Category Archives: cops

Who is a reasonable man?

The law is so very concerned with reason and reasonableness. The Fourth Amendment doesn’t apply if a search is “reasonable”. Actions of parties suing others are judged by what a “reasonable person” would do. Prosecutions have to be proven beyond a “reasonable” doubt.

If you read my post on the latter, you will no doubt have learned that “reasonable”, in the law, is an undefinable term. When you tell a person that “reasonable doubt” means “doubt for which you can assign a reason”, you are telling them the same thing, just backwards and it does nothing to further illuminate this elusive meaning.

The application of reasonableness in Fourth Amendment law is gaining traction in recent years and this demands that we ask the question: who on the Supreme Court is reasonable? Cristian Farias, writing at Slate, points out that when the Chief Justice of the Supreme Court of the United States has never, ever, ever in his life been so much as pulled over by a cop for the measliest of traffic violations, how will he be qualified to decide if a police officer unreasonably lengthened an encounter in order to expand an illegal search?

The apparent confusion in the courtroom was useful in one respect: It illuminated the cluelessness of Chief Justice John Roberts when it comes to traffic stops. Addressing the lawyer who was representing Dennys Rodriguez, the petitioner in the case, Roberts said, “Usually, people have told me, when you’re stopped, the officer says, ‘License and registration.’ ”

This lack of experience with something so frequent and routine as a traffic stop has already affected the way he has ruled in other car search cases:

Though ignorance of the law is no excuse for an average citizen under any circumstance, the Supreme Court decided [PDF] that it is a valid excuse for an officer who suspects you may be committing some offense, even if the offense is not on the books.

“To be reasonable is not to be perfect,” Roberts wrote, “and so the Fourth Amendment allows for some mistakes on the part of government officials, giving them fair leeway for enforcing the law in the community’s protection.”

Roberts’ phraseology about “fair leeway” is lofty, but it turned the meaning of the Fourth Amendment on its head, confounding its role as community protection by the government rather than from the government. And “reasonableness,” at least in the context of policing, has taken on a life of its own at the Supreme Court—leading one scholar to note that its invocation is merely a cover for the court’s “own values regarding the need for the particular police practice at issue.”

Scott Greenfield, following up on a conversation Cristian had with Orin Kerr, fabled lawprof and Fourth Amendment scholar, answers the question: what experience, then, is necessary? In order to decide a ruling in a murder case, judges need not be murderers.

What experience does Chief Justice Roberts bring to our table? From government lawyer to judge, it’s not the experience that the rest of us have, yet this informs his sense of reasonableness. If we were all Supreme Court justices, maybe this would suffice, but we’re not.

There may be no perfect experience for a justice to possess to decide every case before him, but it’s fair to say his experience ought to be better than the experience of watching reruns of CHiPs or Adam 12.  It’s hardly unreasonable to expect some real-world experience from the folks who will decide that our lives are expendable. After all, it’s our time, our lives, at stake here, and the person who will tell us what’s reasonable ought to have a clue how it affects us.

The greatest complaint among defense lawyers when it comes to the appointment of judges has been that politicians routinely nominate those who’ve never worked a day in the real world, instead picking among life-long law professors or government policy lawyers. Those who operate in a world entirely unlike the one whose interactions they will have to adjudicate. The universe from which judges are selected is one where there is little diversity of background and life experience and that background comprises only a small percentage of that of the American population as a whole.

Meanwhile, judges are quite quick to assume certain truths about the difficulties of policing in America and the dangers faced by officers. Their opinions seem to place great weight on ensuring that officer safety is protected and that their decisions enhance the crime solving function instead of hindering it. In other words, they come from a rather strong law-and-order perspective. Their assumptions seem to be that police are almost always in the right and that any interaction that a lay person has with law enforcement is the subject’s fault and tinged with some indicia of guilt.

I’ve written before why it’s easy for people in their position to feel that way and how powerful and addictive a drug living in a cocoon of moral superiority and ignorance is.

If I were to come to your house and tell you what a reasonable temperature is for cooking a steak, would you listen to me, knowing full well that I’ve never eaten, much less cooked steak in my life?

Why should we, then, trust Justice Roberts to tell us whether it is reasonable for a police officer to detain me for 5 or 10 or 20 minutes on the side of the road, while that number just happens to correspond to however long it takes a drug sniffing dog to arrive to ferret out the drugs in my car?

To me, that sounds completely unreasonable.

Welcome to America. Buy one visa and get one police brutality FREE!

Welcome to America, where not speaking English is a curbstomping offense; where any darker skinned individual peacefully walking down the street is a suspect and any cop who asks questions in English, is told “no English”, is too stupid to put two and two together.

Granted, this is Alabama, but by God we are becoming a parody of ourselves: brutish dumb oafs who are outwardly and secretly racist and xenophobic, sitting in our oversized chairs because they’re the only ones that will accommodate our obese bodies, wearing tin foil hats and rocking bath and forth fervently while listening to the crazed ravings of Fox News.

Two videos of the incident later released by Madison police include both audio of the officers involved, and visuals of the exchange. In one video, a pair of officers approach Patel and ask him where he’s headed, what his address is, and request to see his ID. One officer says, “he’s saying ‘no English.’ ”

The second officer continues to ask Patel questions, including “are you looking at houses and stuff?”  Sureshbhai Patel said he tried to tell the officers that he doesn’t speak English by saying “No English. Indian. Walking,” according to the lawsuit. He says he repeated his son’s house number and pointed toward the residence.

Apparently basic instructions and hand signals aren’t good enough for these this Stone Age Alabama cop, so he decides to give Mr. Patel a quick introduction to the curb. Trouble is, this results in Mr. Patel having severe spine and neck injuries and becoming paralyzed.

In a what-should-be-by-now-not-so-surprising-move, prior to the release of the videos, the police were pushing the narrative of a call of a suspicious 30yr dark skinned male walking up and down the street looking at houses and into garages:

The department also released portions of audio and video pertaining to the incident. In a non-emergency call to police, a neighbor described Patel as a “skinny black guy” and said that he’d “never seen him before” in the neighborhood. Patel, he said, was “just wandering around” and “walking close to the garage.” The caller added that he was following Patel at a distance. When asked to estimate his age, the caller guessed Patel was in his 30?s.

The neighbor also told the police dispatcher he was “nervous” leaving his wife because of Patel’s presence in the neighborhood.

Since none of that has been substantiated – the actions, not the call – the narrative has now turned to the only one that it should have been since the beginning: a profound apology, the firing of the officer and a warrant for his arrest.

Great. What about Mr. Patel and the hundreds of people like him who get subject to the psychotic wrath of Officer Friendly? Are their broken spines and shotgun shell riddled faces and their lost lives worth only an apology? If you’ve got such an itchy trigger finger then you probably shouldn’t be a cop. If you see handcuffing and slamming to the concrete a 50+ year old frail man as the only solution to a “stranger walking on the sidewalk” scenario, then perhaps you shouldn’t be a cop. If, if, if.

Maybe it’s time we start questioning how we hire these cops and maybe the burden has shifted to assuming they’re all unstable psychotic bullies.

 

Seattle PD’s arrest of black man is every problem with the justice system in a nutshell

If there were a video and accompanying story that could be used as a textbook example of every problem with our criminal justice system, this is it. First, watch the cruiser cam video (you only need watch from 1:40 to 7:40):

What the video shows is Wingate standing motionless at the crosswalk and Officer Whitlatch pulling over and immediately asking him to drop his weapon and then claiming that he swung it at her.

She then cautions him that the entire encounter is being recorded. Wingate stands there dumbfounded, like someone who never had any negative interactions with anybody:

Wingate is a 70-year-old Air Force veteran and retired King County Metro bus driver had a daily habit of walking and using a golf club like a cane, according to his attorney, Susan Mindenbergs.

But Whtilatch’s version is quite different. This is from the police report:

In the police report filed by Officer Coles about the incident, Whitlatch said “she observed him look at her and aggressively swing his golf club in the direction of her patrol car.” “Because Wingate was still in possession of the golf club,” Coles wrote in the report, “and she was fearful of being assaulted by him, she said that she kept her distance from him upon exiting her patrol car.”

There are four disconcerting things about this:

  1. It seems that Whitlatch is a long-time racist:

Facebook user Cynthia Whitlatch accuses Davis of being a “black racist” and writes, “If you believe that blacks are NOT accusing white America for their problems then you are missing the point of the riots in Ferguson and the chronic black racism that far exceeds any white racism in this country. I am tired of black peoples paranoia that white people are out to get them. I am tired of hearing a black racist tell me the only reason they are being contacted is because they are black solely because I am NOT black.”

in a police department that has had several concerns about systemic racism:

Officer Whitlatch is one of 123 police officers who sued the government last year, at both the federal and city level, to block the Department of Justice–ordered use of force policies. The SPD is under a federal consent decree and is being forced to address the DOJ’s concerns over racial bias and its finding that Seattle police routinely use excessive force.

And obviously a liar, as evidenced by the disconnect between her version and reality.

  1. The police don’t seem to think that it has anything to do with race:

“They know that had this been a white man,” said [former Democratic Washington State representative Dawn Mason], “we wouldn’t be here.” But, in fact, it appears they don’t know that. The Seattle Police Department insists racial bias played no role in the incident.

“If this person had been white,” said SPD spokesman Sean Whitcomb, speaking by phone on Tuesday, “I would imagine it would have been the same outcome. We don’t believe this was a biased policing incident. We don’t believe the officer acted out of malice or targeted this man because of his race.”

At the East Precinct, Mason said, they watched the video with Assistant Chief Nick Metz and East Precinct captain Pierre Davis.

But the police commanders, including Metz and Davis, didn’t see it that way. Mason said they “tried to convince me nothing was wrong.” Metz, in particular, “kept trying to convince us nothing was wrong here. He defended the officer.”

  1. That Whitlatch’s “punishment” was a talking to:

Whitlatch has not been disciplined. “This did not go through the OPA process,” said SPD’s Whitcomb. “Basically, she was talked to by her supervisor.”

She has however, been removed from duty that involves interacting with others:

Seattle police chief Kathleen O’Toole said in a statement this afternoon that she feels “shocked and disappointed” at the way SPD officer Cynthia Whitlatch behaved on Facebook—tacitly confirming that a post-Ferguson Facebook screed about “chronic black racism” and “black people saying poor poor me” was, in fact, written by the same Officer Cynthia Whitlatch who arrested an elderly military vet last summer for “walking in Seattle while black.”  Officer Whitlatch, O’Toole said, is now on administrative assignment, “where she will have no interaction with the public” while a “comprehensive review” of her behavior in this and other cases is completed (along with an independent investigation by the Office of Professional Accountability).

  1. The system condones this behavior. Notice how, in the video, Whitlatch can be heard telling Wingate that it’s all recorded on audio and video. She’s not lying; it is. But she also has to know that the video tells a completely different version than hers. So why is she making that bold claim about the video? Because she knows that no one’s ever going to bother to see it. She knows that it’s a minor charge and the nuisance factor of it is enough to get someone to accept some sort of slap-on-the-wrist rather than spend months contesting what is essentially a minor infraction. She knows that she can get away with it because she’s a cop and what’s in the report will almost always be exclusively relied upon.

And she almost did get away with it:

The next day, prosecutors at the city attorney’s office decided to file a misdemeanor charge of unlawful use of a weapon against him, “based on the SPD incident report,” according to spokesperson Kimberly Mills.

“On that day,” she writes, “Mr. Wingate, who was represented by an attorney, agreed to enter into an agreement under which the case would be dismissed after two years if he complied with all conditions ordered by the Seattle Municipal Court judge.”

What the city attorney’s account of events leaves out, according to Mindenbergs, Wingate’s current attorney, is that the elderly man was told, “If you sign this stipulated order of continuance, it will all be over, basically.” She said her client followed a public defender’s instructions.

As a public defender, I think it’s entirely ineffective and completely defensible. Wingate must’ve been one of hundreds of clients that day. An elderly man accused of threatening a cop with a golf club; a man with no record who probably was just having a bad day. “Your word against the cop’s, Mr. Wingate. And they’re only offering you a deferred adjudication. Who knows if the dashcam even exists?”

And so Wingate pleads guilty. I call it guilt by convenience and that’s what happens when the nuisance value is high enough that people will pled to infractions and small offenses rather than spend the days, weeks, months litigating and fighting minor cases. Most people, believe it or not, don’t like to come to court. Wingate got lucky:

Weeks later, city prosecutors, after conferring with [Deputy Police Chief Carmen Best, who, like Wingate, is black] recommended dismissing both the case against him and the two-year stipulation.

But just imagine how many others there were on that same day, who were harassed, wrongfully accused, arrested and convicted just because an officer like Watlatch decided to flex her muscles.

Well, at least Wingate got his club back and an apology to boot.

H/T: PD Gumshoe

Cops’ thuggery continues unabated; now they’ve moved on to arresting lawyers

This is the hubris that is leading to the downfall of America’s police forces and the public’s erosion of trust in them.

A plainclothes detective in San Francisco had the temerity to arrest a public defender who represented the individual he was seeking to question and photograph. When she fulfilled her Constitutional Duty to tell him to go fuck off (in entirely more polite terms than I would have; I’d have laughed in his face), he threatened her with arrest for, get this, resisting arrest.

After his cronies escorted her from the scene, he continued to question the represented individual about his criminal activity.

During the time Tillotson was not present, Stanbury photographed and questioned her client and another man who did not have an attorney present, acccording to Adachi.

Do you think you’d feel free to refuse the officer’s questions at that point? Go ahead, make his day.

It’s one things for officers to get their way by removing civilians from the scene who object to their searches and seizures, but it takes quite another level of totalitarianism and disregard for the law to arrest and make absent an officer of the court.

But police said the five officers, led by a plainclothes sergeant who was accused of racially profiling a fellow officer in a 2013 traffic stop, were merely investigating a burglary case in which her client and his co-defendant were persons of interest.

Tillotson was cited for misdemeanor resisting or delaying arrest because she obstructed a police investigation, police officials said.

As I wrote just yesterday, there seems to be a growing idea among police officers that people must comply with their orders, regardless of the legality of their actions and anyone who gets in the way, questions or refuses those orders is automatically guilty of resisting or hindering.

Now imagine what these cops would have done if they weren’t in a courthouse, on camera. How many convictions have been obtained on the basis of their representations of confessions by bullied and threatened citizens on the streets.

It might be time for some civil disobedience.

Reminder to cops and prosecutors: it’s not my job to help you

I swear, sometimes, I think everybody needs to go back to grade school for remedial lessons in English and Civics.

I’ve said it again and again, our system of laws is an adversarial system, as opposed to a “truth-seeking” or inquisitorial system. This means there are two sides in opposition: those that try to put people in jail and those who try to ensure that only those who are guilty beyond a reasonable doubt are put in jail. The system can build trust and work relatively properly only when the two sides fulfill their stated roles and don’t exercise improper influence over the other1.

So that means, for instance, that a public defender shouldn’t be arrested and charged with hindering prosecution because his client failed to return to court at the start of a trial.

An Allegheny County public defender was arrested Monday on charges that he gave inaccurate information to a judge’s staff about whether his client had appeared for trial in a sex assault case.  [He] was arraigned Monday night on charges of hindering apprehension and obstructing the administration of law. Court records show Mr. Capone, who could not immediately be reached, was released on nonmonetary bond.

He was arrested for giving “inaccurate information”? What in Blackbeard’s black beard is that?

Mr. Capone represented Jeffrey Derosky, 44, of Imperial, who was charged by Allegheny County police with sexually assaulting a child and other crimes. Mr. Derosky was scheduled to go to trial Jan. 12. Four days later, he was found dead of a self-inflicted gunshot wound in West Virginia.

Sorry, I forgot it mention it gets pretty serious. But here’s the crux of it:

A detective with the county sheriff’s office wrote in a criminal complaint that Mr. Capone told a staff member for Judge Donna Jo McDaniel that Mr. Derosky “had not appeared at court.” The judge’s tipstaff told investigators Mr. Capone asked several times that day whether his client had checked in and stated that “the last time he saw his client was when they met on the Friday before the trial,” the detective wrote.

Unfortunately, it turns out that he had seen Derosky on the morning of the trial and had conveyed an offer of 5 to 10 years to serve. Derosky and his girlfriend had left, both intending to not return. It doesn’t seem that Capone was aware of their intentions to flee.

But it’s still not clear what exactly happened:

The detective contacted the judge’s staff again and asked them to clarify whether Mr. Derosky had come to the courthouse for trial. Confronted with the information from Ms. Blystone, Mr. Capone said he “was unsure how to answer that question and believe that it would violate attorney/client privilege,” the detective wrote.

He said Mr. Capone told the judge’s staff that Mr. Derosky and Ms. Blystone had come to court for the trial, he informed them of the plea deal and Mr. Derosky then cursed and said, “I’m out of here.” Mr. Capone told the staff he went to another courtroom and when he returned about 10 minutes later, Mr. Derosky was gone, according to the complaint.

So it seems that Capone rightly told the cop to fuck off and then did tell the staff that the defendant had come to court.

He was charged with hindering apprehension or prosecution. In Pennsylvania, that crime is defined as:

§ 5105.  Hindering apprehension or prosecution.

(a)  Offense defined.–A person commits an offense if, with intent to hinder the apprehension, prosecution, conviction or punishment of another for crime or violation of the terms of probation, parole, intermediate punishment or Accelerated Rehabilitative Disposition, he:

(1)  harbors or conceals the other;

(2)  provides or aids in providing a weapon, transportation, disguise or other means of avoiding apprehension or effecting escape;

(3)  conceals or destroys evidence of the crime, or tampers with a witness, informant, document or other source of information, regardless of its admissibility in evidence;

(4)  warns the other of impending discovery or apprehension, except that this paragraph does not apply to a warning given in connection with an effort to bring another into compliance with law; or

(5)  provides false information to a law enforcement officer.

I’ve put a strikethrough through those parts that aren’t implicated leaving only those that possibly might be. Those remaining parts, however, are a stretch. First, can it be said that he provided or aided a means of avoiding apprehension or escape? He just told the client the offer, the client said that he’d be back and then he pretended to not have seen the client that day.

Let me tell you. This happens all the time. Clients are late. They show up and then they disappear and you have no idea where they are. Some of them run off when you tell them you’re going to jail. It happens every single day every where in America, multiple times.

My job as a lawyer is to make sure my client doesn’t screwed and even doubly so when he’s doing the screwing to himself. So if I can avoid eye-contact with the judge or go disappear in my office for a few hours and pretend to have forgotten that they’re waiting for my client, you can damn well be sure I’ll do that, because clients that run and stay gone are rare. Most often they’re outside smoking a cigarette, calling their relatives arranging for bail or off for one last decent meal. If making myself sparse for an hour or so while they get their shit together avoids the hassle of a re-arrest warrant and then the subsequent vacating of that warrant, then I’m all for it. Call it judicial efficiency.

(4) is pretty damn stupid to be applied in this context. We warn our clients of their apprehension every day. “Hey, Jimmy Jones, you’re going to jail today.”

Finally, “tipstaff”, whatever that is, don’t qualify as Law Enforcement.

What was the problem here? Clearly, he shouldn’t have pretended to not have seen the defendant when he, in fact, did. But how much different is that than him saying “I don’t know where he is”? What if he had said “I can’t divulge any information without violating attorney-client privilege”? Would that be hindering apprehension? Or are those with guns and gavels simply mad that he dared “lie” to them?

This scenario has been discussed many times in my office and no doubt in other public defender offices across the country. I can tell you that there is a difference of opinion and sharp one at that. There are those who believe that it is not within their job description to do one thing to help cops or prosecutors in arresting and prosecuting their clients. There are others who believe that to omit information such as is the case here is to play with one’s word and trust and potentially expose one to professional sanctions.

Not a single person believes that it rises to – nor should it – a criminal act. That’s nothing more than flexing of the thug muscles by law enforcement and should be denounced from every quarter.

Frankly, I’m more concerned about a system that makes an offer of 5-10 years of jail on the day of trial and then causes a man to take his own life rather than be arrested and incarcerated. Isn’t that the real problem here, worthy of scrutiny?

To make it incumbent upon criminal defense lawyers – at the risk of arrest, incarceration and loss of license no less – to divulge the whereabouts of every client and assist in their apprehension is to make attorneys complicit in the machinery of the prosecution and to fundamentally erode the bedrock foundational principles we pretend to be so proud of.

Rewarding lying cops: America’s crisis of faith

There is a crisis of faith in America. A crisis that exposes the deep chasms that exist in our society. Traditionally a community caretaking function, and thus deserving of the highest levels of faith, trust and respect, policing in America is now a flashpoint; a litmus test through which to determine which side of the privilege aisle you rest your head on.

A Gallup poll released last week showed that while police departments were one of the institutions that Americans on average had the highest confidence in (57% overall), this was belied by deep divides among racial and political lines. Although, it should be noted, that 57% confidence in an institution whose sole function is to protect the lives and liberties of fellow citizens is truly an abysmal number.

Mathematics suggests that this overall percentage would be higher if police departments decided to make an effort to treat black individuals with the same care and respect they seem to treat white individuals. Blacks trust police at around 34% and urban blacks even less so.

Can you blame them? After the events of the last 5 months, starting with the death of Michael Brown, through to the homicides of Eric Garner, John Crawford and Tamir Rice, through to the mass demonstrations, the no-protesting zones, the “rioting”, the curfews, the non-indictments of Darren Wilson and Daniel Pantaleo, all of this piled onto the overwhelming yoke of stop and frisk, tough-on-crime, the drug war and a lost generation, is there any reason to expect that black Americans should trust any police officer?

Is it any surprise that there is no faith in the community caretaking function of visitor-officers, who are increasingly not a part of the community they purport to keep secure? Do we have any right to demand respect for people like Cleveland Police Patrolman Union chief Jeffrey Follmer who repeatedly refer to a slain 12-year old boy as “the male” and justify the actions of a police officer who almost immediately upon arriving at the scene shoots and kills that child? Why would any level-headed, rational, liberty-loving American give any modicum of respect to a police officer who believes, like so many before him, that it is their job to give orders and civilians’ jobs to obey and get out of the way, or die.

“How about this: Listen to police officers’ commands. Listen to what we tell you, and just stop,” he said. “I think that eliminates a lot of problems.”  “I think the nation needs to realize that when we tell you to do something, do it,” he added.

This is an actual statement by an actual police officer made in 2014 in the Greatest Country in the World, with all its individual freedoms and liberties.

Is there any wonder that there is no respect for police officers, when, on the one hand our courts repeatedly remind us that there is no greater public policy interest than one that ensures the truthfulness and integrity of police officers. These are the people we pay to protect us at night as we sleep. These are the people whom we ask to step in front of bullets for us. These are the people of whom we expect honesty, compassion and a desire to “serve and protect”.

Though if you were to step into a criminal courthouse in America, you would see that there is less truthfulness and more truthiness – truth that wouldn’t stand to be held back by facts – when it comes to testimony from police officers. Is it any wonder, then, that when black Americans accused of crimes confront their Blue Uniformed accusers and listen to them twist and churn and shuffle the truth into truthiness, that they would lose all respect?

I know of no sensible, pot-smoking, drug dealing individual who, upon being approached by police officers, would roll down his windows and offer up the information that he was carrying a lot of marijuana in the car. Yet this account of spontaneous confession is among the most popular narratives to be recounted in police reports across the state and, I suspect, the country.

I am sad to report that courts accept this ludicrous version of events. Is it because they willingly turn a blind eye to a dubious report of an encounter with an eye to a greater good – getting the drugs off the street – or is it because they truly have no experience in the world that is the subject of these prosecutions that they must believe that all Americans are Police fearing first and God second. For it is true that the police “serve” and “protect” the demographic that has up to very recently been the one that overwhelmingly populates our judicial benches.

Malice is not required to discriminate against others and I am certainly not implying that such malice exists. The injustice is a product of the way the system is set up and has been for decades.

Yet how do we ask our fellow citizens to trust and respect the police, especially when dishonest behavior on their part is not only not punished by our courts, but rewarded.

Earlier this week, our supreme court reinstated the employment of a police officer who had been terminated for lying while on the job. In a 3-2 opinion [PDF], the majority concluded that while there existed a strong public policy in requiring police officers to be honest, because this particular officer’s lies weren’t frequent or under oath, it wasn’t worth him getting fired. They cite to Brady v. Maryland as an example of the police’s duty to be honest and seek justice, which is ironic, because a prosecutor in Texas has just filed suit against his office for firing him for disclosing exculpatory information. But back to this case.

Officer Justin Loschiavo, of Stratford, CT, was suffering from epilepsy but had them under control. One day, in 2009, he suffered a seizure, lost control of his patrol car and struck two other vehicles. While no one was injured, he was removed from patrol duty. Over the course of the next 6-9 months, he sought to be reinstated. To that end he got clearance from his personal physician and then met with someone the town had hired to evaluate him.

Turns out, he removed documents pertaining to his seizures and his alcohol use from the file that he turned over to the town’s doctor. It was for this lie that the town sought to terminate him.

The majority makes a big deal of the fact that he didn’t lie to other officers or in the performance of his duties, but as the dissent from Justice Palmer points out [PDF], these are absurd statements: he lied and he lied to remain a police officer. He lied about his medical condition which could put others at risk. If that doesn’t strike at the very heart of what a police officer is supposed to do: be honest, be sincere and help others, then I don’t know what would. It makes no difference that he didn’t lie under oath. How are we to trust that when he does take the stand, with someone else’s liberty at stake – that what comes out of his mouth will be the truth and not some self-serving statement?

Justice Palmer concludes:

In sum, the town had no choice but to terminate Loschiavo’s employment as a police officer because his intentional and serious dishonesty has grievously compromised his credibility and integrity, and he has been rendered unfit to serve as a sworn officer.

I think the same can be said of black Americans’ view of police departments as a whole.

[This is my latest at the CT Law Tribune.]

One last gasp: Eric Garner and the failure of racial justice

garner-last-words

The last words of Eric Garner, and perhaps the last gasp of the veil of ignorance that shrouds law-abiding suburban folk from the reality of the racial injustice that permeates and destroys every other part of America.

This is an incredibly complex issue – well, it is an incredibly simple issue to frame, but exceedingly complex to unpack, understand and solve.

Eric Garner was killed, that much is sure. That no one is to blame – legally – for that death is a mild surprise. That a prosecutor shirked his responsibility to do justice yet again is nothing but business as usual.

There is a racial divide in America. That much is certain. But how is it divided? Along what lines or groups or frames of reference? That’s the complex question.

In a must-read article at Salon, Rutgers professor Brittney Cooper explores and explains this:

There is a real disconnect between what white people know and what black people know in this country. Philosophers and political theorists understand these as questions of “epistemology,” wherein they consider how social conditions shape our particular standpoint, and ability to apprehend the things that are supposed to be apparent to us. “How do we know what we know?” is one way we might ask the question.

In other words, it’s a frame of reference problem – it’s a privilege problem – it’s a luxury of the oppressors problem.

The invisibility of black rage, black pain and black humanity are all elements of the same problem. That problem is a framework problem. Because Darren Wilson did not use any racial slur to refer to Michael Brown, our current racial frameworks are inadequate for helping your average all-American white people think through the contours of this encounter. That problem has plagued us since the beginning of this case; it dogged us throughout the Zimmerman trial; and it is helped along by the deep emotional dishonesty that characterizes race relations in the country.

Do you cross the street when you see a black person walking toward you at night? Do you think about the people who do cross the street? Do you think about how many people cross the street and how it impacts our government’s policies and laws? Do you think about how you’ve benefitted from those laws and policies?

 

There has been tremendous support for racial justice in the last few weeks, starting with Michael Brown and now with Garner. Protests, “die-ins”, boycotts and the like. But how does one explain to these well-meaning folks that the fight doesn’t end with the indictment of one officer or two? How does one explain that the racial oppression and injustice in America is omnipresent and attacks from all sides?

And no one denies that high-crime neighborhoods disproportionately overlap with minority neighborhoods. But the intersections don’t stop there. Concentrated poverty plays a consequential role. So does the school-to-prison pipeline. So do the scars of historical oppression. In fact, these and other factors intersect to such a degree that trying to separate any one — most often, the racial one — from the rest is bound to render a flimsy argument based on the fallacy of discrete factors.

Yet people continue to make such arguments, which can usually be distilled to some variation of this: Black dysfunction is mostly or even solely the result of black pathology. This argument is racist at its core because it rests too heavily on choice and too lightly on context. If you scratch it, what oozes out reeks of race-informed cultural decay or even genetic deficiency and predisposition, as if America is not the progenitor — the great-grandmother — of African-American violence.

Cops shoot minorities dead on the streets, but our courts also take away their lives. In the justice system, criminal in code for minority.

It seems, however, that people – usually white, middle-class, affluent – believe that there are two sets of laws and rights: one for criminals (minorities) and one for the “regular” folks. Professor Cooper again:

Too many white people lie comfortably in bed each night with the illusion that justice was served, that the system worked, that the evidence vindicated the view that they need to believe – that white men do not deliberately murder black boys for sport in this day and time and get away with it. Most well-meaning white people need to believe this. For me as both teacher of different kinds of epistemology and as a black person, I do not have the luxury of believing this. I do not have the luxury of stepping over the bodies of Eric Garner, John Crawford and Tamir Rice, leaving my unasked questions strewn alongside their lifeless bodies.

It is easy to believe this. It is psychologically very easy to take the high road; to hold oneself up high above others. It is easy to distinguish oneself from “criminals” or “minorities” who get caught up in the justice system and call them “bad” or “evil” or bemoan their inability to rectify their lives and live the straight and narrow. It’s easy to judge their failure and chalk it up to a “lifestyle”. It’s easy to want to be law and order and support harsh and strict policies for punishment. It’s easy to point out statistics that purport to show that a majority of crimes are committed by minorities and thus, minorities are more prone to committing crimes.

Moral superiority is, after all, a sin. But most of us fail at recognizing our own sins. Most of us fail to see the causes for the differences between us and them. Most of us are oblivious to the opportunities that are present for us, but not for others.

Racial injustice needs to be viewed in the whole: from educational policies to municipal funding to tough on crime to housing to lack of re-entry to the long-lasting impact of felony convictions to the lack of alternatives and rehabilitation to the hidden prejudices that we keep re-affirming every time we watch Nancy Grace or CSI or Law and Order.

So protest all you want today, but realize that you haven’t done your part to change injustice yet. Not even close. You’ve barely opened your eyes as Eric Garner closed his.