Negotiating Legitimacy: Police and the Public

Negotiating Legitimacy: Police & the Public Extended Abstract The legitimacy of law enforcement is a lofty topic, well-suited to political theory, philosophical inquiry, and psychological study. Negotiation is a down-and-dirty hands-on process for conflict resolution involving particular individuals in specific settings. This paper brings these topics together, suggesting that negotiation between law enforcement agents and members of the public plays a critical role in shaping perceptions of legitimacy, and that understanding police-public interactions through a negotiation lens can provide valuable insight for understanding these interactions and suggesting potential reforms. From a philosophical perspective, the idea that mere force alone does not confer legitimacy on the actions of state authorities underpins centuries of debate over the contours of legitimate state power. In social psychology, a body of research over the past fifty years has coalesced around the importance of procedural justice – fairness of process – in shaping individuals’ perceptions of the legitimacy of authority. This research suggests that people are more likely to perceive a decision-maker as legitimate when that decision-maker has provided procedural justice to those affected by a decision. At the same time, negotiation occurs all the time, when individuals interact with one another to achieve mutual agreement without a decision-maker. Negotiation occurs when parties are interdependent and seek some outcome that cannot be achieved by either party independently. Although some negotiations occur between parties with roughly equivalent bargaining power, negotiation also routinely happens between parties with unequal bargaining power. That is, even when one party has the authority to decide by fiat, negotiation may still occur because there are reasons why it is preferable not to exercise that authority. Negotiation role alone does not always reveal the particular power landscape of the interaction. Litigants, for example, can negotiate, regardless of whether they have similar or different bargaining leverage; an employer and an employee appear to have, respectively, more and less power, but situational factors may alter that balance in any particular setting. Some negotiations, by their nature, stretch to the outer edge of what we might reasonably conceptualize as negotiation at all. Yet, despite the fact that they are armed, both with weapons and with the power of the state, police do negotiate with the public all the time. They negotiate to achieve compliance with legal rules, and to achieve compliance with law enforcement (themselves). Yet – sometimes – they don’t. The first central thesis of this paper is that the police choice to negotiate meaningfully with the public is a marker and determinant of procedural justice treatment by police and thus, in turn, of police legitimacy. That is, cases where police engage in dialogue and communication with the public, seeking some kind of jointly agreed upon outcome through discussion, are those where the public is likely to emerge with higher perceptions of procedural justice and stronger perceptions of legitimacy, while cases where police resort quickly to force, perceptions of procedural justice, and thus legitimacy, will fall. Recent “street level” interactions between police and the public suggest that the decision to engage in negotiation can occur in a clearly racially discriminatory way. Prominent examples of police shooting African Americans suggest that police are choosing not to attempt to reach a negotiated agreement, while police appear to have a far greater willingness to make a sincere effort to reach a negotiated agreement with white members of the public. Many recent examples of police interactions with white individuals involve significant negotiation and a non-violent outcome, while many recent prominent examples of police interactions with African American individuals have ended in violence that follows a curtailed or non-existent negotiation process. This signals a potentially discriminatory basis for making a decision as to whether to engage in negotiation, or, relatedly, how to negotiate. If police systematically choose to negotiate with white members of the public towards a peaceable resolution, yet refuse to similarly engage in negotiation with African Americans, then those who are not able to participate in a negotiation will emerge with a worse assessment of procedural justice than those who can do so. In addition, even if a negotiation does occur between a police officer and a member of the public, that negotiation may be more or less procedurally just. In both situations, lower perceptions of procedural justice will result in less legitimacy for the police. Additionally, it is critical to note that perceptions of procedural justice occur not just for participants in the police-public interaction, but for broader members of the community who see or learn of the encounter, making an individual officer’s decision to engage in negotiation meaningful for much wider perceptions of procedural justice. Secondly, this paper considers the spectrum of interaction between the police and the public through the explicit lens of negotiation theory, considering the ways in which elements of negotiation theory can help shed light on these interactions and possibilities for reform. For example, key tenets of the negotiation “canon” include the importance of one’s best alternative to a negotiated agreement as a determinant of power and the importance that legal endowments carry during negotiation; the importance of understanding the difference between interpersonal and substantive issues during negotiation; use of objective criteria or benchmarks in negotiation; and understanding differences between cooperative and competitive behavior in negotiation. Exploring these principles in the context of negotiation between police and the public helps shed light on the interaction and suggests potential areas for reform. Part I provides a backdrop of several high-profile cases involving interactions between the police and the public in which negotiation either did not take place or took place in a curtailed manner. Part II first offers background on research on procedural justice, focusing in particular on research on procedural justice and negotiation and on procedural justice and policing. It then notes the dimensions on which procedural justice criteria align with the features of negotiation and highlights how engaging in meaningful negotiation bears the hallmarks of acting in a procedurally just manner. Part III explores in more detail implications of using negotiation theory to understand these encounters.