The protests in response to the police killing of George Floyd in Minneapolis have accelerated changes in New York state that police reform advocates had fought to enact for years. Within days of the protests spreading to New York City and across the state, legislators moved to ban chokeholds and repeal a controversial law that has long protected records of police abuse from public scrutiny.
On June 12, Gov. Andrew Cuomo signed a sweeping executive order requiring the state’s more than 500 police agencies to “to develop a plan that reinvents and modernizes police strategies and programs in their community based on community input.” Departments across the state have until April 2021 to do so, or they risk losing state funding.
“The protests taking place throughout the nation and in communities across New York in response to the murder of George Floyd illustrate the loss of community confidence in our local police agencies,” Cuomo said in a statement. “This emergency regulation will help rebuild that confidence and restore trust between police and the communities they serve.”
The mandate to comprehensively review existing police strategies, policies, procedures, and practices was in part an effort by state officials to return the conversation to police reform at a time when most protesters on the street had started demanding that police be defunded instead. But the order also left local officials across the state, and particularly those in small communities, scrambling and overwhelmed at the prospect of having to rewrite their police rulebooks from scratch.
“Our village police chief literally did not know exactly what to do,” said Clyde Rabideau, the mayor of Saranac Lake, a village of 5,400 people in the Adirondack region.
Following Cuomo’s order, Saranac Lake’s police chief reached out to colleagues across the state and found a solution: Lexipol, a California-based consulting company that has quietly drafted the policies of thousands of police departments across the country, would rewrite Saranac Lake’s for $11,000, plus additional yearly fees. “We’re a small village, we have 12 sworn officers including the chief,” said Rabideau.
In the past, local police policy “was basically on the fly as different situations presented themselves,” he added. “They did the best job they could given their limited time and resources. But now, given all the executive orders and new directives, we have got to step back, get some professional help, engage the public, and reformulate our policies and procedures.”
Saranac Lake officials had never heard about Lexipol until the recent executive order sent them looking for it, but the story of how the village came to contract with the company has been repeated dozens of times across the country. Lexipol, founded in 2003 by two former cops, rapidly took over California’s law enforcement agencies, contracting with more than 95 percent of them. But its influence has quickly grown nationwide as well, as the company has seized on police protests — and the reforms they prompted — to pitch its services to departments looking to keep up with a changing landscape.
Critics of Lexipol warn that the company is committed to its bottom line rather than transformed policing: The policies it sells tend to be conservative interpretations of the law that prescribe the bare minimum to keep police departments from getting sued — a promise that is central to Lexipol’s aggressive marketing campaigns. And critics fear that by outsourcing the drafting of their policies to a private company, departments can maintain an appearance of professionalism while de facto hindering transparency and cutting local communities out of the process.
In New York, community organizers whose work and activism prompted changes like Cuomo’s recent executive order, now fear their efforts will be co-opted by a company looking for profit. “Obviously wide-spread privatization of police policy would have a pretty spectacular impact on New York state,” said Zohar Gitlis, a member of the High Peaks DSA chapter, which organizes the northeastern Adirondack region, including Saranac Lake. “And [it] would be a really grim outcome of an executive order that was celebrated for its intent to address racist policing after the murder of George Floyd.”
Shannon Pieper, a spokesperson for Lexipol, wrote in an email to The Intercept that the company does not collect information on the reasons behind agency decisions to subscribe to Lexipol’s services. But on July 30, she wrote, Lexipol held an informational webinar, in partnership with the New York State Association of Chiefs of Police, reviewing much of the recent New York police reform legislation, including Cuomo’s executive order. “Our appeal to potential customers today is consistent with our message since we first started providing policies to New York law enforcement agencies in 2015: Lexipol’s policy management system is a cost-effective solution that provides comprehensive policies and policy updates, Daily Training Bulletins to help officers apply policies, and reporting features to track policy acknowledgment.”
“Lexipol encourages agencies that subscribe to our policies to review and customize the policies to address community and agency needs,” she added. “Our customers can—and have—involved community members in review of the policies before they are implemented and integrate changes as a result of that process.”
Jason Conwall, a spokesman for Cuomo, wrote in an email to The Intercept that officials are finalizing guidance, including resources, that municipalities may consider as they work to comply with the executive order, but did not specifically comment on Lexipol.
“Governor Cuomo’s executive order is clear – it calls on community members, stakeholders, local elected officials and police to come to the table and be part of a collective effort to create transparent and fair law enforcement policies that reflect the community’s desires,” Conwall wrote. “Once a municipality has finalized a plan and its legislative body has approved it, the municipality is required to file a certification with the state Division of Budget and certify that all stakeholders contributed to the process.”
Rabideau, Saranac Lake’s mayor, believes a number of other towns are considering contracting with Lexipol as a result of recent legislation. That should be cause of alarm, said Joanna Schwartz, a professor at the UCLA School of Law who has closely studied the company.
“I am very concerned about the prospect of Lexipol crafting these policies in New York and across the country without transparency and engagement,” Schwartz told The Intercept. “I appreciate that the governor wants to make sure that police policies are being written in a good way, but if that ends up being Lexipol’s way I fear that the underlying goals of the initial reforms aren’t going to be met.”
Police Consultants
Lexipol’s approach, in the 3,500 public safety agencies in 35 states in which the company operates, has been mostly sticking to the minimum legal standard of what police are and are not allowed to do. The company promises departments regularly updated policies that keep up with changing laws, and its marketing materials pitch “legally defensive content” and call on officials to “protect” their agencies from lawsuits.
In fact, those promises have not always panned out, and a number of departments relying on Lexipol policies have been sued when those policies were found to violate constitutional standards or other laws. Civil rights advocates have particularly taken issue with Lexipol’s policies regulating the cooperation between local law enforcement and U.S. Immigration and Customs Enforcement, but Lexipol has also been challenged in Illinois for promoting policies that illegally discriminate against pregnant officers. Lexipol lobbied against a recent California law restricting the use of police force and drafted the policies of the Pomona police department, which was sued last month by the American Civil Liberties Union of Southern California over its defiance of the law.
“The entire policy philosophy of Lexipol is based on the idea that if the policies just describe the legal standard and don’t give operational guidance to officers, don’t direct them how to behave in particular situations, they believe that that will minimize individual officer liability,” said Carl Takei, a senior staff attorney at the ACLU. “All of their policy really tries very hard to avoid having bright-line rules or directing officers to do or not do any particular thing in a particular circumstance.”
Photo: Robert Franklin/South Bend Tribune via AP
In workshops, promotional material, and the policies it sells to police departments, Lexipol has regularly opposed de-escalation policies, the regulation of use of force, and growing calls to forbid police from shooting into moving vehicles. In 2019, after the police killing of Eric Logan in South Bend, Indiana, threatened to derail the presidential ambitions of Mayor Pete Buttigieg, it emerged that the officer who killed Logan had been wearing a body camera, but that the camera was off. South Bend’s police manual, which Lexipol wrote for nearly $95,000, mandated officers wear body cameras — but it didn’t specify that the cameras had to be turned on.
Pieper, Lexipol’s spokesperson, pushed back against criticism of the company. “In many cases our policies go beyond what is required by law,” she wrote. She added that Lexipol “requires officers to consider and use de-escalation tactics when time and circumstances permit” and that “a complete ban on shooting at moving vehicles would prevent officers from intervening to save lives in situations such as a vehicular-based terror attack.” She declined to comment on lawsuits against police departments using Lexipol’s services, and she argued that California’s AB 392 law “does not create a new legal standard for the use of deadly force” — an interpretation that the ACLU contests.
Lexipol’s copyrighted policies have largely replaced free draft policies that were previously circulated by law enforcement associations. And the company has specifically pitched police departments, law enforcement associations, and insurance companies, speaking to “the current challenges” police are facing at a time of widespread protests, the company wrote, for instance, to the chief of the San Francisco police department. “With recent racial tensions rising, now would be the perfect opportunity to re-examine ways Lexipol can help ensure the safety of your officers to avoid any potential risks,” a Lexipol representative also wrote to the chief of the Beverly Hills police department.
“Lexipol has been involved in the past when there have been high-profile incidents or when cities have thought systematically about reforms,” said Schwartz, whose research documents Lexipol’s pitches to various departments. “I would not be surprised if they are taking the opportunity of New York’s executive order to expand.”
Lexipol’s success is largely a result of the severe decentralization of policing in the U.S.: there are 18,000 different law enforcement agencies across the country, and each sets its own policies.
The fact that Lexipol is relatively unknown, even as it has become the single most influential provider of police policy nationwide, doesn’t bode well for police transparency, critics say. Instead, they suggest, Lexipol’s role should be played by government agencies, with the involvement of a range of community stakeholders beyond police themselves, and in a public and transparent way.
“If I had a magic wand, I would create a government agency and state accreditation agencies that were involved in drafting model policies that were regularly updated and that departments could adapt,” said Schwartz. “I do think that Lexipol’s rise is an indication of the failure of our government to regulate law enforcement.”
“It’s just a classic neoliberal privatization thing, it’s like, ‘Well, we’ve got a few experts who can work on this full time, and you’re a dinky police department with very little experience, so just buy our policy products,’” echoed Alex Vitale, who runs the Policing and Social Justice Project at Brooklyn College. “It’s a bad idea. Police consultants should not be making policy, it should be a public process.”
A Seat at the Table
In Saranac Lake, residents first heard about the village’s plans to contract with Lexipol at a village board of trustees meeting. A group of local advocates had attended to ask the village to hire community health workers and devote more resources to dealing with mental health and substance abuse issues, which they said was a much greater concern to the community than crime. Policing takes up about 45 percent of Saranac Lake’s general funds.
The village, a popular tourist destination, had recently installed lamppost banners that said “Racism is a public health crisis.” Gitlis, one of the advocates at the meeting, hoped to make the case for the village to invest in Saranac Lake’s own public health crisis. “Police is the number one spending priority in the village and it seems like our problem, which is true in many small rural towns, is much more around mental health,” she said. “Perhaps we should shift the conversation and funding patterns.”
But at the meeting, after the time allocated to public comment had ended, the police chief updated participants about Cuomo’s recent executive order, and said that the village was looking to partner with Lexipol. He said the contract would cost around $6,000 and would be put up for a vote by the village’s board soon. Shortly afterwards, officials issued the agenda for the next meeting: It included a vote on the contract with Lexipol, for $11,000; notably the vote was scheduled before the time allocated to public comment. Alarmed, local advocates flooded village leaders with emails, and successfully moved up the public comment time slot to happen before the vote. At the meeting, one person after the other raised opposition to the plan, and the vote was ultimately postponed.
Still, Rabideau told The Intercept he believes the board will approve the contract with Lexipol at the next meeting, scheduled for this week. Rabideau said local advocates opposing Lexipol were “well-meaning but very inexperienced with police work” and dismissed Schwartz’s research on Lexipol as a “scholarly opinion piece.” Rabideau added that he saw no problem contracting with a for-profit company, and that once Lexipol’s policy for the village was drafted, there would be hearings to present it to the public and solicit their input. He added criticism that Lexipol’s focus was to limit police liability “doesn’t make sense at all.”
“Yeah we want to limit our liability exposure,” he said. “We want to conform to all the existing laws and procedures, and we don’t want to be sued. We don’t want to cause harm to people and we want to do our best job possible. Our insurance companies always ask us to limit our exposure and that is our duty to our taxpayers. For someone to complain about that is totally ridiculous.”
In fact, insurance companies frequently function as a broker between Lexipol and local municipalities, offering discounted rates to departments that subscribe to the company’s services. Lexipol did not answer questions about how many clients it has in New York state and whether it works with local insurers. But William Worden, the chief of police in Port Jervis, a small city in New York’s Orange County that is also in the process of subscribing to Lexipol, noted that several agencies in the county have contracted with the company in recent years, also thanks to a deal with the local chiefs association.
“By purchasing as a consortium, group services discounts are offered to Orange County Police Agencies and New York State Police Agencies,” Worden wrote to The Intercept. “Once the Lexipol program is fully incorporated, we will research the potential of negotiating a discount through the City’s insurance carrier based upon the services Lexipol provides to the City.”
In an email repeating much of the company’s marketing language, Worden wrote that “Lexipol provides an effective format that links police agencies across the state to customized policy managements, daily updates and training that incorporates industry best practices.” He said that Port Jervis police plans to implement Lexipol’s policies by March 2021, just in time for the April deadline set by Cuomo’s executive order. But Worden said nothing of a key component of the order: that the new plans be developed “based on community input.”
In Saranac Lake, Rabideau repeatedly said that input was important but that ultimately people who were not police had limited understanding of the issues at stake. “If somebody walks in off the street, never been a cop in their life, never rode in a cop car in their life, only googled stuff, and comes in and says, ‘Oh, I want the police department to do x, y, and z.’ Well, does it make sense?” he said. “You have to start with a basis of fact, in conformance with laws and executive orders, and not just lay people coming off the street giving us their wish list. We listen to the wish list, some of it may make a lot of sense, but we have to have a reference point.”
To those who had hoped Cuomo’s executive order would be a first step toward a radically different approach to policing in New York, the outsourcing of that process to Lexipol has felt like a betrayal. “It’s been pretty disappointing to see how this is playing out on a local level, and how it actually doesn’t have much potential to change anyone’s police experience,” said Gitlis. “We were the activists that got Cuomo’s attention to make this executive order happen. We want a seat at the table.”