Gadflying

Though only briefly mentioning the topic, Town Meeting last month addressed police discretion in three unrelated decisions. Too much discretion invites abuse, too little leads to harshness and silliness. Brookline is still trying to get it right.

Town Meeting Members extended the temporary ban on focused picketing not because they expect town police to enforce the law as written but because they expect them not to. The First Amendment doesn't permit the regulation backers really want: preventing anti-abortion protestors from standing and screaming outside the homes of doctors who perform abortions.

Instead, the content-neutral law bans all picketing outside a single home, thus curtailing activities of union workers, political party activists, state employees, church parishioners, school children, and everyone else. No one really wants the law enforced uniformly, but it's no surprise town cops consider the ban "helpful." Police always want the final say.

Town Meeting Members did better in formally asking the Transportation Board to devise a resident daytime parking permit program within six months. The action rebuked the Board, which after endless discussion finally adopted a plan this fall that guarantees complete police discretion over when and where to ticket vehicles parked longer than the two-hour town limit.

The Board claimed its newly clarified enforcement priorities would prevent ticketing where no one thinks it necessary, but it refused to change the underlying law and insisted its new plan would not curtail police discretion. Town Meeting's insistence on a revised permit program demonstrated discomfort with accommodating the police preference for unfettered discretion.

Town Meeting went even further when it extended to town residents using private trash haulers the mandatory recycling rules hitherto reserved only for those using the town trash service. Members were unnerved to discover that current Brookline law prevents individuals from going through recyclables left for pickup at curbside. That law -- enforced at police whim -- prevents homeless people and others short of cash from collecting cans and bottles worth money at a redemption center.

Hearing that our police chief thinks it "important" to have this law on the books did not prevent Town Meeting from tossing out the hard-hearted provision. It's Town Meeting's job to set policy. This time they got it right.

Some readers suspect that my criticism of unbounded police discretion must stem from negative interactions with individual cops. That's only partially accurate. My experiences with police who relish the chance to throw their weight around, literally, have been consistent with the criminal justice literature on common police abuses. Even today, too many cops are poorly selected, poorly trained, and poorly supervised. Racism, sexism, and authoritarian subservience to elite interests remain much too common.

Yet I've also had enough positive interactions to know first-hand that many cops do a good job. Many are determined, or at least willing, to revise heavy-handed practices that used to be policing's norm. Here in Brookline, despite my complaints, I've observed individual officers demonstrate sensitivity in difficult circumstances, using their discretion appropriately and fairly.

Even the best of police departments, though, should not have the maximum discretion they prefer. Whether the issue is parking enforcement or criminal investigation, cops routinely want the final say, with the officer on the beat or the supervisor back in the station deciding at will how to proceed. It's up to legislators, judges, and other non-police authorities to set limits.

Brookline residents are on average more politically liberal than the nation as a whole, and thus more insistent on controlling police action, up to a point. Town decision makers want our police to maintain safe, quiet streets and keep tabs on undesirables, but they want those police to use modern progressive methods rather than old-time brutality. Our police department mostly obliges and has a better-than-average reputation.

But better-than-average, of necessity, is always less than perfect. Brookline police still have a reputation for stopping people Driving While Black, and Walking While Black, and maybe even Trash-Picking While Black. They still issue pointless parking tickets. They still make arrests judges later declare unsupportable.

The next Town Meeting can begin to address these problems by establishing a civilian review board to oversee police action. Even in Brookline, cops need constraints, whether they want them or not.

Note: this version may differ from the published version.

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