Concrete steps to fix the problem of police brutality in America

The murders of George Floyd, Breonna Taylor, Atatiana Jefferson, Botham Jean, Elijah McClain, and so many others at the hands of the police have sparked a civil rights movement in the US and around the world. In particular, watching a police officer crush the life out of George Floyd was just too much for the consciences of many decent people. Hearing George Floyd call out for his mother as his life was being extinguished was something that touched the hearts of so many. In response, tens of millions of people in big cities and rural towns have come together to denounce the brutality and racism that pervades policing in the United States.

The road that brought us to this moment in history is a long one that I won’t try to fully recount in this brief article, as that would take years to write and months to read. However, I will try to provide a brief overview of the racism and brutality that is currently plaguing policing, before moving on to what I believe can be done to fix the situation.

We have a real problem with policing in our country

There is a serious problem with policing in our country. American police officers use force – including deadly force – in many situations where it is entirely unwarranted. Racism is sadly alive and well in policing too.  A comparison of the militarization and violence of American police forces to those in other similar countries is breathtaking and reveals a problem that many other developed nations just don’t have.

As a Black man, I have been racially profiled and wrongfully detained by numerous police departments throughout my life. My first memory of the police involves my parents being falsely accused of shoplifting and being mistreated by a police officer.  I will never forget the way that that officer spoke down to them, forced them to return to the store, and treated them as though they were less than human.  As an attorney, I have represented people who were the victims of police brutality and other police misconduct, with many of those situations clearly driven by racism on the part of the police officers. I have represented clients where the video evidence showed the police officer fabricated charges. Indeed, I have seen judges sternly rebuke police officers for their wrongful actions, only to later see that police officer remain employed and ready to victimize others. Perhaps most frustrating, I can think of multiple clients who were abused by the police yet chose not to sue because they were genuinely afraid of retaliation.

Leaving aside my personal and professional anecdotal experience, the statistics confirm the existence of racial bias in our justice system. The United States Sentencing Commission, which is an independent agency within the judicial branch of our federal government, routinely publishes reports on demographic differences in sentencing. The most recent report found that “Black male offenders continued to receive longer sentences than similarly situated White male offenders. Black male offenders received sentences on average 19.1 percent longer than similarly situated White male offenders during the Post-Report period (fiscal years 2012-2016), as they had for the prior four periods studied. The differences in sentence length remained relatively unchanged.” So, even adjusting for other factors, being Black means more police scrutiny, more violence being applied by the police during arrests, harsher charges from the prosecutors, and longer sentences from the judges for the same conduct as a White person.  These federal court findings mirror what we see in state court, with many states having an even greater racial disparity – even when we account for things like criminal history such that race is all that is left to explain that disparity.

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Indeed, former US Marshall and DEA Special Agent Dr. Matthew Fogg spoke in 2015 about how drug investigations and arrests specifically target poorer minority communities, and how the DEA agents were expressly told not to do drug enforcement in more affluent and primarily-White communities.  A majority of the no-knock warrants that have led to deaths of innocent people such as Breonna Taylor occur in less affluent areas with more Black residents.  As another data point, the ACLU did an analysis this year and found that despite the fact that Black people and White people use marijuana at roughly the same rates, Black people are nearly 4 times as likely to be arrested for using marijuana.  Studies also show that Black people are about 3 times as likely to be killed by the police as White people.  I could go on and on, but presence of a racial bias in policing should be clear by now.

How to fix our policing problem

Fixing the problems in policing may seem daunting, but significant improvement can be made with a few relatively minor actions.  Doing so will help protect both the community and the police officers, as reducing violence and unnecessary police-citizen interactions is in everyone’s best interests.

Ending Qualified Immunity is perhaps the biggest single improvement that can be made to fix policing in America.  Qualified Immunity is the legal doctrine that makes it impossible for many people who have been abused by the police to obtain justice in court.  In a nutshell, Qualified Immunity is a legal rule that prevents a police officer from being liable unless the person who is suing can show that a clearly established right was being violated by the police officer.  While that may sound reasonable at first, it it is anything but reasonable and makes justice unattainable for many victims.  For example, Qualified Immunity has prevented law enforcement officers from being liable for rape when there is not a “clearly established” right not to be raped while in custody expressed in the caselaw of that court when the lawsuit is filed.  Qualified Immunity also allowed two police officers to steal $225,000 because it was not “clearly established” in caselaw that stealing from someone when executing a search warrant was a violation of that victim’s rights. The list goes on and on, but the point is clear: Qualified Immunity acts as free pass for law enforcement to act with impunity in many cases.  Abolishing this misguided legal doctrine will allow our legal system to hold the police officers who engage in misconduct accountable.

A close second in the list of ways to fix policing is something that we can all do, using our cell phones: record the police.  It was 17 year old who recorded the video of George Floyd being murdered, and in doing so that brave young person exposed a killing that would likely have otherwise been swept under the rug.  If we all take the time to record the police – whether they are stopping us in traffic or arresting a total stranger, we will help fix the problems in policing.  Just having cameras present may prevent many instances of police brutality.  Even when police brutality is not prevented by the presence of a camera (as in the case of George Floyd), having a recording of what happened will at least allow justice to be served.  Speaking again as an attorney, I have had cases where my client’s innocence was proven through bystander videos.  I have also had cases where the police department dishonestly tried to hide squad car video and other evidence, and that sort of police misconduct makes the video recorded by random members of the public all the more important.

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Requiring squad car video and body cameras for all police officers will help for the same reason that the video of bystanders will help, and requiring the police to carry the video cameras will go a long way to ensure justice even in cases where there are no bystanders.  It will also serve as a deterrent against police brutality. I can think of multiple cases that I have handled where the squad car or body camera video recorded by the police showed that the police officer had falsely accused my client. There have also been cases of police planting drugs on people that were captured on the police officer’s own body camera, saving innocent people from prison sentences. Requiring that the body cameras be turned on during interactions with the public, and having penalties for police officers who turn off or cover cameras, should be part of the solution.

Expressly imposing a legal duty on police officers to intervene and report when they see a fellow police officer engaged in misconduct is something that is sorely needed.  Using the case of George Floyd as an example, one police officer choked the life out of Mr. Floyd while two others held him down, with the final police officer standing nearby. None of those other officers intervened, and that fact pattern has played out time and time again. Indeed, given that police officers take an oath to uphold the law, it is sad that there is even a need to address this point.

Protecting police officers who report misconduct is also key.  There have been many cases in which police officers blow the whistle on their corrupt fellow officers, only to be fired in retaliation.  Whether it is the story of former New York police officer Frank Serpico from the 1960’s or the dozens of modern examples, it is clear that police officers who speak up often find themselves without a job or pension, and sometimes even find their lives in danger.  One particularly relevant example is that of former Buffalo police officer Cariol Horne, who was fired and lost her pension after she physically intervened to stop another police officer from punching and choking a handcuffed suspect in 2006. Protecting these officers, who have the courage to stand up for what is right, should be a priority.

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Finally, we should reduce reliance upon the police for mental health, motorist assistance, and other such matters.  It is common practice for the police to handle many odds-and-ends jobs in the community that would be better given to mental health professionals, the highway department, etc.  Unfortunately, the police are poorly equipped to do these many other tasks, and their involvement produces unnecessary police-citizen interactions.  In many states, a person needs more hours of training to braid or cut hair than they need to become a police officer, yet those police officers are sent into many situations they are unqualified to handle.  This contrasts sharply with many other developed countries that require much greater education and on-the-job training for police officers.  Tragedy often ensues when that police officer falls back on their existing training in the use of their firearm or baton. To be sure, the police can be available to provide law enforcement when it is needed, but keeping them on the sidelines whenever possible will reduce situations where force is needlessly applied.

As previously mentioned, recording the police is something that requires no action on the part of the government.  We are all able to use our cell phones to record the interactions with the police that we observe as we go about our lives, and I encourage everyone to start doing so right away. Bringing about the other changes discussed above will require political action. Our state and federal legislatures will need to pass laws.  State Governors and the President will need to sign those laws.  In order to make those things happen, citizens will need to write to their elected officials, participate in peaceful protests, and vote.  Spending just a few minutes to do so can be the difference between making a better world for our children and ourselves, or maintaining the status quo of police brutality and racism. The choice is ours.

Protesting is working, so let’s keep at it

Although there is still so much to be done, real progress has been made in the last few weeks. The police officers responsible for George Floyd’s murder have been charged. Other murders committed by the police are receiving new scrutiny from prosecutors at the local, state, and federal levels. Several states (including Iowa) have passed laws that begin to address brutality and other misconduct on the part of police officers. The state of Colorado went the furthest, abolishing Qualified Immunity. Those changes are testaments to the power of protesting, and a reminder that speaking up works.

In closing, I would like to invite everyone to join me for a peaceful protest at the Davenport Police Department on July 11, 2020, at 4:00PM. At this peaceful event, we will oppose racism and police brutality. More information, and a link to the Facebook event page, can be seen at https://www.learnaboutguns.com/2020/06/26/protest-against-police-brutality-and-racism-in-davenport-iowa-on-july-11-2020-at-400pm/