Police Malpractice

Police Malpractice - Rep. Ro Khanna (D-Ca,) wants to change the federal legal standard on the police use of force from "reasonable" to "necessary." Rep. Ayanna Pressley (D- Mass.) and Rep. Ilhan Omar (D-Minn.) introduced legislation to directly condemn police brutality, racial profiling and the excessive use of force. I will give my own context to the issues raised.

The practice of police officers not informing about, nor trying to stop officers from using excessive force, or committing illegal actions, goes by several names, but the one most commonly used is probably "Blue Shield." It isn't only that other police officers just stand silently by in many instances, but they join in the use of excessive force, or other illegal acts. A few examples are: 1.) The Rodney King beating in Los Angeles, which involved not only the Los Angeles police, but campus police and sheriff's deputies; 2.) The assault on a horseback rider in Orange County, California, when a hovering helicopter showed seven sheriff's deputies joining in the beating of the unhorsed rider. A homeowner had called to report that the horseman had ridden through her property; and 3.) Eric Garner was choked to death, while other New York City police officers restrained him.

James Boyd, a homeless man, became a national sensation when he refused an order to leave his position in the foothills of the Sandia Mountains near Albuquerque, New Mexico. He was seen as a menace by some foothills residents, and a large police force was in a standoff with him. The standoff was broken when two officers almost simultaneously fired their weapons. Because there were TV cameras there to catch the action, Boyd was shown shot while reaching for his backpack. It looked to me that he was preparing to leave. At no point in the televised coverage did Boyd hold anything that would represent a threat to any officer.

Based on trial testimony I heard and what I read about the trial, the police officers who gave testimony didn't find anything that the two officers on trial did wrong. Both officers were found to be not guilty. When police officers testify in trials of their fellow officers, in law enforcement circles, the word is not "testimony," it is called "testilying," because so many officers lie.

There are, of course, other ways to assess official law enforcement practices that make it more difficult to to rein in conduct that is at least questionable, or crosses the line into bad territory. When Jeff Sessions became Attorney General he discontinued the use of consent decrees. Consent decrees are one way to reduce destructive practices in law enforcement agencies. The Albuquerque Police Department was under a consent decree due to questionable fatal shootings.

Sessions also restored asset forfeiture, whereby police departments could keep some of the proceeds from stopping a vehicle that was found to be carrying illicit drugs. At a symposium in New Mexico, a few years ago, a lawyer described the practice of one police department, in which officers discussed stopping the most expensive cars, because that would increase the income to the department. This narrative seemed to have had a powerful impact on New Mexico legislators, as they eliminated the state's asset forfeiture program by virtually all legislators in both the state House and Senate voting to  kill it.

When Frank Serpico testified before the Knapp Commission about corruption in the New York City police force, the operative phrase that came out of that proceeding was not that there were "a few bad apples" in the drug enforcement division, but that "the whole apple basket was rotten."

Although I have been a life-long supporter of unions, many union contracts give police officers advantages in the judicial process that the ordinary citizen doesn't have. One of the most egregious is that officers have the right to see the charges that will be levied against them before the legal process has begun. Another provision that many union contracts have is that police officers have access to grand jury proceedings that the ordinary citizen doesn't have. When it comes to the judicial process, the police officer should basically have the same rights as the ordinary non-police citizen.

One of the most daunting obstacles reformers will have in scaling back law enforcement misconduct, is the propensity of those on jury panels to fail to convict police officers being tried for a criminal offense. One study of 10,000 cases in which officers were charged for a violation of law, only 55 were convicted. Only a handful suffered a sentence longer than 7 years. Between 2013 and 2019, 99% of police killings were not charged.

Finally, given that prosecutors are too often closely tied to local police departments to make objective decisions, "Blue" commissions headed by a prosecutor experienced in trying capital cases, and regionally located, should try fatal police shootings.