in the process, effective orientation should be promoted.
In the case at hand, Municipal contact with the University, the Association of Residents of Santa Rita, Centro de Acción Comunitaria, Urbana y Empresarial (CAUCE), and the Association of Businesses in Avenida Universidad, would have produced a creative way in dealing with problems such as alcohol abuse and violence in the area , while recognizing the voice of the community in the issues that affect them directly. If public sidewalks are not seen as proper for alcohol consumption, the City should provide of open spaces, even inside of the urban landscape, for the socialization between the people in the area. This would have required proper urban planning, and coordination with the Department of Transportation and Public Works (DTOP). Another thing to consider is the possibility of closing off Avenida Universidad to traffic, particularly on Thursday nights. In this way, a safer environment would be provided for the interaction of the community.
Municipal legislatures, in their establishment of Municipal Ordinances and Public Order Codes, should also have a forward-looking approach, in recognizing possible problems to arise in different areas, as a result of the implementation of their enacted policy. A look at recent history would bring about that, as the Commision pointed out, the tradition of mistrust and hostility between students and the police is one of these problems areas. The incidents of the 1960’s, 1970’s and the 1980’s are living proof of this assertion . As the University has adopted a non-confrontational policy towards student protests and expression, the Municipal Police Forces should also change the way in which they approach these volatile situations with students who want to share a drink on thrusday nights. To tackle this implementation problem, I propose an approach that is not new, and in fact is incorporated into the Official Mission of the Municipal Police of San Juan: Prevention .
Preventive Law Enforcement
“Preventive law has been a long standing idea in the non adversarial landscape”, it precedes Therapeutic Jurisprudence, and its objective is litigation avoidance through the use of careful legal planning and foresight . As Natalia Blecher explains in her Chapter on Preventive Law: “The terminology of PL borrows heavily from key concepts in medical literature. The term “Preventive law” draws on the idea that health is best secured while the patient is still healthy and can attend regular medical checkups” . When applied to law enforcement, preventive law is concerned with healthy police-community relations. The health of these relations is advanced through deterrence of prohibited behavior, but also, through the avoidance of the use or show of excessive force by all means. What is proposed is the adoption of a non-confrontational policy.
The effective orientation of applicable regulations, uniformity in implementation, and the provision of proactive officers in this matter, is crucial. Although not knowing a law, is not an excuse for non-compliance, active orientation usually helps the ends of compliance. If, as happened in our case, Ordinances were and still are not uniformly applied to businesses, this is also a weak spot to deal with in order to prevent future violations of Public Ordinances or Codes. The attitude of police officers in the area of implementation is also an important factor, orientation should take place through visible signs, and sensitive, respectful police intervention, rather than intimidating attitudes and out of tone commands. This might require the provision of special training to officers, on how to deal with young people, and people under the effects of alcoholic beverages. The application of police psychology to training and, on-the-scene action could also be very helpful.
Police psychology was developed during the 1980’s , and plays an essential role in the prevention of the use of excessive force. Reports of the National Institute of Justice, of the US Department of Justice, recognize The Role of Police Psychology in Controlling Excessive Force:
“A sample of 65 police psychologists was asked what types of professional services they provided to police departments and how these services were used to control the use of force…. Results of the survey indicated that psychologists were more involved with counseling and evaluating functions than with training and monitoring of police officer behavior, and counseling was more likely to take place as a response to excessive force incidents than as a means of prevention.”
Again, a forward-minded preventive approach was favored by police psychologists. Increased monitoring of policing, and training, are more effective means for reducing the use of excessive force than ad hoc counseling. The surveyed psychologists also provided profiles of officers with excessive force problems, these included:
“officers with personality disorders such as lack of empathy for others, and antisocial narcissistic, and abusive tendencies; officers with previous job-related experiences such as involvement in justifiable police shootings; officers who experienced early career stage problems having to do with their impressionability, impulsiveness, low tolerance for frustration and general need for strong supervision; officers who had a dominant, heavy- handed patrol style that is particularly sensitive to challenge and provocation; officers who had personal problems that cause extreme anxiety and destabilized job functioning”
The detection of these indicators of risk is very important to have a preventive approach towards the use of excessive force. Orientation on the meaning and implications of excessive force must also be provided to officers in training and in active duty.
Law enforcement officers must have at least an idea of the crowd they are confronting, in order to act effectively upon it. In fact, the incorporation of behavioral science studies, like crowd psychology would help officers deal with situations like the one at hand more efficiently. Compliance to law, in both sides of the equation depends on both part’s “awareness of the practical ramification of certain courses of action” . By Preventive Law Enforcement, we mean law enforcement that prevents delictive activity, or in this case, violations to Public Order Codes and Ordinances; while avoiding the use or show of excessive force.
What is to be done, when this non-confrontational, orientation approach is not enough to deter the unwanted behavior? Then preventive law enforcement, ceases to be preventive, in the sense that the behavior to be deterred has already taken place, but is still preventive, as the avoidance of the use or show of excessive force shall be kept in mind. Police intervention can still potentially be therapeutic, as mechanisms such as administrative fines, and court citations to recurring violators should be exhausted.
Therapeutic Police Intervention
Police intervention can be therapeutic or antitherapeutic, as to its psychological and physical effects on civilians and police officers, and their mutual relationships. Even when deterrence is not possible through effective orientation, the show and use of excessive force should be avoided. As it was mentioned before, officers still have administrative fines and court citations for recurring violators; these mechanisms should be exhausted before proceeding to take any other actions, such as arrests, unless it is completely necessary.
The psychological effect of an arrest in a crowd can turn an ordinary situation into a potentially dangerous one; the case of Río Piedras is a landmark example. The violent arrest of a young man, who tried to evade a fine by going inside of one of the businesses in the street, was the shifting point of the night, stirring emotions in the crowd that caused apprehension in the police officers, who felt the need to call for backup. It seems as if a more therapeutic approach could have been used from the start of the situation. Instead, the arrest led to insults and the insults led to the show of force.
Raymond M. Momboisse, former Deputy Attourney General to the State of California, argued in 1967:
“Some police officials take the position that when specially armed and equipped riot police whose very appearance makes them stand out from the public’s day-by-day concept of the police uniform confront rioters, this will antagonize them. This is a limited viewpoint. Usually the opposite effect is achieved. When rioters, either real or potential, are confronted by police units who are obviously armed and equipped for “business” and any eventuality, the mobsters are more reluctant to commit violent acts. Many times the best psychological impact is achieved by concealing the special shock unit from view and only ordering it on the scene when the situation becomes critical. Many times the surprise show of specially equipped additional force will help tip the scales in favor of the police early in the confrontation.”
Apart from the fact that Momboisse is concerned with “riots” and “mobs”, and not exactly with students hanging out on Thursday nights, he points out that the appearance of “riot police” at potential risk situations does not antagonize a crowd. I would definitely take the side of the police officials that argue for the opposite approach. Not only does a show of force have a negative psychological effect in the crowd that it intends to intimidate, but also on the police officers involved in the operation. Even Momboisse admits that the “Show of force approach” has the disadvantage of the officers being subject to sarcastic comments and provocation by the crowd.
Police officers are not immune to the fear or anger that affects any crowd involved in a confrontational situation. Individual police officers carry weapons and privileged authority, and thus, a special responsibility to stay in control of themselves and their fellow officers. Momboisse is clear about this issue:
“the police supervisory personnel must be extremely alert for high tension among the police officers. Officers themselves should be alert for the welfare of their fellow workers. Any signs of nearing the breaking point should be noted and prompt action taken. A word of caution or a friendly gesture may be the needed restraint that could prevent a foolish act on the part of a fellow officer”
Even as the “show of force approach” is chosen as the course of action to be followed, the preventive law enforcement approach shifts to preventing the use of this force. Training with mock scenarios, preventive psychiatric therapy and orientation on accountability are only some of the preventive actions to be taken.
According to the International Association of Chiefs of Police, use of force is "The amount of effort required by police to compel compliance by an unwilling subject." This organization also identified five components of force: physical, chemical, electronic, impact, and firearm . In Police Misconduct: Law and litigation, by Michael Avery, David Rudovsky and Karen Blum, we are illustrated about the legal test of excessive force. It is of the upmost importance to determine whether the force used in a given instance is “reasonable”. The courts usually require attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspects pose an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest. About the use of Chemical or Organic Sprays, the authors state that:
“There is no support in the case law for the proposition that the use of pepper spray, per se, amounts to excessive force and a constitutional violation. Pepper spray may constitute excessive force in specific circumstances, however. For example, the use of pepper spray against unresisting arrestees may be held excessive. The use of pepper spray at close range against an unarmed suspect may constitute excessive force. The use of pepper spray to discourage First Amendment protected activities may be excessive.”
The use of tear gas against crowds of students in response to insults seems to fulfill all of the elements of an excessive use of force. This incident stands as a landmark example of an untherapeutic approach to crowd control, both in the physical and the psychological sense. It has been accepted that indiscriminate use of gas, causes resentment to otherwise acceptable police procedures, because it affects the innocent . In this case, a student was wounded as she was hit by a tear gas shell in one of her legs, even inside University Campus grounds. The indiscriminate use of batons in a menacing manner, against people who pose no resistance to police orders also causes resentment on the crowd and can be, as in the case at hand, a psychological trigger for the escalation of violence. It is this show and use of excessive force that needs to be prevented in order to talk about preventive law enforcement, therapeutic police intervention and civilized police- community relations.
Conclusion
Therapeutic Jurisprudence is closely related to policymaking. The reformulation of Public Ordinances and Codes, is necessary, in order to provide a safe, community-oriented urban environment. An interdisciplinary approach towards policymaking is therefore crucial. Sociology, community relations, its composition, urban planning, and citizen participation, are some of the things to take into consideration. Legislation should not occur in a vacuum, unlinked with social and material reality, outside of public view and criticism until the moment of its forceful implementation. Preventive action needs to be undertaken by police policymakers to provide the new approaches needed in training, use, and show of manpower. It is accepted that a single abusive incident can ignite community hostilities towards law enforcement officers. These incidents should be avoided at all costs.
Preventive law enforcement and therapeutic police intervention, provide an approach that is concerned with healthy police-community relations. The health of these relations is advanced through deterrence of prohibited behavior, but also, through the avoidance of the use or show of excessive force by all means. What is proposed is the adoption of an orientation based, non-confrontational law enforcement policy. As police intervention can be therapeutic or antitherapeutic to police-community relations, alternative approaches law enforcement have been provided that take into consideration the psychological and physical effect of police intervention, in civilians and police officers, and their mutual relations. Now, Río Piedras closes at 12 a.m., and businesses have been seriously affected by the unilateral implementation of this new Municipal Ordinance. The economic effects of untherapeutic policymaking have further aggravated social unrest. Our case is definitely an unfortunate one, but these unfortunate realities only make the fruit of change ripe for the picking.
CITAS.
Helfeld, David; Ramos Bedillo, Carlos G.; Vázquez Irizarry, William. Informe de la Comisión para la Investigación de Incidentes del 21 de agosto de 2009. (2009)
Helfeld, et. al. supra at 4.
Helfeld, et. al. supra at 5.
Helfeld, et. al. supra at 5-6.
King, Michael; Freiberg, Arie; Batagol, Becky; Hyams, Ross. Non-Adversarial Justice. 22 (2009).
King, et. al. supra at 17.
Helfeld, et. al. supra at 6.
For a historical account of student protests and exchanges with the police, examine Huelga y sociedad: Analisis de los sucesos en la U.P.R. 1981-1982 (1982) by Luis Nieves Falcón, Ineke Cunningham, Israel Rivera, Francisco Torres and Hiram Amundaray.
El Departamento de Policía y Seguridad Pública tiene la misión de prevenir la violencia y la criminalidad e implantar servicios de seguridad pública coordinados y efectivos, que permitan a los residentes y visitantes de San Juan disfrutar con tranquilidad las calles, parques y áreas públicas. <
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King, et. al. supra at 65.
King et. al. supra at 66.
National Institute of Justice. The Role of Police Psychology in Controlling Excessive Force. 3 (1994).
National Institute of Justice supra at iii.
National Institute of Justice supra at 3.
King, et. al. supra at 68.
Momboisse, M. Riots, Revolts and Insurrection 173 (1967).
Momboisse supra at 325.
“Police Riot”. www.wikipedia.com. <>
Momboisse supra at 324.
Office of community oriented policing services of the US. Department of Justice <>
Avery, Michael; Rudovsky, David; Blum, Karen. Police Misconduct: Law and Litigation 102.
Avery, et. al. supra at 108-109.
Momboisse supra at 265.
National Institute of Justice supra at 5.
