December 8, 2014
Our government… teaches the whole people by its example. If the government becomes the lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. U.S. Supreme Court Justice Louis D. Brandeis
The tip of the iceberg: Not isolated cases
On July 17, 2014, Eric Garner, a 43 year-old African American, was approached by at least four New York City Police Department (NYPD) officers who suspected him of selling contraband (“loosies”) cigarettes outside of a store. In a cell phone video of the incident, Garner denies doing anything wrong and that he is constantly harassed by police. He protests to the officer:
Every time you see me, you want to arrest me. I am tired of it. It stops today. Everybody standing her saw I didn’t do nothin’. I did not sell nothing. Every time you see me, you want to harass me. You want to stop me. You want to arrest me for selling cigarettes. I am minding my own business officer. I am minding my own business. I told you for the last time, please leave me alone… Don’t touch me…
The police did not leave him alone. A half-dozen police officers pounced on Garner. One of the officers goes for the jugular and catches Garner by the neck and puts an illegal chokehold on him. As I saw the video, the image that instantly flashed in my mind was the gentle wary African buffalo under savage attack by a cackle of hyenas on the African plains, except the attack on Garner was happening in the concrete jungle of New York City.
The police slam Garner to the ground. His hands are handcuffed behind his back. Police officers have their knees on Garner’s back and face as he lay on the ground. He cries out, “I can’t breathe” eleven times. Tattooed and pumped up police officers surround Garner inspecting his lifeless body like hunters on an African safari. They touch various parts of his body to determine if he is breathing, if he is alive. They do not administer cardiopulmonary resuscitation (CPR) or provide him any aid whatsoever. An officer says, “He can’t breathe.”
A paramedic arrives on the scene. She feels Garner’s neck to determine if he has a pulse. She tries to communicate with the unconscious Garner. “Sir, it’s EMS. We’re here to help you. We’ll get you in the stretcher. Alright?” She does not administer emergency cardiopulmonary resuscitation, a common procedure used in situations like Garner’s to help a patient breathe and restore normal functions. The paramedic walks away. Garner is placed on a stretcher. Garner was dead on arrival at the hospital.
The cell phone video shows Garner did not pose any threat to the police officers or anyone else standing outside the store. He stood complaining about police harassment in a T-shirt and shorts. He was not armed. He did not shove or attack any police officers nor did he pose any threats to them at any point in the arrest process. In the end, a half-dozen police officers pounced on Garner and choked him to death for the crime of selling untaxed cigarettes. Was Garner a victim of an extrajudicial execution by NYPD officers?
A New York grand jury “investigated” Garner’s death for nine weeks and refused to indict (merely issue an accusation, not actually try him for the crime) Daniel Pantaleo, the police officer who put the illegal chokehold on Garner causing his death so he could stand trial for the death of Garner. By refusing to indict, the grand jury effectively determined it found no probable cause (reasonable grounds) that a crime was committed in the death of Garner. In other words, the grand jury determined Garner died for reasons unrelated to any actions or omissions by NYPD officers or that Garner’s death was a justifiable homicide.
For Garner’s family and the millions of people throughout the world who saw the video of the extrajudicial execution of Garner by the police, the grand jury’s message was simple: “Are you going to believe us, the grand jury who sat deliberating the case for nine weeks, or your lying, thieving and astigmatic eyes?”
What is incredible and incomprehensible about the grand jury’s actions is the fact that there was substantial evidence to support probable cause that Officer Pantaleo who is seen in the video putting an illegal chokehold on Garner is undoubtedly a prime suspect in the second-degree manslaughter of Garner. Article 125.15 of the New York Penal Law provides: “A person is guilty of manslaughter in the second degree when: 1. He recklessly causes the death of another person;…”
The New York law is plain and requires little interpretation: If a person causes a death in a reckless act, that person is guilty of second degree manslaughter. Reckless simply means without regard to the consequences of one’s act or in disregard of a substantial and unjustifiable risk of harm to others.
The grand jury also considered the fact that Officer Pantaleo used an arrest procedure prohibited by the NYPD, which by itself is a reckless act within the meaning of Article 125.15 of the New York Penal Law sufficient to charge Pantaleo for second degree manslaughter. The NYPD Patrol Guide emphatically prohibits use of chokehold:
P.G. 203-11 Use Of Force Date Effective: 01-01-00. Members of the New York City Police Department will NOT use chokeholds. A chokehold shall include, but is not limited to, any pressure to the throat or windpipe, which may prevent or hinder breathing or reduce intake of air. Whenever it becomes necessary to take a violent or resisting subject into custody, responding officers should utilize appropriate tactics in a coordinated effort to overcome resistance…
Officer Pantaleo has a serious history of abuse in making arrests. He had been sued at least three times prior to the Garner incident. According to USA Today, “in a 2013 federal court lawsuit Pantaleo and at least four other officers subjected [the plaintiffs] to ‘humiliating and unlawful strip searches in public view’ after handcuffing them during a March 2012 arrest on Staten Island.” New York City settled the case with the plaintiffs.
On August 9, 2014, Officer Darren Wilson shot and killed an 18 year-old African American named Michael Brown in the city of Ferguson, Missouri, a suburb of St. Louis. The undisputed facts in the killing indicate that Wilson approached Brown and his friend as they were walking in the middle of a neighborhood street. Officer Wilson told them to get on the sidewalk. Words were exchanged between Wilson and Brown. A physical altercation occurred. Officer Wilson fired his gun and struck Brown. Brown and his friend ran from the scene. Officer Wilson chased Brown and continued firing at him. Wilson shot twelve rounds. Brown was struck by 7 or 8 of the rounds. Officer Wilson and other officers left Brown’s dead body in the street for four hours!!!
The local prosecutor who had authority to charge Officer Wilson chose to refer the matter to a grand jury. Years ago, the prosecutor’s father was a police officer who was killed in an incident with an African-American suspect. Many members of the prosecutor’s family including his mother, brother, uncle and cousin had served with the St. Louis Police Department. In 23 years, the prosecutor had taken criminal cases to a grand jury only five times. In all other criminal cases, the prosecutor’s office had filed criminal charges against suspects without a grand jury investigation.
The prosecutor presented Officer Wilson’s case to the grand jury to determine “whether a crime was committed and whether there is probable cause to believe the defendant committed it”. The grand jury refused to indict (issue an accusation) Wilson. Wilson’s case was the fifth time in 23 years that the prosecutor had presented evidence to a grand jury in prosecuting an officer involved in a shooting. In none of the cases the prosecutor had presented to a grand jury did he obtain an indictment.
On New Year’s Day 2009, Oscar Grant III, a 22 year-old African American was fatally shot in the back by Bay Area Rapid Transit Police (BART) officer Johannes Mehserle in Oakland, California. Mehserle and other BART officers responded to a disturbance call at a subway station. Mehserle and another officer forced Grant to the ground and held him. Grant was unarmed. Mehserle stood up and told his fellow officer, “Get back, I’m gonna Tase him.” Mehserle pulled out his gun and shot Grant once in the back. The next morning Grant died. Mehserle was charged with murder, but the jury found him guilty of involuntary manslaughter (accidental, unintended killing). Mehserle was sentenced to two years in prison. He completed his sentence in county jail!
On November 25, 2006, NYPD plain-clothed and undercover officers fired a total of fifty rounds killing Sean Bell, a 23 year-old African American and injuring his friends. Bell and his friends were having a bachelor’s party at a club the officers were investigating for prostitution. Bell and his friends walked out of the club and got into their cars. They were unarmed. Witnesses testified the officers without warning began firing at the vehicle occupied by Bell and his friends. Three officers were charged with various offenses including second-degree manslaughter. They were acquitted!
On February 4, 1999, four plain-clothed NYPD officers from the Street Crimes Unit shot and killed a 23 year-old young African immigrant named Amadou Diallo as he stood outside his apartment. The officers fired a total of 41 shots, 19 of which struck Diallo. Four officers were charged with second-degree murder and all were acquitted!
In July 2014, a cell phone video showed an officer of California Highway Patrol trying to detain a homeless African American woman along the freeway. She appeared to be moving away from him. The officer grabbed her and threw her to the ground. In an act of rarely seen savagery by a police officer, he proceeded to furiously punch her 11 times in the face. He later resigned from the CHP.
The problem of police abuse of authority and excessive use of force is a nationwide problem which affects both the smallest and largest police departments. On December 4, 2014, the U.S. Department of Justice issued its “Investigation of the Cleveland Division of Police”. The report “concluded that [the Department of Justice has] reasonable cause to believe that CDP engages in a pattern or practice of the use of excessive force in violation of the Fourth Amendment of the United States Constitution. We have determined that structural and systemic deficiencies and practices—including insufficient accountability, inadequate training, ineffective policies, and inadequate engagement with the community—contribute to the use of unreasonable force…”
A study released by the American Civil Liberties Union in October 2014, showed Boston police officers disproportionately observed, interrogated, or searched black residents from 2007 to 2010. According to the study, Boston police targeted Blacks in 63.3% of encounters although Blacks make up less than a quarter of Boston’s population. “This racial disparity cannot be explained away by BPD efforts to target crime”, the study concluded.
A 2008 study of racially disparate outcomes in the Los Angeles Police Department reported that there was “prima facie evidence that African Americans and Hispanics are over-stopped, overfrisked, over-searched, and over-arrested. After controlling for violent and property crime rates in specific LAPD reporting districts, as well as a range of other variables, we find that: Per 10,000 residents, the black stop rate is 3,400 stops higher than the white stop rate, and the Hispanic stop rate is almost 360 stops higher.”
It’s not only young African Americans who are targeted by rogue police officers
It is vitally important to note that it is not only young African Americans who are targeted for harassment, intimidation and extrajudicial killings mostly by rogue police officers. Prominent African American actors, athletes, doctors, lawyers and other professionals have been targeted by rogue cops for harassment and abuse.
On December 5, 2015, in an op-ed piece on Linked-In, Kaiser CEO Bernard Tyson compares himself to Eric Garner and Michael Brown. Tyson wrote: “You would think my experience as a top executive — (Oakland-based Kaiser is a $55 billion nonprofit organization) — would be different from a black man who is working in a retail or food service job to support his family. Yet, he and I both understand the commonality of the black male experience that remains consistent no matter what the economic status or job title.”
In February 2014, Los Angeles County Superior Court Judge David Cunningham III, a former police commission president, filed a $10 million lawsuit against two officers of the UCLA Police Department for racially profiling him and subjected him to unreasonable force “by shoving him against his car, handcuffing him and locking him in the back seat of a police cruiser.”
In July 2009, the internationally-celebrated African American Harvard professor (and close friend of President Barack Obama), Henry “Skip” Gates, was arrested by Cambridge police officers for breaking and entering his own house! A white neighbor reported to police that she saw “two black males with backpacks on the porch,” with one “wedging his shoulder into the door as if he was trying to force entry.” When the police showed up, Prof. Gates was already in his house. He turned over his driver’s license and Harvard ID to the officers and asked for their names and badge numbers. They refused to provide the information. Prof. Gates stepped out onto his front porch and was immediately handcuffed and placed in a patrol car. He was arrested on a disorderly conduct charge for allegedly “exhibiting loud and tumultuous behavior.” That led to the “Beer Summit” in the White House Rose Garden when Prof. Gates and the police officer met with President Obama to discuss the issue.
Even American football heroes are not immune to whims of rogue police officers. According to a 2013 USA Today report, “In a league in which 66% of the players are black and 31% are white, black players were arrested nearly 10 times as often as white players (260 to 28), accounting for 88% of those NFL traffic-stop arrests.” The study period covered 2000-2013.
I have personally experienced racial profiling. It was the late 1990s. It was a case of “driving a fancy car while black”. It was the late 1990s. I was driving what some people might call a “fancy” sports car on a major thoroughfare in the City of Los Angeles. I was stopped by an LAPD officer who happened to be white. He asked to see my license and registration. I complied. He checked and determined that I was the registered owner of the vehicle. I politely tried to engage him in a brief conversation about “probable cause”. He was not interested. I asked him if I had done something wrong. He did not respond. He mumbled something about car thefts in LA. He did not elaborate. He handed me my license and registration. I thought I would reciprocate the officer’s courtesy by discreetly jotting down his badge number and the license plate number on his patrol car. He got into his patrol car. I drove off. I could see him in my rear view mirror slowly following me for some distance. I was very unhappy with the whole affair. It was clear to me that the officer had no legal cause to stop me and most likely thought I was not the lawful owner of the car. Nine months later, I was able to resolve the matter with the LAPD satisfactorily. I had another less flagitious encounter with LAPD in the late 1990s which I shared with Los Angeles Magazine.
It’s about trigger-happy, testosterone-driven rogue police officers
It is unfair and illogical to paint all white police officers as racist. Police abuse of authority is not the monopoly of any one race. It is equally absurd to deny the fact that in every police department in America, there are trigger-happy testosterone-driven rogue cops who have converted the universal police slogan “to serve and protect” into “to stereotype and to provoke”, particularly citizens of color. It is immoral to demonize all police officers. It is equally immoral to demonize all young Black men. It is not about police power; it is about constitutional rights.
There is no doubt that police officers have a tough and dangerous job to do keeping the peace. Police are often disliked when they do their jobs and make lawful arrests or issue a traffic citation. When there is an emergency, police are called to form the first line of defense. There is equally no doubt that keeping the peace for the police does not mean policing the communities they serve as war zones with criminals hiding behind every rock and in every alley trying to kill them. It is impossible for a police department to police community when its officers present themselves as armed predators patrolling the streets or projecting the image of an occupying militarized force.
When the community points an accusatory finger at the police and declares the police have year-round “open hunting season” on them, it is time to pause and take swift remedial action. When the police are perceived by citizens of color as the police, jury and executioner, it is time to pull of the Constitution and demand accountability. A peace officer can never bring peace by a trigger-happy use of the implements of war.
Why are nearly all police killings of civilians deemed “justifiable homicides”? Do the police have a license to kill?
Every time a grand jury refuses to indict (refuse to issue an accusation) or a petit jury (jury) acquits a police officer of homicide, the practical meaning of the juries’ actions is that the killing by the police officer is justified. Justifiable homicide could mean several things: the officer killed without intending to kill or accidentally, the officer killed in self-defense or the officer killed in the proper performance of his duties as a police officer. The troubling fact of the matter is that in the overwhelming number of cases, police killings of citizens are excused as justifiable homicides before trial by grand juries or after trial by petit juries. How could that be?
A recent study by the Wall Street Journal aimed at verifying the accuracy of the FBI data, examining internal records on killings by officers from the nation’s 110 largest police departments found, “at least 1,800 police killings in those 105 departments between 2007 and 2012, about 45% more than the FBI’s tally for justifiable homicides in those departments’ jurisdictions, which was 1,242, according to the Journal’s analysis. Nearly all police killings are deemed by the departments or other authorities to be justifiable. The full national scope of the underreporting can’t be quantified. In the period analyzed by the Journal, 753 police entities reported about 2,400 killings by police. The large majority of the nation’s roughly 18,000 law-enforcement agencies didn’t report any.”
Rogue police misconduct is not limited to excessive use of force and homicides
Rogue police misconduct is not limited to excessive or deadly use of force, harassment, intimidation, racial profiling and others forms of abuse of authority. Rogue police abuses and misconduct cover the whole gamut– false arrests, beating and even torturing of suspects, testi-lying (lying in court), trumping up a case (fabricating charges), filing false police reports, framing suspects, intimidation, verbal abuse, arbitrary use of tasers and chemical agents on suspects, improper searches, surveillance abuse, selective enforcement and on and on.
I take great pride in my legal efforts which helped stop rampant police misconduct in the interrogation of criminal suspects in California in the late 1990s. In 1967, the United States Supreme court decided Miranda v. Arizona, arguably the most famous criminal case in U.S. legal history. In that case, the Court established what has come to be known as the “Miranda rule”. That rule requires a police officer to advise suspects they have arrested or placed in custody of their constitutional rights to remain silent (and not answer any questions by the officer) and their right to a court-appointed lawyer during any questioning (interrogation). Any confessions or admissions by suspects obtained without a “Miranda warning” are inadmissible in court.
In the early 1980s, and possibly long before that, certain police departments and prosecutorial offices in California encouraged their police officers to engage in a practice known as “outside Miranda interrogation.” That practice basically involved grilling criminal suspects after they asserted their rights to remain silent and demand a lawyer present during any police interrogation. The illegal grilling was supposed to aid in improved crime detection, apprehension and prosecution. Prosecutors and police departments told their officers that they can continue to interrogate suspects and obtain confessions that could be used for a variety of investigative purposes such as neutralizing safety threats, locating weapons and evidence, identifying witnesses, incriminating accomplices and obtaining information for search warrants. The officers were also told that they can grill suspects who have invoked their right to remain silent and demand a lawyer and obtain admissions that can be used at trial for impeachment (that is if the defendant testifies at trial, the officer could testify and tell the jury he was lying because he told a contradictory story outside of court such as during his arrest.)
In People v. Peevy, I represented a defendant accused of attempted second degree robbery of a fast food restaurant manager. At trial, the arresting officer testified that he advised Peevy of his Miranda rights and that Peevy declined to talk stating, “I would rather have an attorney here.” The officer did not care. “I kept talking with [Peevy] for impeachment purposes. I just continued to talk about the crime.” The officer testified he knew he was violating Peevy’s Miranda rights; but he believed from his training that he could continue to grill Peevy to obtain evidence for “impeachment [so that if] the defendant gets up on the witness stand and starts telling the court he didn’t do it. We can use this. The way I understand it is we can use it against him.” The trial court allowed the officer to testify after Peevy testified on his own behalf. Peevy was convicted and sentenced to two years in prison.
In the California Supreme Court, the principal issue on appeal was whether an admission obtained in intentional and deliberate violation of the Miranda rule by a police officer could be used to impeach a defendant who testifies on his own behalf. (The full opinion of the California Supreme Court could be read by clicking here.) The Court denied Peevy’s appeal relying on a line of United States Supreme Court landmark cases: “The Harris rule [from a U.S. Supreme Court decision in Harris v. New York (1971)] applies even if the individual police officer violates Miranda and Edwards by purposefully failing to honor a suspect’s invocation of his or her right to counsel.”
It was a deeply disappointing outcome as I stated in my interview with the Los Angeles Times. “The whole notion of deterring police misconduct during interrogations has been dealt a severe blow. It is a grand invitation to officers in the field to engage in deliberate disregard of Miranda and to interrogate until the suspect makes incriminating statements.” I filed a petition for review in the United States Supreme Court. After directing the California Attorney General to respond to our petition, the Court denied certiorari (an order directing the California Supreme Court to deliver its record in the Peevy case) in People v. Peevy, 17 Cal.4th 1184, cert. denied, 525 U.S. 1042 (1998).
However, for a small group of lawyers dedicated to defending the American constitutional right against self-incrimination and the right to counsel, the California Supreme Court decision was merely a bump on the road. We shifted the battleground to put an end to the egregious police misconduct of intentionally and deliberately disregarding suspects’ rights to remain silent and have a lawyer present during custodial interrogation to the California State Legislature and the federal courts. Others kept the fight in the U.S. Supreme Court.
The first decisive victory in the defense of the Miranda rule came in 2000 in Dickerson v. United States, 530 U.S. 428. In Dickerson, a purported Congressional overruling of Miranda was challenged. The issue in Dickerson echoed Peevy’s. The underlying rationale for “outside Miranda interrogation” was the claim that Miranda warnings were actually not compelled by the U.S. Constitution, but rather they were measures merely enacted as a matter of judicial policy. In other words, the Miranda rule is NOT a constitutional but a judge made rule.
Chief Justice William Rehnquist slammed the idea that the Miranda rule is a judge made rule. Writing for the majority, Rehnquist held that Miranda was a “constitutional decision” of the Supreme Court and that such decisions cannot be overturned by a law passed by Congress. He argued that the Miranda rule is established precedent and that “the principles of stare decisis weigh heavily against overruling it now…” He noted that “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.” Dickerson established the Miranda rule is a constitutional rule!
In 2000, in California Attorneys for Criminal Justice v. Butts, the Ninth Circuit U.S. Court of Appeals ruled police who violate Miranda and coerce confessions from suspects may be held personally liable. The Court held that questioning outside Miranda is something “a reasonable police officer should have known [to be] improper.” The Court declared, “Officers who intentionally violate the rights protected by Miranda must expect to have to defend themselves in civil actions.” In other words, police officers could be sued in their individual capacity (not as police officers) in a civil case and be forced to pay damages to victims.
In March 2001, California State Senator Gloria Romero introduced Senate Bill 1211 requiring that “Peace officers shall be trained that pursuant to the holdings of Harris v. New York (1971) 401 U.S. 222 and People v. Peevy (1998) 17 Cal.4th 1184, it is impermissible to continue to question a suspect who is in custody once that suspect has invoked his or her right to remain silent, or right to have an attorney present…”
In 2003, in People v. Neal, the California Supreme Court finally validated our central argument in Peevy. The Court held, “…[W]e conclude not only that those confessions were inadmissible in the People’s case-in-chief because they were obtained in violation of Edwards, but also that they were inadmissible for any purpose because they were involuntary. The consequence of the officer’s misconduct—the absolute inability to introduce the confessions at trial—is severe, but is intended to deter other officers from engaging in misconduct of this sort in the future.”
Where do we go from here? The need for transparency and legal accountability for rogue police officers
There is a massive body of policy studies and recommendations on how to deal with issues of police biases, racial profiling, excessive use of force and so on. There is a consensus of expert opinion on how to reduce racial tension between the police department and the community, prevent riots and destruction of property, improve officer safety, enhance the overall perception that community members presently have about police officers and improve community relations. Many experts have suggested a key solution is found in community policing (collaborative partnerships between the law enforcement agencies and community leaders and organizations to develop effective solutions and increase trust in the police) and improved training including sensitivity training for police officers. Some say the police should act as peace officers and not paramilitary forces. They should be demilitarized. Many are now suggesting police officers should be equipped with on-body cameras to record citizen contacts and arrests. I believe all of these and other proposals are workable, reasonable and likely to produce significant positive changes in reducing police abuse of authority.
My personal view is that police abuse and misconduct is a structural problem made worse by rogue cops. In other words, the leadership of police departments and local governments tolerate and implicitly encourage aggressive law enforcement particularly in communities of color. Given the lack of direct and decisive action by the police and local political leadership to prevent police abuse of authority combined with a police culture of silence, it is unlikely that any real change could take place in the relations between police and communities of color.
My proposals are slightly different and three-fold. As the Ninth Circuit held in California Attorneys for Criminal Justice v. Butts, there needs to be a law or judicial precedent which simply states, “Police officers who intentionally violate the rights of citizens in their line of duty must expect to have to defend themselves in civil actions.” In other words, police officers who intentionally violate the rights of citizens could be sued in their individual capacity (not as police officers) in a civil case and be forced to pay damages to victims out of their own pockets!
There is no reason why taxpayers should fund the criminal acts of police officers. The cost of police abuse to tax payers is enormous. Brutality-related lawsuits have cost Chicago taxpayers $521 million over the last decade. In 2013 alone, the City of Chicago paid out $84.6 million in settlements, judgments, legal fees and other expenses, more than triple the budgeted amount. In 2011, New York paid out a mind-boggling $735 million for police abuse and other claims. Other cities including Baltimore, New York, Dallas, Denver, Cleveland and many others have shelled out hundreds of millions of dollars to settle police abuse cases over the past decade.
Second, state laws should make it easy for civilians suing police officers in brutality and misconduct cases to access the personnel files of the officers in such prior actions. For instance, in California, defense lawyers often file a “Pitchess motion” (named after a California Supreme Court case Pitchess v. Superior Court (1974)) when they believe that their client has been the victim of police misconduct including use of excessive force, racial profiling ,coercing confessions, and dishonesty in police reports, etc. But courts and police departments constrict the use of a Pitchess motion allowing for very little useful information from the officer’s personnel files to be revealed to the victim. Police departments often destroy records of police misconduct complaints after 5 years.
Third, police departments should tighten their internal disciplinary procedures and maintain higher standards of professional and ethical conduct from their officers. Police officers who engage in serious ethical violations should be sanctioned and even fired regardless of whether criminal charges were filed. All professions have ways of sanctioning their members for noncriminal activity that involves “dishonorable, unethical or unprofessional conduct of a character likely to deceive, defraud, or harm the public.” Police officers should be held to the same ethical and moral standards.
“I can’t breathe… We can’t breathe…”
As I have repeatedly indicated in this commentary, I do not believe all white police officers are inherently racist. I also do not believe no African American, Hispanic, Asian police officers engage in police misconduct or abuse of authority. All professions have their bad apples. There are bad lawyers, doctors, engineers and so on. Police departments are microcosms of American society. They reflect the flaws of the broader society. But there are real issue of racial injustice in American law enforcement. Last week, New York Times columnist Nick Kristoff observed: “White Americans may protest that our racial problems are not like South Africa’s. No, but the United States incarcerates a higher proportion of blacks than apartheid South Africa did. In America, the black-white wealth gap today is greater than it was in South Africa in 1970 at the peak of apartheid.”
In over two decades of criminal defense law practice, I have learned that there are some individuals who should never have been allowed to become police officers or join any law enforcement agency. There are some individuals on police forces in the U.S. who not only wear a badge but also carry huge chips on their shoulders. They are angry and hateful individuals who are mad at the entire world. They lack the temperament, maturity and mental stability to become responsible police officers. They view their membership in the police department not as peace officers but as members of a “legal” gang with a license to beat, shoot and kill anyone they want. They regard their badge as a license to kill and abuse citizens with impunity. They hide behind the “blue wall of silence” and commit crimes. They come to believe that they are accountable to no one. They know that if they commit a crime, it is unlikely that they will be indicted by a grand jury or brought to trial. They know they are unlikely to face disciplinary actions before the police boards. They believe they are in fact not officers of the law but officers above the law. They develop a conviction that they can commit any act brutality, harassment, discrimination, false arrest or abuse of power without fear of sanctions or penalty. They become rogue police officers.
When rogue police officers are immersed in the Manichean culture and mentality of “Us, the good guys” and “Them, the bad guys”, things go awry often for citizens of color. The rogue police officers see themselves as guardian angels and everyone else, especially people of color, as sinister demons. Their little world becomes the grand battleground for good and evil. They must stick together at all costs. They can only trust and rely on each other. If they do wrong, it is covered up. It is swept under the rug of silence.
Police state? Police city?
The greatest privilege of being American is the protection one has by a living, breathing Bill of Rights. It is easy for many African Americans to give up on their rights because of the abuse and mistreatment of rogue police officers. That is the greatest victory anyone can hand the rogue police officers. In his farewell speech in 1837, U.S. President Andrew Jackson said, “ … eternal vigilance by the people is the price of liberty, and that you must pay the price if you wish to secure the blessing.” As Americans we must fight for our liberties every day and pay whatever price is required to “secure the Blessings of Liberty to ourselves and our Posterity” as stated in the Preamble to the U.S. Constitution. Frederick Douglass, a former slave in America turned abolitionist, echoed a similar sentiment. “The limits of tyrants are proscribed by the endurance of those whom they oppress… If there is no struggle, there is no progress. Those who profess to favor freedom, and yet depreciate agitation, are men who want crops without plowing up the ground. They want rain without thunder and lightning. They want the ocean without the awful roar of its many waters. This struggle may be a moral one; or it may be a physical one; or it may be both moral and physical; but it must be a struggle. Power concedes nothing without a demand. It never did and it never will.”
All Americans must join hands to slay the demon
In his grand jury testimony, Officer Darren Wilson testified that when he looked in the face of young Michael Brown, “It looked like a demon”. When he got out of his patrol car and fired a dozen shots, he must have believed he was shooting at a black demon, not a human being. I wonder if Officer Wilson thought that when Michael Brown looked at his face, he too saw a demon, a “white demon”.
The sad fact of the matter is that there was a real but invisible demon standing between Officer Wilson and young Michael Brown. It is a demon with no color, with no face and no race. It was the demon of racism, hate, abuse of power, a police culture that tolerates abuse and brutality. That demon is the threat to American liberties. That is why all Americans must join hands and banish the demon from the land once and for all.
Violence does not bring justice or peace. Violence begets more violence. Some rogue police officers may believe police power comes from the barrel of the gun. Law of the gun must be replaced by the rule of law. A gun in the hands of an angry, frustrated, insecure police officer is a time bomb waiting to go off at any time.
I do not believe that Officer Darren Wilson got up on the morning of August 9, 2014 to kill Michael Brown. But I believe Darren Wilson had the mindset developed over the years that predisposed him to kill. Officer Wilson came from a small police department in Jennings, Mo., that was so torn by racial strife between its white officers and black residents that the City Council fired the whole force and built a new one. Officer Wilson likely brought his issues to Ferguson, Missouri.
Police force, police power; peace officers, peacekeepers
It is absurd to believe that most individuals who seek to be policemen do so with the motivation to brutalize and abuse citizens. Some who become police officers may be attracted by the power and status of the job. I have to believe that, given the dangerous and stressful nature of police work, the vast majority of those who join police forces do so to help people and protect society.
Unfortunately, police power like any other kind of power exercised by humans is inherently corrupting. A police officer who feels unaccountable to anyone, invincible and cynical sooner or later becomes misguided and begins to misuse his power to arrest with a sense of unchallenged authority. S/he begins to expect that s/he commands obedience and respect from the public by the virtue of the fact s/he wears a uniform and a shiny chrome badge.
Who polices the police? I would like to think each police officer would police him/herself by conforming his conduct with the requirements of the Constitution. I would like to believe each police officer would have the integrity and ethical standard to perform their duties with a clear conscience and professional integrity. But I may be naive in my expectations. That is why I have proposed my three policy prescriptions above.
I hear a lot of talk about a “conversation about race”. That is great. What happened to Eric Garner, Michael brown and the rest is not a conservative or liberal issues. It is a human dignity issue. It is an American issue of justice under the law. we should all discuss it.
I hope the “conversation on race” will not end up demonizing one side or the other but humanizing all sides. I hope we will not criminalize one side and canonize the other in the national conversation. I hope we will not para-militarize one side and racialize the other.
I am a firm believer in Dr. Martin Luther King’s teachings. He said, “In the final analysis, love is not this sentimental something that we talk about. It’s not merely an emotional something. Love is creative, understanding goodwill for all men. It is the refusal to defeat any individual. When you rise to the level of love, of its great beauty and power, you seek only to defeat evil systems. Individuals who happen to be caught up in that system, you love, but you seek to defeat the system.” All Americans must rise up and defeat a system that dehumanizes and deprives any American of their right to life, liberty and the pursuit of happiness.
It has been my greatest honor and privilege to defend American civil liberties. There is no greater honor that I could receive than the opportunity to remain in the trenches fighting the powers that be wherever they be. I am proud that the Peevy decision has been cited in hundreds of cases throughout the United States, including the United States Supreme Court. I am proud that Peevy now is cited as legal authority with landmark criminal cases in American criminal law such as Miranda, Edwards and Harris. I am proud that I helped stop a particularly insidious type of police misconduct in California and elsewhere.
I have not commented much on human rights issues in America. My primary preoccupation over the past eight years has been human rights in Ethiopia and Africa. However, there is absolutely no question that my passion defending American civil liberties is no less than my passion in defending human rights in Ethiopia or other parts of Africa. That is because I am convinced to a moral certainty that the enemies of liberty have no race, no ethnicity, no gender, no conscience, no morality, no country and no nationality. If the price of liberty is eternal vigilance, I will gladly remain in the legal trenches eternally.
Professor Alemayehu G. Mariam teaches political science at California State University, San Bernardino and is a practicing defense lawyer.
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