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Biweekly Column
Brookline TAB
Brookline, Massachusetts

Police Discretion, Again

Dennis Fox

November 17 , 2005

Town Meeting has a lot to consider this week, including another opportunity to reduce police discretion in enforcing Brookline's two-hour daytime parking rule. Once that's taken care of, Town Meeting should go further to increase oversight of police action more generally.

Last year Town Meeting asked the Transportation Board to let residents park in front of their own houses without fear of tickets issued according to police officer whim. The annoyed Board's response was a cumbersome, destined-to-fail "pilot program" in one small neighborhood, leaving the two-hour rule in place everywhere else. Marty Rosenthal's Article 27 would clarify that Town Meeting wants the Board to go further. His related Article 26 would allow Town Meeting to share the policy role now reserved exclusively for the Board.

I've written several times in the past about the current parking limit not because parking ranks high in my list of what's important in town but because reliance on police discretion to enforce an overbroad rule has led to a host of unpleasant, unfair, and just plain silly consequences.

What I haven't done is sign Rosenthal's various petitions to support his proposals, primarily because they bend too far backwards to avoid criticizing the police. "We have the highest confidence in the professionalism, fairness, and good judgment of Brookline's Police Department," one typical petition goes, "but discretionary enforcement of the so-called 2-hour rule is not the proper solution to the problem of congested parking on some residential streets." Rosenthal is right about the solution, but his pro forma make-nice attitude toward the cops strikes me the wrong way.

Last month the TAB reported two stories exposing apparent police favoritism and abuse of discretion, a topic ordinarily overlooked by town selectmen (the only town group empowered to review police activity) as well as by liberal residents such as Rosenthal who seem relieved that at least our police force is better than many others. In one case, the Police Department blacked out from the weekly arrest report given to the TAB the name of a Boston cop arrested in Brookline for domestic violence. It's hard to interpret this unusual secrecy as anything other than an effort to protect a fellow officer's reputation.

In the other case, a Brookline officer arrested a driver for several marijuana-related offenses, but didn't arrest the town firefighter sitting in the back seat right next to the drug paraphernalia. According to Police Captain John O'Leary, the arresting officers decided on the spot the firefighter was innocent. Maybe so, but the situation as described in the TAB would ordinarily result in the arrest of everyone in the car.

Favoring a fellow cop and firefighter may not seem like such a big deal, especially to those of us who have benefited from police discretion in the past (did you ever get a warning instead of the speeding ticket you deserved?). The real problem arises when police power goes the other way. Even in Brookline, cops routinely come down harder on African Americans and Latinos than on whites and charge defendants with undeserved offenses. Even here they make life difficult for defense attorneys and sometimes shade the truth in court, knowing judges almost never penalize police even for obvious lies.

When I enrolled in Brookline's ten-week Citizens' Police Academy two years ago, I was struck by the ease with which officers described their discretionary decisions. The choice between a warning and a traffic ticket, we were repeatedly told, depends mostly on the driver's attitude toward the cop, an inherently unfair criterion that increases discrimination based on cultural stereotypes. Using as a pretext the kind of minor traffic violations almost every driver commits, our cops routinely stop drivers passing through town -- disproportionately black and Hispanic -- simply to see if they can find something incriminating. Some cops more than others, officers told us, are likely to harass non-whites and abuse their power in other ways.

We also heard from the department officer who investigates allegations of police misconduct. In theory, the Board of Selectmen can investigate further, but that rarely happens. That's why Town Meeting should advocate a Civilian Review Board to help ensure that our police earn the accolades town residents too easily toss their way.

Note: this version may differ from the published version.

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