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Courts And Delinquency Intervention/Prevention Programs

Courts And Delinquency Intervention/Prevention Programs

Courts And Delinquency Intervention/Prevention Programs

Policing Through an American Prism

a b s t r a c t . Policing practices in America are under scrutiny. Video clips, protests, and media coverage bring attention and a sense of urgency to fatal police civilian incidents that are often

accompanied by broader calls for reform. Tensions often run high after officer involved shootings

of unarmed civilians, and minority communities, law enforcement, and politicians bring differ-

ent perspectives to both the individual events and broader policy issues. Collaborative reform,

however, can build upon stakeholders’ common ground—a concern for public safety, liberty, and

equality. Achieving this goal requires a symbiotic relationship between the people and the police,

where the relationship is based upon earned trust, a concept that dates back to Sir Robert Peel’s

Principles of Policing and underlies many modern community policing principles. Under the

new administration, the federal government may no longer be a catalyst for police reform. Iden-

tifying and embracing the common ground will only become a more important path for police

reform where individual cities, departments and communities look to chart a more effective path.

a u t h o r . The author is a partner at Wilmer Cutler Pickering Hale and Dorr, LLP, former leader of the NAACP Legal Defense and Educational Fund, Inc., and a Commissioner on the

United States Commission on Civil Rights. This Feature, however, is published by the author in

his personal capacity. Mr. Adegbile has experience representing plaintiffs seeking structural re-

form in policing practices, as well as police departments and municipalities, including the Balti-

more Police department and City of Baltimore, in United States Department of Justice “pattern

or practice” investigations designed to assess the need for police reforms to remedy constitutional

violations. This Feature is based on a speech originally delivered at the Utah Bar Association

Spring Meeting in March 2016. The author is deeply indebted to WilmerHale LLP colleagues

Alyssa Budihas, Adriel Cepeda-Derieux, Michael Gottesman, Brent Gurney, Jane Shim, and Alli-

son Trzop, as well as to Rhea Fernandes and her colleagues on the editorial staff of the Yale Law

Journal for their thoughtful questions, comments, critiques, and suggestions throughout the

preparation of this piece.

policing through an american prism

2223

 

 

 

f e at u r e c o n t e n t s

introduction: policing in america 2224

i. peel’s principles: the foundation of community policing 2229

A. The Origin of Police Departments 2230 B. Incorporating Peel’s Principles into Current Police Reform 2231

ii. the problem through different lenses 2234

A. A Minority Community Perspective 2234 B. A Law Enforcement Perspective 2238 C. A Political Perspective 2240

iii. the future of police reform: common ground 2243

iv. pathways to reform 2246

A. DOJ Pattern-or-Practice Investigations: The Challenge and Opportunity 2247 B. DOJ Community-Oriented Policing Service Collaborative Review 2253 C. Do-It-Yourself Pathway 2255

conclusion: an american moment 2258

the yale law journal 126:2222 2017

2224

i n t r o d u c t i o n : p o l i c i n g i n a m e r i c a

There is an intense focus on policing in America. Bracing headlines describe

uses of force by police resulting in tragic deaths or serious injuries. In New

York, Eric Garner was killed by a New York City Police Department (NYPD)

officer who applied a chokehold while attempting to arrest Mr. Garner for sell-

ing loose cigarettes. 1

In South Carolina, a police officer shot Walter Scott in the

back and killed him when Mr. Scott attempted to flee on foot following a car

stop. 2

In Minnesota, an officer shot and killed Philando Castile, who was a

driver sitting next to his girlfriend during a car stop. 3

In Texas, Yvette Smith

was shot and killed seconds after opening her door for police officers who were

responding to a call. 4

Other headlines capture deadly violence visited upon po-

lice officers in the line of duty. In Virginia, Ashley Guindon was shot and killed

during her first shift as a police officer by a military veteran while responding

to a domestic violence call. 5

In New York, a man walked up to the window of

Rafael Ramos and Wenjian Liu’s police car and opened fire, killing them at

1. At a news conference following Eric Garner’s death, police commissioner William

Bratton stated that “[a]s defined in the department’s patrol guide, this would appear to have

been a chokehold.” Joseph Goldstein & Nate Schweber, Man’s Death After Chokehold Raises

Old Issue for the Police, N.Y. TIMES (July 18, 2014), http://www.nytimes.com/2014 /07/19 /nyregion/staten-island-man-dies-after-he-is-put-in-chokehold-during-arrest.html [http://

perma.cc/WHX5-MXFR]. The Office of the Chief Medical Examiner ruled Mr. Garner’s

death a homicide, concluding that the cause of Mr. Garner’s death was “compression of the

neck, chest compression and being laid flat on the ground while officers restrained him.”

Pervaiz Shallwani, NYPD Officer’s Chokehold Led to Staten Island Man’s Death, Medical Exam-

iner Says, WALL ST. J. (Aug. 1, 2014), http://www.wsj.com/articles/staten-island-man-died

-of-choke-hold-administered-by-nypd-officer-new-york-city-medical-examiner-140692220

0 [http://perma.cc/2AV5-3TDJ]. The grand jury did not indict the police officer who re-

strained Mr. Garner. Evan Horowitz, An Interpretation of the Grand Jury’s Decision on Eric

Garner’s Death, BOS. GLOBE (Dec. 4, 2014), http://www.bostonglobe.com/metro/2014/12/04

/understanding-eric-garner-death-and-grand-jury-decision/s9uQPMvcKPD2mAmFy2ln9J

/story.html [http://perma.cc/BR2P-5TSE].

2. Alan Blinder, Mistrial for South Carolina Officer Who Shot Walter Scott, N.Y. TIMES (Dec.

5, 2016), http://www.nytimes.com/2016/12/05 /us/walter-scott-michael-slager-north-charle

ston.html [http://perma.cc/VPA4-ZJFC].

3. Christina Capecchi & Mitch Smith, Officer Who Shot Philando Castile Is Charged with Man-

slaughter, N.Y. TIMES (Nov. 16, 2016), http://www.nytimes.com/2016/11/17/us/philando

-castile-shooting-minnesota.html [http://perma.cc/64PB-HYB6].

4. Tom Dart, Former Texas Officer Who Fatally Shot Unarmed Woman Found Not Guilty,

GUARDIAN (Apr. 8, 2016), http://www.theguardian.com/us-news/2016/apr/07/fdaniel

-willis-not-guilty-fatal-police-shooting-yvette-smith-texas [http://perma.cc/5JZH-VUAS].

5. Justin Jouvenal, Ian Shapira & Fredrick Kunkle, Virginia Cop Fatally Shot 1st Day on Job;

Army Sergeant Charged in Killing, CHI. TRIB. (Feb. 28, 2016), http://www.chicagotri

bune.com/news/nationworld/ct-virginia-police-officer-killed-20160228-story.html [http://

perma.cc/Z3PZ-YPDP].

policing through an american prism

2225

point-blank range. 6

And a gunman targeting police shot and killed five officers

in Dallas—Lorne Ahrens, Michael Krol, Michael Smith, Brent Thompson, and

Patricio Zamarripa—as they patrolled a demonstration to protest police shoot-

ings of African-American men. 7

These examples are far from exhaustive. 8

Although each fatal incident has unique circumstances, in many places,

news of these tragedies is viewed through a historical lens of poor relations be-

tween police and minority communities. 9

Both local and national dimensions

contribute to a climate of tension, anger, and fear in some communities; similar

sentiments are also present among many in law enforcement. 10

The topic of

6. Benjamin Mueller & Al Baker, 2 N.Y.P.D. Officers Killed in Brooklyn Ambush; Suspect Commits

Suicide, N.Y. TIMES (Dec. 20, 2014), http://www.nytimes.com/2014 /12/21/nyregion/two-po

lice-officers-shot-in-their-patrol-car-in-brooklyn.html [http://perma.cc/6VM4-AWUM].

7. Manny Fernandez, Richard Perez-Pena & Jonah Engel Bromwich, Five Dallas Officers Were

Killed as Payback, Police Chief Says, N.Y. TIMES (July 8, 2016), http://www.nytimes

.com/2016/07/09/us/dallas-police-shooting.html [http://perma.cc/4SMW-ADLB].

8. In 2016, there were 957 fatal shootings by officers, down slightly from 991 in 2015. Kimbriell

Kelly et al., Fatal Shootings by Police Remain Relatively Unchanged After Two Years, WASH.

POST (Dec. 30, 2016), http://www.washingtonpost.com/investigations/fatal-shootings-by

-police-remain-relatively-unchanged-after-two-years/2016/12/30/fc807596-c3ca-11e6-9578

-0054287507db_story.html [http://perma.cc/5GS9-LFCV]. Sixty-two police officers were

shot and killed by civilians in 2016, which was up from thirty-nine officers killed in 2015. Id.

According to the Guardian, 169 unarmed civilians were killed by police in 2016. Jon Swaine

& Ciara McCarthy, Young Black Men Again Faced Highest Rate of US Police Killings in 2016,

GUARDIAN (Jan. 8, 2017), http://www.theguardian.com/us-news/2017/jan/08/the-counted

-police-killings-2016-young-black-men [http://perma.cc/3MNC-92VL]. Overall, firearm-

related police deaths have been on a dramatic downward trend for the last thirty-five years,

especially when adjusted for population growth. See Mark J. Perry, Is There Really a ‘War on

Cops’? The Data Show that 2015 Will Likely Be One of the Safest Years in History for Police,

AEIDEAS (Sept. 9, 2015, 2:58 PM), http://www.aei.org /publication/is-there-really-a

-war-on-cops-the-data-show-that-2015-will-likely-be-one-of-the-safest-years-in-history-for

-police [http://perma.cc/WG79-B8TH] (analyzing data showing that 2013 and 2015 were

two of the safest years for law enforcement, indicating a downward trend dating back to the

Prohibition era).

9. See infra Section IV.B for examples of law enforcement leaders who are acknowledging the

history of police abuses in minority communities. The existence of federal oversight over lo-

cal police is itself one way that Congress has recognized America’s history of police brutality.

For example, the Rodney King beating was the impetus for the Police Accountability Act of

1991, the predecessor to 42 U.S.C § 14141, which authorized the U.S. Department of Justice

to conduct pattern-or-practice investigations. See H.R. Rep. No. 102-242, at 135-38 (1991)

(discussing the King incident and other examples of unlawful police conduct). For an ac-

count of clashes between communities of color and police during the Civil Rights Move-

ment, see BARBARA HARRIS COMBS, FROM SELMA TO MONTGOMERY: THE LONG MARCH TO

FREEDOM (2013).

10. A Pew survey conducted in 2016 found that ninety-three percent of officers say officers in

their department have become more concerned for their safety as a result of “high-profile in-

cidents involving blacks and the police.” Rich Morin et al., Behind the Badge, PEW RES. CTR.

the yale law journal 126:2222 2017

2226

policing in America draws new urgency and attention due to viral video clips of

individual police encounters and police reform movements such as Black Lives

Matter. Policing practices are under scrutiny by the media, the public, politi-

cians, the U.S. Department of Justice (DOJ), private litigants, and police de-

partments. While the events surrounding each incident are different, they give

rise to some common questions. Can we recalibrate police-community rela-

tions, where necessary, to better keep our communities and our law enforce-

ment officers safe? Can we find a way to minimize use-of-force tragedies that

may have grave individual and community costs and serve as flashpoints? Can

we find common ground that provides a starting point for police reform where

such reform is necessary?

As for common ground, it appears at first glance that the various stake-

holders each come to the broader reform conversation with divergent interests.

But, these divergences reflect not competing goals but mainly disagreements

about which policing practices or tactics will best achieve common goals. The

key stakeholders have a common interest in public and officer safety, and in

effective police-community relations. The approach to reforming policing to

improve both effectiveness and police-community relations is not one-size-fits-

all. Departments use varying tactics to meet local priorities and evolving public

safety challenges. Although there is no uniform approach, many police leaders

have recognized that avoidable uses of force erode public trust 11

and in turn

make communities less, not more, safe. 12

Police use of force, however, is not the only area of police-community rela-

tions facing close scrutiny. Legally circumscribed stops are an essential police

tactic, but aggressive stop-and-frisk policies that reach outside the bounds of

lawful limits increase the frequency of citizen-police confrontations to cite an-

65 (Jan. 11, 2017), http://assets.pewresearch.org/wp-content/uploads/sites/3 /2017/01/06171

402/Police-Report_FINAL_web.pdf [http://perma.cc/DR5T-J6GM]. Three-quarters of

officers reported that interactions between police and blacks have become more tense. Id.

11. Policing experts and leaders recognize the need to reduce use-of-force incidents in order to

maintain community trust. See Office of Cmty. Oriented Policing Servs., Emerging Use of

Force Issues: Balancing Public and Officer Safety, INT’L ASS’N CHIEFS POLICE & U.S. DEP’T JUST.

7 (Mar. 2012), http://www.theiacp.org/portals/0/pdfs/emerginguseofforceissues041612.pdf

[http://perma.cc/F2UC-5JBA] (characterizing inappropriate use of force as a breach of the

public trust and emphasizing the importance of maintaining sensitivity to the resulting

harms); Chuck Wexler, Why We Need To Challenge Conventional Thinking on Police Use of

Force, in Guiding Principles on Use of Force, POLICE EXECUTIVE RES. F. 4 (Mar. 2016) [herein-

after Guiding Principles], http://www.policeforum.org /assets/30%20guiding%20principles

.pdf [http://perma.cc/JTG5-UGDZ] (“Most police officers never fire their guns . . . [b]ut

police chiefs tell us that even one bad encounter can damage trust with the community that

took years to build.”).

12. Guiding Principles, supra note 11, at 30 (concluding that rebuilding bridges of trust between

police and the residents they serve will enhance both officer safety and community safety).

policing through an american prism

2227

other example. Some of these practices have been the subjects of legal challeng-

es. 13

The impact of these practices on police-community relations can be pro-

nounced, particularly in some minority neighborhoods. 14

A high volume of un-

justified stops can quickly build resentment for law enforcement and escalate

tensions between the community and the police. 15

Additionally, if every police-

civilian confrontation poses some danger, unnecessary confrontations pose un-

necessary dangers.

At the same time, policing is a difficult and dangerous job. The men and

women of law enforcement deal with very volatile and unpredictable human

problems including domestic violence cases, drug-related violence, gang activi-

ty, widespread availability of illegal guns, and frequent encounters with per-

sons in mental distress. Law enforcement officers regularly place themselves

one emergency call away from tragedy and are charged with making split-

second decisions with potentially grave consequences.

The job is difficult and the tensions in frayed police-community relations

are real. Recognizing the need to share information regarding best practices,

representatives of law enforcement and policing experts, such as the Interna-

tional Association of Chiefs of Police and the Police Executive Research Forum,

the DOJ under President Obama, and community voices, coalesced around key

policing approaches that they believed could enhance public trust and mini-

mize community tension with appropriate regard for public and officer safety

imperatives. 16

For example, President Obama’s Task Force on Twenty-First

Century Policing emphasized that “trust between law enforcement and the

13. See infra notes 55-57, 71 and accompanying text for descriptions of recent lawsuits challeng-

ing police practices.

14. See Floyd v. New York, 959 F. Supp. 2d 540, 590 (S.D.N.Y. 2013) (“The NYPD has known

for more than a decade that its officers were conducting unjustified stops and frisks and

were disproportionately stopping blacks and Hispanics. Despite this notice, the NYPD ex-

panded its use of stop and frisk by seven-fold between 2002 and 2011.”); infra notes 66-70

and accompanying text. Fifty-two percent of the 4.4 million persons stopped by the NYPD

from January 2004 to June 2012 were African-American. Floyd, 959 F. Supp. 2d at 558-59.

Weapons were seized in 1% of the stops of black people and 1.4% of the stops of white peo-

ple. Id. at 559. Contraband other than weapons were seized in 1.8% of stops of black people

and 2.3% of stops of white people. Id.

15. See Wesley Lowery, Carol D. Leonnig & Mark Berman, Even Before Michael Brown’s Slaying in

Ferguson, Racial Questions Hung over Police, WASH. POST (Aug. 13, 2014), http://www.wash

ingtonpost.com/politics/even-before-teen-michael-browns-slaying-in-mo-racial-questions

-have-hung-over-police/2014 /08/13 /78b3c5c6-2307-11e4-86ca-6f03cbd15c1a_story.html

[http://perma.cc/DY2U-KNCX].

16. See PERF’s 30 Guiding Principles on Use of Force, in Guiding Principles, supra note 11, at 33-78

(defining thirty principles, developed by police executives, for reducing use-of-force inci-

dents in order to protect police and public safety).

the yale law journal 126:2222 2017

2228

people they protect and serve is essential in a democracy.” 17

Community-

focused policing models are one way to enhance the bonds of trust and pro-

mote more effective policing. 18

In that model, the public looks to law enforce-

ment to keep neighborhoods safe, and law enforcement looks to the public to

actively aid them in their effort. This approach to policing is sometimes de-

scribed as the “guardian mindset.” 19

When that relationship between the police

and the community breaks down, it can, in some cases, stem from or lead to a

more aggressive style that emphasizes zero-tolerance policing and a so-called

“warrior mindset.” 20

In the latter scenario, the public safety mission may be

more difficult to achieve. 21

The relationship between law enforcement and the community also exists

in a broader context. Properly conceived, law enforcement serves democratic

goals. According to one foundational conception of policing—the Peelian prin-

ciples—the police power derives from public consent and approval. 22

Although

Peel’s Principles are traced to England in 1829, this Feature evaluates the cur-

rent landscape of police reform against these principles, which highlight the

importance of democratic mechanisms and the public good. In his farewell ad-

dress, President Obama observed that democracy does not require uniformity,

but it does require a basic sense of solidarity. 23

The same is true in the Peelian

framework of policing, which emphasizes the capacity of community-focused

policing to serve our communities through well-calibrated practices and poli-

cies.

17. Office of Cmty. Oriented Policing Servs., Final Report of the President’s Task Force on 21st Cen-

tury Policing, U.S. DEP’T JUST. 1 (May 2015) [hereinafter Task Force on Policing], http://www

.cops.usdoj.gov/pdf/taskforce/taskforce_finalreport.pdf [http://perma.cc/5AXU-F8PA].

The task force consisted of four police chiefs, one police union leader, a police academy lead-

er, two academics, and four nonprofit leaders. Id.

18. See infra notes 114-116 and accompanying text for a discussion of one study that found im-

proved community relations after community policing reforms were adopted.

19. Task Force on Policing, supra note 17, at 11-12.

20. Id. at 1.

21. See Kimberly Kindy, Creating Guardians, Calming Warriors, WASH. POST (Dec. 10,

2015), http://www.washingtonpost.com/sf/investigative/2015 /12/10/new-style-of-police

-training-aims-to-produce-guardians-not-warriors [http://perma.cc/V92D-Y6GD] (“Law

enforcement culture should embrace a guardian mindset to build public trust and legitima-

cy. Toward that end, police and sheriffs’ departments should adopt procedural justice as the

guiding principle . . . to guide their interactions with the citizens they serve.”); Task Force on

Policing, supra note 17, at 11; (discussing guardian officer training of thousands of new re-

cruits outside of Seattle).

22. See infra note 41 and accompanying text (discussing the “Legitimacy Principle”).

23. President Obama Farewell Address: Full Text, CNN (Jan. 11, 2017, 11:43 AM), http://www

.cnn.com/2017/01/10/politics/president-obama-farewell-speech [http://perma.cc/L8WT

-VBPD].

policing through an american prism

2229

In this Feature, I argue in favor of a democracy-reinforcing model of polic-

ing that revisits Peel’s principles in the contemporary context. Part I sets out

Peel’s principles and draws parallels between their original application and

their continuing relevance today. Part II considers certain of the key stakehold-

ers who have an interest in police practices and reform, including minority

communities, law enforcement, and politicians. It explores aspects of each of

their perspectives to identify their respective interests and any common ground

between them. Part III examines how Peel’s Principles capture the common

ground identified in Part II and connects this framework with community po-

licing reforms that some jurisdictions have already started to implement. Part

IV describes three different reform pathways that embrace Peel’s vision of legit-

imacy and trust, paying special attention to how the Trump Administration

might impact each of these approaches.

There is no perfect system of policing and no panacea capable of eradicat-

ing crime or the racial tensions that exist both within and outside of the polic-

ing context. This Feature, however, seeks to contribute to the national conver-

sation on policing by considering how key stakeholders may move beyond an

“us versus them” dynamic and may instead identify common ground that can

light a path toward effective models of policing. When stakeholders focus on

their common goals, they will recognize that community-centered policing

built on an earned mutual trust not only promises tangible benefits for the

safety of the public and of law enforcement officers, but also that this approach

can positively affect the climate of police-community relations.

i . p e e l’s p r i n c i p l e s : t h e f o u n d at i o n o f c o m m u n i t y p o l i c i n g

Peel’s Principles were developed at the dawn of the first organized police department in London almost two-hundred years ago, and they took account

of both the value of a formal police force and the people’s skepticism about vesting that force with considerable quasi-military power that could threaten

liberty if unchecked. 24

These principles offer guideposts for the ongoing na-

tional discussion about how to recalibrate our policies today.

24. RADLEY BALKO, RISE OF THE WARRIOR COP: THE MILITARIZATION OF AMERICA’S POLICE

FORCES 29-30 (2013).

the yale law journal 126:2222 2017

2230

A. The Origin of Police Departments

Sir Robert Peel—the father of London’s police force, 25

and later two-time

Prime Minister of England 26

—is credited with the creation of the first modern

police force in London in 1829. 27

Although he and his father pushed to create a

police force in the preceding decades, British concerns about the consequences

for the nation’s history of civil liberties “had repeatedly killed the idea.” 28

In-

deed, many British citizens feared that a standing police force would under-

mine democracy by enabling the state to suppress protest or support unpopular

rule. 29

Concerned about worsening conditions of crime in London, however,

Peel obtained Parliament’s approval to create the police force in 1829. 30

In the face of considerable skepticism, Peel sought to make a formal police

force acceptable to the public by setting out nine principles that every new

officer was to follow. 31

These guidelines became known as Peel’s Principles 32

and were intended to reinforce the notion that officers’ primary responsibilities

were both to fight crime and protect citizens’ rights. 33

Peel’s Principles were

conceived as a conscious democratic limitation on police power. As I argue be-

low, they still offer guidance for modern American police to follow today.

The earliest police forces in America faced similar skepticism. In the Ameri-

can colonies, professional British soldiers executed many of the same law en-

25. Joseph Goldstein & J. David Goodman, A London Guide for 1 Police Plaza, N.Y. TIMES (Apr.

15, 2014), http://www.nytimes.com/2014 /04 /16/nyregion/a-london-guide-for-1-police

-plaza.html [http://perma.cc/P6D7-MJUN]. There is much debate around how much in-

fluence Peel actually had over early policies. See, e.g., Susan A. Lentz & Robert H. Chaires,

The Invention of Peel’s Principles: A Study of Policing ‘Textbook’ History, 35 J. CRIM. JUST. 69

(2007) (casting doubt on the principles’ origins and indicating how the principles may have

been manipulated over time). Regardless of their origins, this Feature argues that the prin-

ciples stand on their own as sound guideposts for modern policing.

26. See History—Past Prime Ministers—Sir Robert Peel 2nd Baronet, GOV.UK, http://www.gov .uk/government/history/past-prime-ministers/robert-peel-2nd-baronet [http://perma.cc

/LXX4-R5DC].

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