When the Law is Part of the Problem

Whether it be by legislative intent, or due to some interpretation of the law by a judge or by the supreme court; behind each incidence of police brutality, shooting of an unarmed person, or other unwarranted police behavior in America, lies the question of how is it the law of the land allows law enforcement officers to act with relative impunity? Of course, there is the question of whether the law does indeed allow law enforcement officers to use unnecessary, excessive force? While there can be no doubt that they should be be allowed to use necessary force; does it not follow that any force beyond what is necessary is unnecessary force? And, that anything beyond necessary is excessive? Should a routine traffic stop warrant a police officer pointing a loaded weapon at the traffic violator? It does seem that the limits for the force used by law enforcement, should be matters of the law. There are, after all, strict restrictions on things like wire tapping and other means of surveillance.

Given our nation’s history of abusive policing: the fugitive slave laws, the notoriously cruel early Texas Rangers, Wyatt Earp, et al, one might have expected the court to have acted to curb abuses by law enforcement. But, this isn’t what has happened. Why not?

Today, seems almost daily, from videos taken with smart phones and those from police body cameras, we see the police draw their weapons on an unarmed person during routine traffic stops, force someone of us to lie face down on the ground on an alleged suspicion of wrong doing, or otherwise use excessive force. (Smart phone and body camera videos have been great forces for change. Today, and henceforth, a video record should be de rigueur for any and all stops and arrests by law enforcement.) Too, too often, in one of these videos, we see police shoot an unarmed person. Is it that it isn’t so much that the law says that they can do these things as it is that the law doesn’t say they can’t? That the law may not have been intended to permit such behavior, but, de facto, it does? Surely, it must be one of our inalienable rights to not be unnecessarily or excessively abused by the police.

We have, of late, seen several cases where civil courts have awarded huge damage settlements in cases of police abuse. These are rulings against the municipality (the deep pockets) that employed the abusive law enforcement officer(s) (i.e., the ultimate responsibility for the actions of its police officers lies with the municipality that employed them). Rulings that, in effect, transferred the liability from the officer(s) who committed the abuse and the city officials who employed the officer(s) to the tax payer. Even indirectly, tort can be an effective force for change.

Most recently, a criminal court in Minneapolis, Minnesota convicted former police officer Derek Chauvin of murder and manslaughter for his role in the death of George Floyd. Not so very long ago, such a conviction, even the bringing of a police officer to criminal trial, would have been so rare as to be almost unimaginable.

For law enforcement to charge one of their own with a crime is huge step forward; amounting to a tacit acknowledgment that there is a problem. From no man is above the law, surely it follows that no man is immune the law. It is in this area of immunity for law enforcement that the weight of decisions by the U S Supreme Court has played a tangential, but significant role.

Of late, we hear the term qualified immunity used in reference to some purported police immunity. The term comes from a series of Supreme Court rulings (briefly summarized below) wherein the Court accords the police ‘not unqualified immunity’ from civil prosecution; the now much used term ‘qualified immunity’ seems to have come from the unknotting of the court’s use of the double negative.

Bradley v. Fisher (1872) the court established that judges were immune from liability.

Pierson v. Ray (1967), the court, springing off Bradley, went on to state that although police officers are not granted absolute and unqualified immunity from liability for damages, they may be excused “from liability for acting under a statute that he reasonably believed to be valid but that was later held unconstitutional, on its face or as applied”, “… similar to the principle that a police officer “… who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved.” The court did allow that the police could be tried in criminal court.

Harlow v. Fitzgerald (1982), the Supreme Court handed down the current rule for qualified immunity. In effect, the standard became: “does not violate clearly established statutory or constitutional rights* of which a reasonable person would have known.” Immunity was no longer dependent on an officers subjective state of mind, but rather on whether or not a reasonable person in the officer’s position would have known. Note the diminishment of responsibility.

Saucier v. Katz (2001), the Supreme Court ruled that a military police officer who had roughly thrown Plaintiff Katz face down into a van had qualified immunity. In ruling, the Court formalized this rigid order, or sequencing, in which courts must decide the merits of a defendant’s qualified immunity defense. First, the court determines whether the complaint states a constitutional violation*. If so, the next sequential step is to determine whether the right at issue was clearly established at the time of the official’s conduct.

Pearson v. Callahan (2009), the Court allowed judges to skip the question** of whether or not a police officer used excessive force*** and to focus solely on whether or not the conduct violated clearly established law, which appeal courts have frequently done.

*Note the imposition of the standard of whether or not police had violated someone’s constitutional rights. Rather than the Constitution granting us our rights, it should protect our inalienable rights.

**Note the court’s allowing judges to skip over the question of whether or not an officer used excessive force.

*** Shouldn’t the use of excessive force by law enforcement itself be a crime? Shouldn’t there be published widely agreed upon standards?

Note that the court has not accorded immunity to law enforcement in re criminal prosecution.

Damages in civil suits are meant to make the plaintiff whole. Conviction and sentencing in criminal court serves as punishment. The two, making whole and punishing, are not the same; not even close.

Does public opinion abet the police abuses we are seeing? It is known that calls for law and order play well with much of the America public; especially with right wing Americans who generally are proponents of punishment as a deterrent. The phrase itself implies using the law to maintain order. For those who subscribe, law and order even take precedence over the constitutional right of peaceful protest. For them, it is just as important for the police to maintain order as it is for them to enforce the laws. As we have seen, time and time again, some police, some police departments, are all too willing to use excessive force in order to impose order. Up to a point, any abuse of rights in this imposition of order has been forgiven by the proponents of law and order.

The TV coverage of the dogs, fire hoses, and beatings in Montgomery, … , the recorded suffocation of George Floyd, … , went too far for even some of the law and order crowd. Law and order has long had racial undertones. As we have seen, especially in 2017, 2020 and early 2021, the police in some cities are much more likely to use excessive force on protesters of color than they are on white protesters.

What role, if any, do our two major political parties play in our nation’s toleration of abuse by law enforcement? As mentioned, law and order advocates tend to be more right-wing in their politics. Right-wing politicians such as Senator McConnell have had a significant role in the packing of today’s federal bench with advocate judges/justices such as the six conservative members of the current supreme court. Before today’s supreme court, others, those more advocates than Justices, such as Antonin Scalia, played a major role in shaping the court’s decisions in re police use of force. When Mitch McConnell speaks of the courts representing a conservative majority, he does not mean justices and judges whose views are representative of a majority of Americans, but rather those whose views represent those of conservative white Americans; especially Christian, conservative, southern, white Americans. But, then, there are times when even liberal democratic politicians can find it difficult to ignore a public outcry for law and order. So, while much of the advanced world has moved ahead on police reform, America remains stuck with draconian southern/red state laws and attitudes toward law enforcement.

What role do police unions play in reform? There are American cities where the police union is more powerful than the elected officials; where the police union has more say over the management of the police department than the police chief; where the police union may seem to even have de facto say on whether or not a chief is hired, or fired.

Closely associated: The symbiotic relationship between prosecutors and police departments is all too apparent; each of them needs the other in order to do their job. In a jury room, one soon learns that some jury members are more inclined to believe the police than they are to believe someone accusing the police of using excessive force. At times, it even might seem that judges may be more inclined to believe the police.

—In summary—

It wasn’t so long ago that, if stopped for a traffic violation, you might be asked to show your drivers license, vehicle registration, and proof of insurance; might even be asked to step out of your car. This is still the case in most cities, most states. Why is that some states, some cities, use more aggressive police tactics? We see evidence that police procedure sometimes varies with the color of the drivers/occupants skin. Is this justifiable? Wouldn’t better, more specific, laws involving the interaction of police with a suspect give the police better guidance? Why isn’t the public better informed of their responsibilities when stopped or apprehended?

Even if the license check comes back showing a car’s owner has a criminal record, or is wanted, couldn’t the police first politely ask the driver and occupants to step out of the car with their hands raised. Many people respond better to being politely asked than they do to aggressive action. Does police aggression beget aggression? The police already have a great deal of power and authority, there is a lot they can do before pointing a gun at someone of us, demanding that someone of us lie face down on the ground, the sidewalk, the pavement; things almost certain to stir animosity.

Who should prosecute an agent of law enforcement for criminal abuse of power? Given their inherent relationship with prosecutors, it needs to be someone from outside the justice department. Should each county and state have a special prosecutor for cases involving police misconduct? Could this person be selected from a pool of currently serving judges? How about having a panel of judges appoint a special prosecutor? Should such a prosecutor be elected to office? Other than in large cities, it would probably be a less than full-time job.

In general, giving unions a role in management is not a good idea. In the case of police unions, it is a very bad idea. A city’s charter should be very specific about the role of the police union(s); about limitations thereon. A role that should not be expandable by contract negotiations. Union leadership is a profession, so is management. The two are not the same. Union leadership should never be allowed to run the railroad.

It seems that without guidelines, police have been able to make up their own rules. This could better fall to people of the city, county or state; but, it would be far better yet if there was a national standard for police use of force; a federal law.

How much authority should be accorded law enforcement? Enough for them to do their job; yet no more than the law allows.