The police have no one to answer to. That’s the problem.

To preface this piece, I am a public defender who wrote previously about plea bargaining as the main form of criminal “justice” in this country. If we go back in time from the court dates where lawyers like me encounter clients, we find police encounters that not only display an obscene imbalance of power but also a fundamental unfairness that runs afoul of common decency and constitutional law.

I am glad the media has shed light on police abuse. It needs immediate attention yesterday, the day before, and the decade before that. As with so many social problems, it’s too little, too late. American police and sheriff’s offices are disparate, largely unregulated agencies with powerful unions behind them to protect the “bad apples” we hear so much about.

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There are three major areas that contribute to the mess of police accountability that are ripe for meaningful reform. A quick word on body cameras: Because they can come under the umbrella of regulation and serve as evidence in court cases, and also because much is being written about them in the media, I won’t go into depth about their use here. Fortunately, it seems more police departments are taking the initiative to require them. The Los Angeles Times reports on a recent proposed crackdown by San Diego’s chief of police after an officer failed to turn on his camera before a fatal shooting.

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I sincerely hope that body cameras and continued citizen surveillance through our access to instant technology will lead to increased accountability, like it has in the murder of Walter Scott. But that’s a small piece of reforming a system of powerful and decentralized police forces that really isn’t much of a system at all. How did it end up this way? What can we do?

Federal and State Laws and Regulations

There are two possible forms we could go with here - an agency or system of agencies that would govern local police forces, setting educational standards and conduct, or the present system, which relies on weak civil remedies. The solution of regulation and oversight is a politically untenable one and therefore a theoretical pipe dream at best. As Sunil Dutta wrote in the The Washington Post in the wake of the Ferguson riots, police forces in America are part of a decentralized web without an overarching agency to enforce standards. (That’s how the NYPD has ended up as a virtual military organization, as reported by Salon back in 2012.)

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Oversight and investigation by the Department of Justice is politically unpopular - with the loud voices on the right and those they lead to believe that federal involvement in state or local affairs is always a bad thing. We saw in the mid-20th century, however, that the federal government must step in for civil rights, a wide-ranging topic for another day. Our newly minted attorney general seems to recognize the fact that the principle still stands, as Politico reports she will be investigating the police department responsible for the death of 25-year-old Freddie Gray.

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Because I’m writing from the perspective of a lawyer, not a policymaker (though of course there are those who serve as both), I will elaborate not on proposed oversight agencies, but rather the main civil remedy for police abuse, which lies in 42 U.S. Code Section 1983:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” [emphasis mine]

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Let’s break it down. “Under color of law” means that the abuse must take place by someone acting under the authority of a government. That includes police - when they’re acting on the orders of superiors or under departmental policy. “Deprivation of any rights...” includes, certainly, the right to life and liberty, which is what so many are losing in cases of police abuse and excessive violence. Those rights are protected by the due process clauses of the Fifth and Fourteenth Amendments, which Justice Rehnquist will dispose of in this arena a few paragraphs down.

The problem with Section 1983 is that the Supreme Court has all but removed its power. The first major blow came in 1985 with Tennessee v. Garner. At first blush, this seems like a decent setup for remedies for police brutality. Edward Garner, an unarmed black teenager, was running from police after purportedly committing a burglary. When Garner went to scale a fence, the police fatally shot him, despite the fact that they determined shortly beforehand he was most likely unarmed.

Justice White wrote for the majority that the police officer was not justified in using deadly force against an unarmed suspect. Great! Unless he hadn’t put this gem in the opinion: “A police officer may not seize an unarmed, nondangerous suspect by shooting him dead...however...Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.” (Emphasis mine.)

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Though Garner himself was considered to be nondangerous and his killing unjustified, White leaves here a big loophole that would neuter Section 1983 from that day forward. Sandra Day O’Connor comes in with a dissent that expands upon White’s loophole, stating that the “difficult, split-second decisions police officers must make in these circumstances” may lead to the use of deadly force in the case of a fleeing suspect. (While dissents are not rulings, the phrasing here echoes White’s vague and troubling loophole quoted above, and O’Connor’s reverence for police judgment reflects and predicts increased leniency in deadly force cases to follow.)

Only a few years later, Graham v. Connor screwed things up even further. Rehnquist wrote for a conservative majority that the use of force by law enforcement should only be analyzed under the Fourth Amendment, which deals with government searches and seizures (“seizures” here including the seizure of life itself), not the due process clause of the Fifth and Fourteenth Amendments, which gives us our right to a fair trial. That analysis essentially places in the hands of police officers the power to execute for crimes that do not carry the death penalty, including the alleged robbery committed by Michael Brown on the day of his death.

More troublingly, the majority opinion gave courts, and thus police, a vague non-rule for judging cases of excessive force after the fact: “Determining whether the force used to effect a particular seizure is “reasonable” under the Fourth Amendment requires a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake... Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it ...Because “[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application...its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” (Emphasis mine. And here’s a quick summary of Graham from trusty old Wikipedia.)

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So in short, Rehnquist and the rest of the majority instructed lower courts to evaluate claims of excessive force much the way O’Connor did when dissenting in Tennessee v. Garner. Actions under the Fourth Amendment, Rehnquist says, cannot be subject to “precise definition or mechanical application.” His subsequent ramblings about looking at “the facts and circumstances of each particular case” provide exactly the framework that police use today in justifying the use of deadly force where they thought, in that moment, that it might have been a good idea. “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” In other words, officers get the benefit of the doubt, and leeway to decide on what to do in the moment. To Rehnquist, it was too strict to look back and ask questions once all the facts had been collected.

These two cases wrecked 42 U. S. Code 1983 and laid the groundwork for cases like Scott v. Harris, where, as described by CBS News, a fleeing suspect was rammed by a police officer and paralyzed. If we disregard the question of whether Harris posed a threat to the public that justified the officer’s actions, it’s easy to see that the framework laid by Garner and Graham allow police wide discretion in the use of deadly force and blunt the threat of lawsuits in the face of questionable law enforcement action.

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Residency Requirements and Minority Recruitment Programs

I recently read Ghettoside, Jill Levoy’s study of South Los Angeles murder investigations. The book has its problems (namely purporting to cover the issue of black-on-black murder while featuring a white-savior cop investigating the murder of the son of a police officer, far from the average “ghettoside” murder victim for whom Levoy seems to want to raise awareness). What the book does right is point out that when police live in the communities they police, there is more understanding and fair treatment. I interned for a summer in New York City and saw a troubling dichotomy. The borough where I served clients was mostly minority and largely policed by white officers commuting in from suburbs and different neighborhoods.

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A prosecutor friend of mine outlined the problem she sees in her own workplace. There are two difficulties with attempting to mingle officers with the communities they police. Firstly, certain communities are simply too expensive for police to live in; on public sector salaries, they flock to suburbs, thus decreasing their familiarity with inner city areas where they patrol and investigate, instituting a separation that can lead to alienation and contempt. Secondly, there’s a certain awkwardness, even if homes were affordable, of running into people you’ve frisked or arrested at the grocery store. Trust me - I’ve run into clients in the wild, and it’s a funny feeling. I can only imagine how I would react if I hadn’t been on their side.

But two reporters at fivethirtyeight.com explored residency requirements, which they describe as “hugely unpopular among police officers”: Job requirements that police live in the communities they serve. Batya Ungar-Sargon and Andrew Flowers profile several cities with big dreams about police forces that reflect their communities. Rahm Emanuel, in particular, spoke in favor of keeping Chicago’s residency requirement intact: “They are more than police and fire...They are anchors in a neighborhood. They’re the Little League coaches, the hockey coaches, the volunteers at the place of worship. They are anchors — not just in their block, but in their community.” (The original Sun-Times article could not be located, but was also used as a source by The Huffington Post back in 2011 to reflect Mr. Emanuel’s stance on the issue.)

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The problem is that Ungar-Sargon and Flowers find residency requirements don’t increase diversity: “What we found was that police departments with a residency requirement had consistently higher dispersion scores than those without. In other words, these police forces were less demographically similar to their cities.”

So how do we introduce more diversity into the police force? Would it matter? The recent events in Baltimore prove a police force more reflective of the community won’t necessarily solve the problem. St. Louis, for its part, has stepped up minority recruiting. My own hometown, Atlanta, advertises police recruitment events on local radio; I like to think this direct appeal to radio listeners and citizens will bring out a more representative population.

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Can diversity solve the problem, though? It remains to be seen. As far back as 2010, NBC New York reported that white officers were outnumbered within NYPD. A police official proffers an optimistic quote in the article: “[The diversity] increases the capacity of the force to understand the problems of the black and Hispanic neighborhoods and respond to them with sensitivity and concern. And people in these communities will also be able to relate better to the need the NYPD has for cooperation in the neighborhoods of the city.”

That diversity, and the optimism, hasn’t led to a meaningful dismantling of New York’s Stop and Frisk program, ruled unconstitutional but still, according to Newsweek, wreaking havoc on minority populations after De Blasio promised reform. Neither did a more diverse police force prevent the shooting of Sean Bell or the tragic, unavenged, senseless death of Eric Garner in Staten Island.

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Education, Discipline, and Standards

You’ll see this quip from Sarah Silverman on the wall (or in the cubicle) of many a public defender. It’s not in the best taste - but like most good humor, it contains a grain of truth that shouldn’t be ignored when the consequences of that truth can turn out deadly.

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Higher standards for entry into the police force is one area where political support could actually come together. Keli Goff of The Daily Beast asked after the events in Ferguson if college education might lead to safer police forces. Before you go all Rick Santorum and call Goff a big snob, she doesn’t endorse the premise that a four-year college education is an essential requirement for success in America, nor a sign that someone with a degree is smarter than a counterpart who chose a different path. She does, however, cite a study by the excellent Police Chief magazine (which seeks to analyze and improve American policing) that showed college-educated officers have been shown to exhibit better judgment. Goff also highlights the biggest reason that those with higher education may not join the police force: pay.

“[P]olice departments have struggled to toughen up their educational requirements in part because recruiters are concerned that the relatively low pay offered by most entry-level law enforcement jobs would not be enough to attract college graduates. (According to the Bureau of Labor Statistics, the median salary of those on the police force nationwide is $56,980, but that number includes the highest paid detectives.) Of course this is another part of the problem. We want men and women in law enforcement who treat their jobs as police officers, as what they are: some of the most important jobs in our country that carry a great responsibility.” (Links from original article.)

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Ms. Silverman, let’s face it, is being a bit of a jerk to that police officer; of course, that’s part of the joke. But as Goff writes, police forces don’t, on a large scale, attract strong leaders with advanced degrees who feel they could make more money, gain more respect, and work in safer environments.

Too often I’ve accessed files of police in my cases only to see a myriad of reprimands that led to no demotions or real action. It took four - four - serious infractions for one deputy I encountered in a previous job to be demoted. You know where that jerk ended up? Monitoring a rehabilitation program for youth offenders - many of whom were minorities. Despite his humble assignment, he still wielded an enormous amount of influence over impressionable young people forming their first ideas of what the police were like.

That officer doesn’t deserve to continue in his job. I heard many complaints about his treatment of my clients and suspected use of racial slurs. He made jokes and remarks in front of me that troubled me deeply. Though I reported these remarks, my complaints were met with complacency and dismissiveness. But as SF Gate reported of the Oakland police department, the lack of real consequences results from the police being left to police themselves.

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Discipline isn’t the only problem. In an interview, a professor from John Jay College of Criminal Justice told The Prospect about the low standards in police training.

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Tamir Rice’s killing in Cleveland, as The Week and many other outlets reported, was carried out by an officer who was found psychologically unfit to handle firearms by a previous employer. This didn’t lead to a firing; it led to a resignation, the usual way police officers are disposed of - and eventually rehired, since they don’t have official dismissals on their records. Even with this report from a superior, the officer in question was able to resume police duties under a different chief: “[Officer Loehmann] resigned in December 2012, four days after receiving a letter from Deputy Chief Jim Polak saying that he did ‘not believe time, nor training, will be able to change or correct’ his “deficiencies.’”

An even more egregious example came earlier this year when a 73-year-old playing sheriff’s deputy shot and killed a man in Tulsa, Oklahoma. As reported by USA Today, the “deputy” in question, Robert Bates, simply wasn’t qualified to be on patrol with a deadly weapon. It should have been predicted by those aware of the situation that a tragedy like the death of Eric Harris was a likely outcome. In recent days we have heard about evidence that those in charge covered up Bates’s woefully insufficient training.

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Why are we strapping weapons on men and women who aren’t up to the task? Why are we imbuing them with the power to act as executioners? Why aren’t they held to account with any consistency? It’s part of a larger problem of fragmentation in the way our country is run. We see it in the refusal of governors to enact healthcare exchanges; we see it in the disparate quality in public education from state to state; and we see it as bridges collapse where public works projects are deeply unpopular. None of these things are acceptable. The fact that public servants are ending people’s lives because we can’t get it together to properly train, regulate, and fund them is abhorrent and inhumane.

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For a true academic exploration of this topic, check out “The Problem of Policing” by Professor Rachel Harmon, a former federal prosecutor with the Department of Justice who now teaches at the University of Virginia School of Law.


This article was previously published under the handle Elle Woods & Associates by the same author. Twitter: @luluthelawyer