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4 Things We Can Do to End Police Brutality and Racial Discrimination

It seems the rest of the world is waking up to a fact that many have known for a long time: police brutality and racial discrimination by law enforcement is actually a real problem. As a criminal defense lawyer, I have spent nearly every day over the past seventeen years talking to people about their interactions with law enforcement, and I am sorry to say that what you are starting to hear about is just the tip of the iceberg. In all likelihood, the problem is much worse than you know. I have also come to conclude that the police are not to blame. This is on us, the American people. We not only allowed this to happen, we asked for it. Somewhere along the line we decided the police could do a better job keeping us safe if they did not have to follow the same rules as the rest of us. Then we encouraged and enabled law enforcement to cover up the injustice that naturally occurred, so that when those affected spoke out, we could claim they were either lying, or must have deserved the treatment they received.

We often talk about how the wealthy and privileged have an unfair advantage when it comes to being held accountable for their misconduct, and while this is undoubtedly true, it is nothing compared to the free reign we have given to law enforcement. The police are allowed to commit violent crimes without any fear of consequences. They are allowed to openly discriminate against people based on any criteria they choose. If the police are accused of misconduct they are allowed to investigate themselves and decide whether they think they did anything wrong. Any complaints of misconduct are kept under seal and shielded from the public. Despite the fact that the exact words a suspect uses when being interrogated by the police, or even their tone of voice, can determine whether or not they spend the rest of their life in prison, the police can choose not to record the interrogation (even if there is a recording device right there), and instead simply give their own summary of what the suspect said, often adding their own take (such as saying that the suspect was acting suspiciously, or appeared to be lying). When four officers claim that all four of their body cameras just happened to accidentally turn off at the same time, we shrug it off and still accept their version of what happened when the cameras were off. We have given officers immunity, meaning they cannot be held personally liable for their actions. Even when police conduct is at issue in a jury trial, when the power to hold the police accountable is put directly in the hands of the public, perspective jurors who have had any experience where they, or someone close to them, were mistreated by the police, are typically eliminated. This results in a jury that, more often than not, sides with the police regardless of the evidence. The good news is that I believe this is something we can fix. Here are four simple things that could make a real difference:

  • CALL IT WHAT IT IS

We say the police "roughed them up a little", "got a little too aggressive", or "profiled" someone, but if the same conduct was committed by someone other than the police, we would call it serious criminal behavior and send the offending party to prison. While I've handled many cases with very similar facts, I'll use one case in particular as an example. My client (we'll call him Dave), who was Black and lived in a relatively poor neighborhood, was walking into the general store near his residence with his hands in the pockets of his sweatshirt. A patrol car pulled up, an officer got out of the passenger side, drew his gun, pointed the gun at Dave, and ordered him to lay face down on the ground. Once Dave was on the ground the officer told him to get his hands out from underneath him. When Dave hesitated, the officer began to punch him repeatedly in the face. A second officer, who was driving the patrol car, rushed over to "assist", and began beating Dave on the back and legs with a baton. Dave was arrested and charged with felony resisting with a gang enhancement. Dave would have happily taken a misdemeanor for his involvement in being assaulted, but the deputy district attorney handling the case wanted prison time, so the case went to trial. At trial, the officer denied drawing his gun (despite multiple eyewitnesses who saw him), and said that he ordered Dave to get on the ground because he couldn't see his hands and thought he might have had a weapon. He said the reason he began punching Dave in the face was also because he couldn't see his hands and thought he might have a weapon. The second officer testified that he could not recall whether or not his partner drew his gun, and said that he just saw his partner punching Dave and assumed he needed help. An expert witness (also a police officer) took the stand and testified that it was his expert opinion that the crime was committed for the benefit of the gang, because Dave was a documented gang member and gang members often resist arrest to enhance the reputation of the gang. Dave had no gang tattoos, no known gang ties, had never been seen wearing gang clothing, denied being in any gang, and had no documented gang involvement. However, the expert testified that Dave was a documented gang member based on the fact that he had been contacted by the police multiple times in known gang territory (his own neighborhood) and that he had been seen around other "documented" gang members, although it was never established that he was actually with these other people (in the same car, in the same residence, or coming or going together), just that he was in the same general area (also in his own neighborhood).

So what would happen in this case if the laws we already have were actually enforced? In order to legally detain someone a police officer must have an objectively reasonable suspicion that a crime is being committed, and they cannot use excessive force to detain the suspect. A police offer is only provided the legal protection that comes with being a police officer if they are acting lawfully. Being Black, having your hands in your pockets, and being in a poor neighborhood is not legal grounds for a detention, and certainly not legal justification for pointing a firearm at someone, so, in the eyes of the law, the officer was no different than a civilian. Pointing a gun at someone without legal justification is an assault with a firearm, a crime which carries up to nine years in prison in California. On top of that the officer could be charged with battery causing injury, false imprisonment, making a false report, and perjury. The second officer would be considered an accomplice and would be charged as a co-defendant with all the same charges. As for Dave, it was his legal right to resist and unlawful arrest, and to defend himself against the unlawful use of force. He should not have been charged with anything.

Discussions about new legislature and better police training are fine, but maybe we should start the conversation by asking, "Should the police be allowed to break the law?" Should this select group be allowed to commit violent crimes that would get a normal person sent to prison?

  • HOLD THE GUILTY ACCOUNTABLE 

So why isn't the law being enforced? For starters, who would enforce it? Do we expect the police to arrest themselves? While prosecutors are the ones who choose which cases to file, they are an extension of law enforcement, and work hand in hand with the police to take a case from arrest to conviction. Dirty cops (those caught stealing, dealing drugs, etc.) are prosecuted all the time, but personally I have never even heard of an officer being criminally charged for the unlawful use of force during a detention or arrest, unless it was lethal force. However, there are some easy ways to change this.

What if, any person or entity accused of wrongdoing had the option of doing their own confidential investigation, and make their own finding as to whether they did anything wrong? If a dead body is found in your house, should you be the one to conduct the investigation? Yet, for some reason this is okay when it comes to the police. We don't need a massive new government agency that polices the police to fix this. Consider this: for most people, the statistical probability of getting a tax audit on any given year is fairly low. However, imagine if there were no tax audits, and taxes were paid entirely on the honor system? I believe that if, in even just a handful of cases, officers who acted outside the law were prosecuted exactly like a person who is not a cop would be prosecuted, it would have a significant chilling effect on police brutality.

Another way to hold the police accountable would be to make it so that officers could be held personally liable. If police officers could be held personally liable, to be a cop you would need to have personal liability insurance. You can rest assured that insurance companies would demand to see an officer's record before they would insure them. Each officer's record of conduct would likely determine how much insurance would cost them, and the very worst officers would likely become uninsurable, and would no longer be able to be a cop, which is the way it should be.

The vast majority of police brutality involves more than one officer (the fact that an officer is less likely to use force when it is actually more likely to be justifiable for officer safety, should tell you something in and of itself). If an officer who stood by and allowed misconduct by a fellow officer could also be held liable, I think we would see that the more responsible officers would start stepping in and preventing interactions from escalating to the point of excessive violence.

  • DEMAND TRANSPARENCY

There's something in criminal justice we call a "pretext stop". This is where an officer detains someone not because they believe that driving one mile an hour over the speed limit, or the fact that a license plate light isn't bright enough, or failing to come to a complete stop at a stop sign when on a bicycle, or jaywalking across an empty residential street, or loitering (hanging out in a public place for no apparent reason), poses a risk to public safety, but because they think they might discover evidence of a crime (drugs, weapons, drunk driving, etc.). Even if an officer detains someone for no reason at all, it may affect the criminal case if charges are filed, but there won't be any repercussions to the officer themselves. One of the problems with this is that it leaves the door wide open for racial discrimination. While eliminating pretext stops would be a complicated legal matter, there's a much easier solution: transparency. What would be so terrible about keeping records of some basic statistics, such as how many people did an officer detain over a period of time, what was the reason for the stop, and what race were they? I don't think any rational person believes all cops are doing a bad job, so all we would have to do is compare statistics between officers working the same or similar assignments. If one officer conducts ten times as many pretext stops on Black people as everyone else, it's a pretty good sign that racial discrimination is happening. There's also a known link between excessive force by the police and resisting arrest charges. If you want to know if an officer is using excessive force, check how often the people they detain are charged with resisting arrest. If you want to see if they're targeting Black people, compare the numbers with other officers. Except you can't check any of that, because for some reason it is all very top secret. The question is, "Why does it need to be secret?" Why do complaints against officers need to be kept secret? Or documented instances of misconduct? Why are officers allowed to turn off their body cameras whenever they feel like it? Why are they allowed to deliberately choose not to record an interrogation? If they have nothing to hide, why are they hiding everything. I think a little transparency would go a long way towards building trust in our police. I think people would realize that there are a lot of officers doing a really good job, and it would allow them to get the credit they deserve, rather than taking the blame for the actions of others. It would also put pressure on problem cops to change their ways, or find a different line of work.

  • SHOW UP FOR JURY JURY DUTY

The reality is that the majority of cases, both criminal and civil, settle without the need for a trial. However, despite the fact that only a small percentage of cases actually go to trial, everything that happens in a case, from what is filed to how it is resolved, is controlled by what the likely outcome would be if it did go to trial. Thus, one single jury verdict can influence hundreds of similar cases. A handful of not guilty verdicts on cases where the officers used excessive force, or judgments awarded to victims of police brutality (it wouldn't need to be millions, just enough to make it worth bringing the lawsuit), would send a powerful message. However, most lawyers would agree that unless the police conduct was simply inexcusable, juries tend to side with the police. This gets down to what I believe is the heart of the problem. The American public does not want the police to kill people or treat people differently based on race, but the majority of people (at least the majority of those who show up for jury duty) don't believe the police should get in trouble for "roughing up" a suspected criminal who just happens to be Black. But I'm not sure you can have it both ways; that you can eliminate the former without eliminating the latter. I think it is naive to say that there is no connection between the routine use of excessive force that does not result in someone being killed, and the occasional use of excessive force that is fatal. When you watch the murder of George Floyd, do you really believe that officer had never used excessive force before? That he had always treated suspects equally and fairly? That he just woke up one day and felt like killing someone? Isn't it much more likely that a pattern of routine violence eventually leads to fatalities?

The great thing about jury duty is that you don't have to be an elected official, a celebrity, a millionaire, a social media influencer, or in any position of power to make a real difference. The first thing you can do is make sure jury services has your correct address, then actually show up when you receive a summons (only about 15% of people who receive a jury summons actually show up). Don't go in with a bias against the police. That will only ensure that you are not on the jury if you answer the questions truthfully. But keep in mind that if you choose to hold the police accountable, and choose not to tolerate police brutality or racial discrimination, you will only be doing what you're supposed to do as a juror, which is following the law.

CONCLUSION

It is my belief that if we insist that the police must be allowed to operate outside the law and cover up their misdeeds, police brutality and racial discrimination will continue to be a problem in this country. However, I also believe that if we come together and decide that the police are not above the law, and demand that they abide by the same rules as the rest of us, this is a very manageable problem.

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