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Protests, Police & Performance

There have been many protests across the country in recent days following the homicide of George Floyd a black American citizen in Minneapolis, Minnesota. The incident which fomented these protests will be played out in the courts of that state and what happens-happens.

I am going to spent the next few minutes discussing the history (of sorts) of how we got to the current level of anger and frustration. Then I have some suggestions for you and others. Much of the issue lies in the laissez-faire (or non-interference) approach to the police which arose some almost forty years ago.

Let me explain. In 1982, I defended a criminal case for some clients in federal court. As a part of that defense I filed a motion to suppress the evidence seized from and against my clients due to the police violating my client’s rights under the U.S. Constitution. The illegal search and seizure was found to have occurred and the court granted my motion to prevent the government from using this illegally obtained evidence. Not surprisingly, the government now in a position of having to dismiss this case, appealed the ruling to the federal appellate court. The case was fully briefed and oral argument was held in September of that year. As usual the circuit judges had incisive questions to determine whether the district judge was correct or whether the ruling should be reversed. The results were the case was affirmed and it was dismissed.

Over the following years the courts began to take a more protective posture to police conduct. There was a period where the rule of law by which I was successful in my case above was being criticized as a “judge made rule”. Suddenly we were seeing other “judge made rules” which excused police mis-conduct under the concept of “officer safety” or “exigent circumstance” or probably the worst excuse “good faith”. Among these criminal case rulings the courts also increased the protections in civil cases by expanding the concept of “qualified immunity”.

It needs to be understood that the changes occurred slowly and incrementally not suddenly or abruptly. As the mis-conduct pushed the boundaries, courts found excuses to permit the expansion. As anyone with a two year old child knows, once the boundary is moved it will continue to be pushed as long as possible. The police were and are no different. When a group (such as police) realizes it will no longer be held accountable–it will react, largely, accordingly and that will not include self-restraint.

When courts hold that it is permissible for the police to lie to you to get the information which they desire or that their physical abuse of you is not barred by clearly established law and the officers go “Scot free” it re-enforces their mind set that they are untouchable. This physical abuse includes serious bodily injury and death in some cases. These legal concepts contend that suppression of evidence retrieved by police mis-conduct does not deter other police mis-conduct because the police officer was acting in “good faith” when he violated your rights. That it would thereby be wrong to punish the police officer for his mistake. Try using that as a defense in your case, “Well, I was wrong but I did what I did in good faith.” The result is you will be found guilty.

It should be uncontroversial to say the police, as law enforcement officers, should also be law abiding officers. It is further a fact that none of these officer exemptions from the law can be found in the law, specifically the U.S. Constitution’s Bill of Rights. Look at the 4th Amendment and point to the officer safety exception, the exigent circumstance exception or the good faith exception. You cannot because they do not exist. The same can be said with the 5th Amendment, there are no police exemptions from its protections.

What needs to be done? There are numerous talking heads on national television programs advocating “police reform”. Certainly that is a component of the remedy. But a larger component lies in the courtroom. Courts must return to making everyone subject to the law–this includes the police. It is not enough to say we will let today’s violation pass but do better tomorrow. The court’s must return to the days when there were consequences for police misconduct–judicial consequences. I once had a state court judge, after an officer elected to go on vacation than appear for a known court date, bemoan that he got no respect. Why should the police respect the courts if the courts are going to give them a pass on virtually everything violation they commit? We hold soldiers to several standards of conduct both in war and on the battlefield and they are punished for violations by the military. Why are police exempt from violation of standards?

Allied in this odd relationship are prosecutors. These men and women are elected or appointed to prosecute violators of the law and insure that justice is not just us. Yet prosecutions for police misconduct are extremely rare, even when death results. George Floyd is not the first person to be essentially crushed to death. Several years ago another man (ethnically hispanic) died after a similar situation to Mr. Floyd’s. No one was ever prosecuted nor held liable. The District Attorney found no connection to the death by the police conduct though he was kicked and crushed by multiple officers. The medical examiner opined no connection. The local news media, often quick to point out the past of citizens arrested, did no investigation of its own and took officialdom at its word.

The fact remains that people of color are treated with less respect and deference than their white counterparts. We as a society should not permit this to continue. It is not about playing the race or any other card, it is about human dignity and the rights we are all supposed to enjoy as members of this society. Demanding that the police act appropriately is simply the right thing to do. Demanding the courts hold them equally accountable for their misdeeds is demonstrating a just system. One of the factors in sentencing a person in federal court is “to promote respect for the law”, this respect is engendered in the society at large by not creating an exempt class even if we call them“law enforcement”. The “anti-hero” fictional cops who violate rights and ignore the law in the name of “justice” are doing a disservice to society when society comes to believe that such conduct is okay. That is the opposite of law and order that is the law of the individual of the vigilante of the mob and we are all less safe and less free because of it.

This is not a time for partisanship. This is not a time for excuses. This is not a time for making false comparisons. Policing can be dangerous work, but it is made more dangerous when the police become adversarial to the population. They and we are less safe and less free when the police have no accountability. Respect and trust must be earned everyday. It is earned by performing honestly and without malice to any person or color. It is earned by performance.

These are our rights we must protect them. Government will always over reach and attempt to curtail them. So if you are sitting in a nice comfortable room, sipping on your favorite beverage and watching your favorite program, look over your shoulder on occasion and see just how close you are to your rights being overtaken. Remember the lesson of the Martin Niemoeller quote, who are they coming for that you haven’t spoken out? It is easy to say, it will never happen to me or I am not like those people. But–eventually you or your loved ones will be.

Our Constitution is a wondrous and precious thing but it is not a relic to be hung on some wall and admired from afar. It is a document which requires of us a commitment to its tenets and philosophy. It requires our performance.