Police Reform Must Be Bolstered by Legal Action

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Police BlueBy Matthew Segal

Something is missing from the debate over police reform. Though police killings of black men have sparked a nationwide movement to stop police violence, the police can fairly ask whether they deserve all of the blame.

That’s not because current levels of police violence are warranted (they aren’t), or because policing is race neutral (it isn’t). It’s because the chief architects of American policing are not police departments; they’re courts. The movement for police reform should be joined by an equally ambitious movement for court reform.

Courts have shaped American policing by defanging the Fourth Amendment’s prohibition on “unreasonable searches and seizures”. Because the term “unreasonable” is unclear, courts have had to decide which police intrusions, beyond the blatantly arbitrary, go too far. And the US Supreme Court’s consistent answer has been that scarcely anything goes too far.

Perhaps most importantly, the court held in Whren v United States that the Fourth Amendment permits officers to use any violation, like a broken tail light, as a pretext to stop people they deem suspicious. This decision, which just reached its 20th anniversary, helped cement modern-day racial profiling.

Other rulings license the police to escalate the encounters they choose to initiate. In Atwater v Lago Vista, the court held that the police can arrest and jail people for any offense, no matter how minor. This decision authorizes routine physical force, instead of citations or summonses, for seatbelt violations, broken tail lights or Eric Garner’s sale of loose cigarettes.

The court has also held, in Graham v Connor and Tennessee v Garner, that officers can use serious force whenever they could reasonably fear for their safety. These rulings effectively sanction violence based on lenient suppositions about how a hypothetical officer could have felt, even if the actual officer who pulled the trigger acted recklessly or malevolently.

Finally, the Supreme Court has created doctrines that limit the consequences for violating the Fourth Amendment and, accordingly, undermine incentives for officers to honor it in the first place. These doctrines include qualified immunity from civil liability and permission to use some illegally obtained evidence.

Meanwhile, of roughly 800 Supreme Court cases that mention the Fourth Amendment, precisely zero mention de-escalation.

So when a traffic stop results in tragedy, like the recent death of Philando Castile, court rulings lurk behind it like code in The Matrix. The Whren case helps to explain why the police stopped Castile 46 times. The Garner case helps to explain why, when Mr. Castile reached for his wallet, an officer reached for his gun. It is no exaggeration to say that, but for regrettable Fourth Amendment case law, Philando Castile might still be alive.

And for every police encounter that results in death, there are countless others that erode respect for law and increase civilian risk. As a criminal defense and civil rights lawyer, I have seen these cases first-hand. I’ve represented a man who was stopped after the police disabled their own radar and then “visually determined” that my client’s car was speeding; a man stopped by an officer who claimed to have received an anonymous face-to-face tip about my client, but who could not remember the gender of the supposed tipster; and a man stopped by an officer who claimed to have seen a “bulge” in his pocket, but who didn’t search the pocket supposedly containing the bulge.

In each case, my clients were black. In each case, courts sanctioned the police conduct. And in each case, sanctioning that conduct meant gambling with the bodies of everyone who seeks the fourth amendment’s protection, but especially black and brown people.

This is why we must seek to tear down existing Fourth Amendment architecture and replace it with cases more capable of deterring police violence. Public defenders and private lawyers should challenge existing precedent at every turn, and government lawyers should help. Instead of reflexively siding with police, federal and state solicitors general should tell courts that existing precedents should be reconsidered because they endanger people.

Although changing Supreme Court precedent might take time, a call for all courts to reckon with police violence can pay immediate dividends. For example, a federal appeals court in Boston recently confronted the case of a Swat officer who claimed that he had not violated the fourth amendment when he shot and killed Eurie Stamps, a black man who was lying on the ground with his hands up, because he hadn’t meant to pull the trigger.

Several civil rights groups, including the ACLU and the NAACP’s New England Area Conference, submitted an amicus brief that bluntly told the court how denying Fourth Amendment protection for reckless (though accidental) police killings would “imperil public safety,” especially in communities of color. The court agreed; it ruled against the officer, and its very first sentence described Stamps as an “innocent, elderly, African American man.”

Each new legal brief that adds to this call can, like a tweet marked #BlackLivesMatter, amplify the point that the lives of people confronted by the police really do matter, and that the obligation to value those lives does not fall only on the police. But the message to courts must be clear: “Every moment that Fourth Amendment law remains unchanged risks people’s lives.”

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Disclaimer: the views expressed by guest writers are strictly those of the author and may not reflect the views of the Vanguard, its editor, or its editorial board.

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10 thoughts on “Police Reform Must Be Bolstered by Legal Action”

  1. Tia Will

    Instead of reflexively siding with police, federal and state solicitors general should tell courts that existing precedents should be reconsidered because they endanger people.”

    I strongly agree that there should be no, repeat no, legal or court based assumption that the police are the “good guys”. The police should be subject to the same set of laws as is the general public as should lawyers and judges. No one should be held above the law because of their position within our society.

    Yes, I strongly believe that most police officers are genuinely trying to do a good job and to protect and defend. But I would never pretend that there are not some officers who are willing to lie or “spin” information so as to portray themselves in a false positive light and that there are not many more who are willing to turn their heads and say nothing when they know that colleagues are behaving in this manner.

    I also believe that current police training encourages them to truly believe that they are the “good guys” in a “good guys vs the bad guys” scenario every day when they go out of the streets. This mentality was on full display at the educational sessions held in Woodland for the public. The strongest example of this form of “us” vs “them” thinking came on the evening dedicated to the description of gang activity. The instructor was a police officer who specialized in gang activity. His definition of a gang included the following points :

    1) Use of “uniform colors” such as blue or red. 2) Use of group or “gang” insignia 3) Adherence to a code of behavior 4) Willingness to place gang cohesiveness above other considerations 5) a hierarchical structure 6) willingness to use individual and/or group violence to achieve their objectives.

    Looking around that room, the only people there who matched this description were……the police. Ironically enough, the description also did not include a word about de escalation.

     

  2. Davis Progressive

    “In each case, my clients were black. In each case, courts sanctioned the police conduct”

    this is the problem – courts willing to sanction police (mis)conduct

  3. South of Davis

    Tia wrote:

    > I strongly agree that there should be no, repeat no, legal or

    > court based assumption that the police are the “good guys”. 

    Are there any other groups that the court should get “no, repeat, no assumption that they are good guys”?

    What do you think about “guilty until proven innocent” for everyone, or would this just be for cops (who were also white males)?

    1. hpierce

      Bit over the top… but get your drift…

      BTW, when I “go over” feel free to challenge me… am not pretending to be perfect… that would be pure arrogance…

    2. Tia Will

      South of Davis

      I strongly believe in “innocent until proven guilty for everyone”. I also believe in equality under the law and believe that it should apply whether or not one wears a uniform, or a lawyer’s suit, or a judge’s robes. I totally did not understand what you meant about “guilty until proven innocent” for everyone, or for just cops. And I am sure you know that all cops are not white males. I personally know some white females, black males and Asian males who are cops, so really don’t know what you are going for here.

    3. Miwok

      What do you think about “guilty until proven innocent” for everyone, or would this just be for cops (who were also white males)?

      You may go to live in countries that believe that, Mexico, right close and plane fares are cheap. All the cops are Mexicans.

      The cops being killed by BLM supporters are not white cops, they are black, Asian, and Hispanic. oops!

      What I think is you need to understand it is not Cops vs Criminal-Americans. It is Criminal-Americans vs us, the People, and we have tasked Cops with “protecting us” since laws prohibit us from doing it ourselves. When a Mentally ill person, one whacked out on drugs, or a common thief invades my space, I am entitled to defend myself, or I will lose my life You obviously don’t think that way.

      But You, and a lot of other people think I can “talk down” someone like that, and we find out time after time the relatives or caretakers of these people cannot watch them 24/7. So what do you recommend? Not a lot of solutions being proposed, only incrimination and defamation.

      In SF in the 1800’s Police and Courts were so corrupt, Vigilantes were created to dispense Justice. Is it time for that now? The VG rails against Justice in Yolo County, so let’s get to it. Maybe some of the “nonviolent felons” being let out can provide some thoughtful answers?

  4. Frankly

    It’s because the chief architects of American policing are not police departments; they’re courts.

    Nope.

    The chief architects are law makers.  Aka lawyers that get elected to political positions.  Aka people that benefit from lots of strong laws and regulations that they can harvest returns from.

    The judicial does not make the laws.

    A majority of American support legalizing of marijuana.

    A majority of Americans are against aggressive DEA actions and their practice of civil forfeiture (asses seizure).

    But they continue.

    They continue because most politicians are lawyers and this stuff is good for the lawyer industry.

    1. hpierce

      (asses seizure)

      Hope that was a typo… would not want to think of forfeiture of farm animals, or an OK to do a ‘grope’ or worse!  (Tongue very firmly in ‘cheek’ [love double-entendres])…

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