BLUE LIVES MATTER VERSUS BLACK LIVES MATTER: BENEFICIAL SOCIAL POLICIES AS THE PATH AWAY FROM PUNITIVE RHETORIC AND HARM

INTRODUCTION .......................................................................................... 463 I. COUNTERREACTION: ORIGINS AND OUTCOMES .................................... 464 A. The Origins of Two Organizations .................................................. 464 B. The Policy Response: Punitive Laws ............................................... 467 II. BENEFICIAL POLICIES: GETTING SERIOUS ABOUT PROTECTING AND SUPPORTING POLICE OFFICERS ................................................................. 470 A. Resources ......................................................................................... 471 B. Public Policy .................................................................................... 474 C. Respecting Black Lives Matter ........................................................ 480 CONCLUSION ............................................................................................. 489


INTRODUCTION
The original website of the organization Blue Lives Matter explicitly described its founding as a reaction to the Black Lives Matter movement. 1 According to the website, the fatal shooting of unarmed African-American teenager Michael Brown by Officer Darren Wilson in Ferguson, Missouri, in 2014 led "agitators [to] spread outright lies and distortions of the truth about Officer Wilson and all police officers." 2 Like Black Lives Matter, 3 Blue Lives Matter is a specific organization, as well as a slogan used by people unconnected to the organization who share the organization's worldview about whom American society unfairly targets and victimizes. 4  are used as calls to action that seek to motivate supporters' efforts to shape public opinion, law, and policy. 5 For those who trumpet the phrase "Blue Lives Matter," "[s]upport for law enforcement has become a form of identity politics allyship for many white and conservative Americans." 6 There is reason to wonder whether Blue Lives Matter advocates have an excessively myopic focus on physical attacks against police officers 7 that they claim are facilitated by false narratives from Black Lives Matter adherents and their sympathizers in government and the news media. 8 Thus, one should ask: What if there was a genuine commitment to "making blue lives matter," rather than just using the slogan and corresponding actions to counterattack the statements and protests by Black Lives Matter advocates? This Article examines this question and thereby challenges the viewpoints, proposals, and consequences of current Blue Lives Matter rhetoric and action.

A. The Origins of Two Organizations
Three friends created and spread the hashtag #BlackLivesMatter in 2013 as part of their outraged reaction to the acquittal of George Zimmerman, the neighborhood watch volunteer who shot and killed Trayvon Martin, an unarmed African-American teenager walking home in Sanford, Florida. 9 One year later, the hashtag was a prominent slogan for protesters and civil rights advocates on the streets of Ferguson, Missouri, after a grand jury declined to indict Officer Wilson for killing Michael Brown. 10 The hashtag's originators 5. See, e.g., Lind, supra note 4 ("Speakers . . . led Republican National Convention attendees in "Blue Lives Matter" chants. Blue Lives Matter bills that would make it a hate crime to target a police officer have already been passed . . . ."); Eligon, supra note 4 ("Black Lives Matter began as a hashtag and grew into a protest slogan . . . and became an Internet-driven civil rights movement.").
[T]he founders decided that we could be doing more to help the officers who are getting attacked in the streets. The Blue Lives Membership was created so that citizens who aren't afraid to support law enforcement could become actively involved in providing law enforcement officers with life-saving equipment and training, and providing financial support for the families of heroes killed in the line of duty. Id. 8. See id. ("[Two New York City police officers] were ambushed and murdered by a fanatic who believed the lies of Black Lives Matter, the media, and politicians.").
10. Id. used social media to organize several hundred protesters to travel to Ferguson, 11 in order to participate in the controversial multi-night protests that included looting and arson by some of those present. 12 Photographs of burning buildings and police officers wearing military gear to confront unarmed protesters brought additional attention to the protests 13 -and to the slogan "Black Lives Matter." 14 Very quickly, parallel protests erupted in more than 100 cities across the country. 15 The slogan's impact was enhanced through its visibility at street protests around the country concerning the deaths of other African-Americans at the hands of police or while in police custody during 2014 and thereafter. 16 As one observer described: "Black Lives Matter serves as a banner under which multiple groups, individuals and protests aim to address police brutality." 17 Black Lives Matter became a formal organization with dozens of chapters in cities around the country. 18 Yet, the chapters are local and autonomous, and people unconnected to the formal organization take action while using the slogan. 19 As an observer described: "The new movement is powerful yet diffuse, linked not by physical closeness or even necessarily by political consensus, but by the mobili[z]ing force of social media." 20 As a 11. Id. 14. Nishat Kurwa, "Black Lives Matter" Slogan Becomes a Bigger Movement, NPR (Dec. 4, 2014), https://www.npr.org/2014/12/04/368408247/black-lives-matter-slogan-becomes-a-bigger-movement. 15 The organization faces potential blame for everything that occurs at events at which anyone uses or displays the slogan, as evidenced by a Louisiana police officer's unsuccessful attempt to sue the organization when he was seriously injured at a protest. 23 While the organization can likely avoid legal liability for harms that occur under the slogan, 24 the prominence of the slogan and movement make it a tempting target for opposition and blame by critics. 25 The Blue Lives Matter organization identifies its founding moment as the murder of two police officers in New York City that it blames on Black Lives Matter: "On December 20, 2014, NYPD Officer Rafael Ramos and Officer Wenjian Liu were ambushed and murdered by a fanatic who believed the lies of Black Lives Matter, the media, and politicians." 26 In the years that followed, the organization found reinforcement for this motivation and explanation of events in subsequent injurious attacks on police associated with protests under the Black Lives Matter banner. 27 In particular, two horrific events provided notable opportunities to reinforce this perspective: the killing of five police officers by a lone gunman at an otherwise peaceful protest in Dallas in July 2016 28  these laws to bring hate-crimes charges against uncooperative people who are deemed to be resisting arrest, but who are not physically attacking an officer. 46 With respect to federal proposals, conservative critics raised concerns about congressional interference with matters that should be left under state authority. 47 Moreover, these laws may be overly broad, potentially authorizing federal charges against someone who takes a swing at an officer but fails to strike any blow. 48 In an especially harsh assessment of the punitive legal approach to Blue Lives Matter laws, one observer remarked that such laws "protect and serve cops who hassle innocent people or use excessive force [by] giving them a new legal threat to use against their victims." 49 The fundamental questions about these laws ought to be: (1) What is the exact problem these laws seek to address? and (2) Do these laws address the actual problems facing law enforcement officers? Highly publicized ambush attacks against police officers triggered the creation of these laws, 50 including the attacks in New York City and Dallas 51 that some Blue Lives Matter advocates blame on Black Lives Matter activists. 52 Despite the claim that this "type of violence . . . is growing at exponential rates," 53 FBI data indicate that felonious assaults and fatal killings of police officers have gone up and down in individual years over the past decade, but there is no significant increase, or even upward trend, in victimizations. 54 The laws are clearly Ignoring Police Reform, ACLU (May 17, 2018), https://www.aclu.org/blog/criminal-lawreform/reforming-police-practices/congress-wants-more-protections-cops-while (arguing that it is inappropriate to characterize an offense against a police officer as a hate crime, because hate crimes are acts perpetrated against groups that have been historically and systematically discriminated againstpolice officers have not suffered historical or systematic persecution officers." 56 Some advocates claim that the increased punishments will have a deterrent effect that will reduce attacks on police. 57 There is no evidence, however, that such laws will actually deter people who harbor a specific motivation to harm police officers, 58 especially because crimes against police officers are already addressed with significant punishments. 59 Thus, rather than actually increasing any benefit to police officers who work in an environment of risk, observers see these laws as merely symbolic statements by politicians who want to claim that they are doing something about crimes against public servants. 60

II. BENEFICIAL POLICIES: GETTING SERIOUS ABOUT PROTECTING AND SUPPORTING POLICE OFFICERS
On its original website, the Blue Lives Matter organization noted that subsequent to its founding it sought to broaden its efforts to benefit officers by becoming a membership organization that would include regular citizens: [T]he founders decided that we could be doing more to help the officers who are getting attacked in the streets . . . . Membership was created so that citizens . . . could become actively involved in providing law enforcement officers with life-saving equipment 55. See New "Blue Lives Matter" Laws Raise Concerns, DETROIT NEWS (May 26, 2017), https://www.detroitnews.com/story/news/nation/2017/05/26/blue-lives-matter/102196678/ [hereinafter Laws Raise Concerns] (quoting one governor who pledged to enact "the toughest penalties possible for anyone who attacks a law enforcement officer"). 56. Id. 57. See, e.g., Thomas, supra note 39 (quoting one state legislator who described a proposed bill as "creating a special class of victims and giving them additional protections [to] hopefully . . . serve[] as a deterrent if someone were inclined to attack a police officer, this would hopefully give them pause"); William Douglas & Eleanor Mueller, "Blue Lives Matter": Push to Raise Penalties for Violence Against Cops, MCCLATCHY DC (May 26, 2016), https://www.mcclatchydc.com/news/politics-government/ congress/article80058187.html (reporting that law enforcement organizations argue punitive Blue Lives Matter laws "will send a message and make suspects think twice before targeting officers").
58. Deterrence effects in criminal justice are extremely difficult to prove because researchers, in effect, are attempting to document the rates of events that did not occur. GEORGE  and training, and providing financial support for the families of heroes killed in the line of duty. 61 Although the website's language focuses on attacks against police officers, the organization's efforts can be broader at specific moments, such as raising money for an officer's infant son who needed a heart transplant. 62 If Blue Lives Matter could fully adopt this broader focus-moving beyond a reactive posture toward Black Lives Matter and a preoccupation with officers' victimization-what might that mean for the advocacy of beneficial policies? One conservative commentator who was critical of the enactment of punitive Blue Lives Matter laws argued in favor of a broader approach by saying we should "support police with equipment, grants, research and training programs." 63 Yet, even this broader view of the support that police officers actually need does not fully capture the breadth of policies that would improve officers' well-being and law enforcement effectiveness. 64

A. Resources
Policing is a profession that includes risks of violent victimization, 65 as well as significant levels of health-harming stress, 66 with attendant risks of suicide. 67 A broader view of harms experienced by police reveals that policies should account for psychological risks and harms to officers and their families, and should ask whether counselors and psychologists have sufficient understanding of police culture to provide effective help. 68 With respect to the Blue Lives Matter preoccupation with lethal attacks on police, there is certainly a need to ensure that officers throughout the 61

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Blue Lives Matter Versus Black Lives Matter 473 also recognize that broadening law enforcement resources is a desirable means to improve safety for police and the public. 78 Yet, while the Blue Lives Matter organization explicitly says, "[we] will continue to support law enforcement in any way when there is a need," 79 their protect-the-police rhetoric does not address the psychological burdens and harms suffered by police. 80 A true commitment to protecting and supporting police officers should presumably encompass concern for and advocacy about harmful psychological problems affecting police officers, including suicide risk, 81 post-traumatic stress disorder (PTSD), 82 mental illness, 83 and injury risk associated with chronic fatigue. 84 These and related issues 85 deserve additional attention and resources, because they impact officers' well-being and effectiveness. 86

B. Public Policy
The foregoing discussion of the police need for protective armor-both physical and psychological-focused narrowly on supporting officers directly, without considering the social forces and contexts that increase the risks and threats faced by officers. 89 Yet, these contexts are obviously important to protecting and supporting police officers, because the frequency and probability of harm police officers experience varies in different situations. 90 Thus, a comprehensive effort to value and protect officers must consider a broad array of policy initiatives, including those not typically associated with enhanced safety for the police and public. 91 For example, officers face the risk of needle-stick injuries and attendant possibilities for harm from bloodborne pathogens, especially when conducting frisk searches. 92 While improved equipment and training can diminish risk and reduce harm, 93 it is possible to think more broadly about drugs and drug-related enforcement matters that may also affect the frequency of these risk exposures. 94 For example, needle-exchange programs may reduce the number of shared and contaminated needles in circulation on the streets. 95 Moreover, organizations in Canada and other countries offer intravenous drug users supervised-injection sites, primarily to facilitate immediate response to potentially fatal overdoses and also to reduce risks of bloodborne illnesses by providing clean needles. 96 Supervised-injection centers could also reduce the number of people carrying injection needles, 88

Blue Lives Matter Versus Black Lives Matter 475
which would reduce the risks of exposure to HIV and Hepatitis C for officers conducting frisk searches. 97 Obviously, considering and introducing any policy changes requires careful examination of costs, benefits, and outcomes. 98 Yet, the fundamental point is that a genuine commitment to protecting and supporting police officers should include a willingness to think broadly about the sources of risk and harm for police officers, as well as the wide array of policy initiatives that may have a positive impact in countering specific threats. 99 Potentially dramatic changes in American drug policy, such as providing injection sites, risk colliding with political impediments from ingrained assumptions and beliefs about crime held by politicians, the public, and the police themselves-even when research supports these changes. 100 Such impediments may loom even larger with respect to policy proposals that advance beyond the boundaries of criminal justice or that trigger issues of ideological identity and demarcation in our politically polarized society. 101 Yet, one must consider these broader issues in any genuine examination of how to protect and support police officers. As illustrated pointedly, for example, in the words of columnist Josh Koehn: "The Blue Lives Matter movement has a nation ready and willing to support police officers, so why doesn't it do something about the number of guns on our streets? Why doesn't it actually address the dangers of deteriorating mental health when people possess these guns?" 102 The Blue Lives Matter organization and its supporters obviously do not control gun policy 103 or resources devoted to mental health treatment. 104 Instead, Koehn's questions challenge the 97. Because the availability of supervised injection sites is "associated with less outdoor drug use," presumably there could be a corresponding reduction in drug users carrying needles as injection sites provide "a safe space [ organization and its supporters to become advocates for a wider array of policies in order to advance their purported goals. 105 A major challenge for police officers in many jurisdictions is handling encounters with people whose mental illness issues have placed them in a moment of behavioral crisis, whether threatening or harming others, harming themselves, or alarming the public with unusual behavior. 106 This is not to say that people suffering from mental illnesses typically pose a lethal threat to police, 107 although such events have occurred. 108 Officers face injury risks in any circumstance when people resist arrest, especially young men under the influence of alcohol, whether suffering from mental illnesses or not. 109 Yet, special concerns exist if police overestimate the dangers posed by encounters with people suffering from mental illnesses. 110 There are risks of highly publicized, tragic police-use-of-force events produced by such overreactions, 111 , 2014), https://www.npr.org/sections/thetwo-way/2014/03/31/297163938/albuquerqueprotest-of-fatal-police-shootings-turns-into-chaos (reporting on public protests after police shot a homeless man who lived on a hillside and suffered from mental illness). and pose psychological harms for officers who struggle with the burden, including possible PTSD, of causing injuries and deaths. 113 Many cities now train officers for such situations or gain intervention assistance from social workers, indicating progress. 114 However, these interventions affecting specific individuals do not address mental health needs to the same extent as would broader policies, such as universal health care to provide medication and treatment options for everyone, mental health courts, and in-patient psychiatric treatment for anyone who needs such help. 115 In addition, the police-and society-would benefit from investments in parallel initiatives to address homelessness and to coordinate mental health assessments and referrals between the criminal justice system and mental health treatment providers. 116 These issues may not seem directly related to protecting and supporting police officers, and they certainly are not the focus of advocacy by the Blue Lives Matter organization and its supporters. 117 Yet, such efforts can reduce harms to officers, including PTSD from injuring others 118 and risks from incidents that deteriorate police-community relations. 119 Gun control policy is clearly relevant to officer safety. 120 Yet, it constitutes a broadly controversial policy issue that is not the focus of the Blue Lives Matter organization and its advocates. 121 122 Police officers unquestionably face special risks, 123 for example, when responding to active-shooter events involving the criminal use of militarystyle weapons with high-capacity magazines. 124 Police officers also put their lives on the line when acting as first responders who intervene when armed people are enraged, 125 desperate, 126 mentally disturbed, 127 or otherwise behaving in a threatening manner. 128 And, of course, police officers are sometimes specifically targeted by people with guns. 129 Moreover, in their roles as first responders who must render first aid and comfort to victims, police officers' exposure to people injured or killed by firearms-whether , https://chicago.suntimes.com/news/officer-samuel-jimenezroutine-mail-run-mercy-hospital-shooting-juan-lopez/ (reporting that the shooting that resulted in the death of a police officer and two other victims began with an angry confrontation between the shooter and his ex-fiancée).
128. See, e.g., Amanda Garrett, Barberton Officer Shot, New Franklin Man Killed After an 8-Hour Standoff, AKRON BEACON J. (Feb. 8, 2019), https://www.ohio.com/news/20190208/barbertonofficer-shot-new-franklin-man-killed-after-8-hour-standoff-ends-in-gunfire (reporting that a man with a gun barricaded himself inside an apartment and fired a shot through the door when officers arrived in response to a domestic violence call).
129. See Sniper Ambush, supra note 28 (reporting that a lone gunman killed five police officers in Dallas); Visser, supra note 29 (reporting that an individual used a semi-automatic rifle to kill three police officers). suicides, accidents, or intentional acts-can contribute to physical and psychological symptoms of PTSD during routine policing work. 130 In light of the threats posed to police by the ubiquity and ease of acquiring firearms in the United States, 131 one might expect Blue Lives Matter and other law enforcement organizations to unify at the forefront of efforts to regulate and limit the carrying of firearms. 132 There are divisions in perspectives and advocacy on this issue, however, most notably with big-city police chiefs advocating for gun control and elected sheriffs in small jurisdictions often opposed to such restrictions. 133 The divergence of police chiefs' perspectives from that of many officers was particularly striking when an online publication for rank-and-file law enforcement officers conducted a survey of its registered members and received responses from 15,000 verified current and former officers about gun-control policies. 134 The survey did not utilize a true scientific sample, because it was limited to registered members of a specific online publication. 135 Moreover, the phrasing of its questions has been challenged as biased due to the questions' focus on whether proposals would stop mass shootings or reduce violent crime, rather than examining the broader issue of public safety. 136  weapons would have no impact on violent crime, and 81% favored arming teachers and school administrators who had received weapons training. 138 Even more striking, 71% supported decisions by local law enforcement leaders to refuse to enforce restrictive gun laws in their jurisdictions. 139 If those active in Blue Lives Matter share the viewpoints of these survey respondents, it is no surprise that the organization and its supporters do not address gun control as part of their advocacy for officer health and safety. 140 Thus, it is common to see police organizations endorse political candidates who actively oppose gun control measures, such as candidates who receive "A" grades and campaign contributions from the National Rifle Association. 141

C. Respecting Black Lives Matter
Paradoxically, in light of the origins of Blue Lives Matter, 142 a genuine commitment to the health and safety of police officers would require police departments to be self-critical and listen to the claims of the Black Lives Matter organization and like-minded community residents. 143 In the aftermath of George Zimmerman's 2013 acquittal for stalking and killing Trayvon Martin, an unarmed teenager, Black Lives Matter arose from concerns about racial discrimination in a justice system that did not merely  reduce citizens' willingness to provide information about crimes. 153 As summarized by one justice research organization: [D]amaged police-community relations make it more difficult for police to execute their most critical responsibility: to respond to violent crime and protect public safety. In those communities where distrust in police is high, people are less likely to report a crime or offer witness testimony, which impedes effective policing. 154 Clearly, many police executives recognize the importance of good police-community relations, as reflected in their departments' participation in organizations such as Advocates and Leaders for Police and Community Trust (ALPACT). 155 Despite the potential benefits to police from listening to community members, 156 the Blue Lives Matter organization manifests what can be termed occupational umbrage, 157 namely a reflexive defensiveness about criticism directed at police officers. 158 Reflexive defensiveness can exist in other professions, too, 159 but it is especially damaging for the profession of policing, which needs to listen to and understand community concerns in order to be effective. 160 The Blue Lives Matter organization's explicit mischaracterization of Black Lives Matter as a "movement[]"-not just an organization-"whose goal [is] the vilification of law enforcement" 161 reveals an unwillingness to listen, understand, and seriously consider the legitimate concerns that motivate many people who speak and act under the 153 172 and the ways in which individual incidents harm the positive relationships that police departments need with the communities they serve. 173 One might look, for example, at two different cases-one in North Charleston, South Carolina, 174 and the other in Chicago 175 -in which police officers were actually held criminally responsible for unjustified killings of African-American men. 176 One troubling aspect of both cases is the reality that neither officer would have been criminally charged for firing multiple bullets into the backs of people posing no lethal threat if not for the unexpected emergence of video evidence of what the officers had actually done. 177 In the North Charleston case, the officer shot and killed an unarmed, alleged traffic-code violator who ran away from the officer on foot. 178 Advocates of racial justice and police accountability expressed concern about the North Charleston police department's quick decision to publicize the officer's version of events, namely the false claim that the victim had taken the officer's TASER and attempted to use the weapon against the officer. 179 In the Chicago case, police responded to a report of someone breaking into vehicles. 180 As the knife-carrying suspect ignored an officer's command to stop, he retreated from officers and damaged a police vehicle with the knife. 181 The officers followed him slowly for several minutes while waiting for an officer with a TASER to arrive. 182 Instead, another officer arrived and immediately fired more than a dozen rounds, killing the teenager. 183 The initial news reports carried a police union leader's description and justification of the event: the shooting was justified because the officers legitimately feared for their lives when the armed suspect approached them. 184 Chicago officials withheld the police dashboard video until a judge ordered its release more than a year after the event due to pressure from the

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[Vol. 44:463 news media. 185 Just before the video's release, the district attorney suddenly charged the officer, and the public learned that the deceased victim had 16 bullet wounds, including 9 in his back. 186 The timing of events gave the appearance of a cover-up and raised questions about whether the officer would have been charged at all if not for the media pressure that led to the release of the video. 187 In both instances, prominent spokespersons for police organizations publicly justified the lethal actions prior to any investigation of the events. 188 For those concerned about police accountability and the valuing of African-Americans' lives, these incidents convey the impression that police automatically protect their own, and they raise doubts that investigations will be unbiased. 189 The Chicago case, in particular, illuminated such concerns, as witnesses in the vicinity of the shooting were told to leave the area without being interviewed by police. 190 Witnesses were not even asked for their names so that they could be contacted for a later investigation. 191 There is a well-documented problem with some officers and departments concerning a police code of silence that enables abusive officers to act with little fear that their colleagues will report them. 192 Moreover, selfinterested prosecutors can turn a blind eye to evidence of police misconduct that emerges as cases move through the courts. 193 Prosecutors have also mounted concerted public relations campaigns to slander victims of police violence as a means to justify their own decisions to forgo prosecuting officers. 194 These practices diminish the likelihood of accountability for abusive police behavior, which parallels the penal harm philosophy in the realm of corrections. 195 Namely, this phenomenon involves police officerslike corrections officers-improperly inflicting harm 196 to punish those who disobey, fail to show respect, violate officers' expectations about behavior, or, even worse, simply are members of a demographic group against which the officers harbor animus. 197 Such punishment can include unjustified stopand-frisk searches, automobile searches, issuance of traffic tickets and other citations, use of force, and arrests. 198 When done to punish or inflict harm, these actions by police officers are contrary to law. 199 Officers are not authorized to mete out discretionary punishments. 200 Rather, in the criminal justice system, judges impose punishment and the government's corrections system carries it out only after an individual is convicted after a criminal proceeding that respects due process and constitutional rights. 201 There is abundant evidence that African-Americans disproportionately experience the harm inflicted through the improper and abusive exercise of police power as an unavoidable part of their everyday lives in American society. 202 The Blue Lives Matter founders' mission of defensively disparaging those who experience this victimization, urge reform, and advocate police accountability only serves to enhance suspicion of police and discourage people who might otherwise provide information to officers about existing dangers and unsolved crimes. 203 Research shows that racial profiling and other encounters with police perceived as unfair by community members affect people's willingness to cooperate with and provide information to the police. 204 By contrast, making blues lives matter would be best advanced by genuinely listening to community members, self-critically recognizing problems, and thereby joining in the effort to improve police training, supervision, and accountability. 205 Unfortunately, the rhetoric of the Blue 2020]

Blue Lives Matter Versus Black Lives Matter 489
Lives Matter organization's founders seems to reflect a close-minded and counterproductive viewpoint of even constructive criticism of police. 206 CONCLUSION What should be done by those who truly care about the well-being of police officers and genuinely want to "make blue lives matter"? Unfortunately, those who originally trumpeted this slogan in the aftermath of civil disorder in Ferguson, Missouri, appear to be blind to useful approaches for advancing their purported goal, due to a myopic preoccupation with vilifying Black Lives Matter as an organization, slogan, and social movement. 207 There is strong evidence that the Blue Lives Matter slogan is motivated by defensiveness, occupational umbrage, and an unwillingness to undertake critical examination of both police practices and the social problems that affect officers' well-being. 208 The specific policy initiative