Terry v. Ohio Deserves History’s Dustbin

April 14, 2015

Madison, Wisconsin; Ferguson, Missouri, Staten Island, New York; the list is endless and growing. And the tears keep flowing. Mostly young Black men deprived of their lives without benefit of any opportunity to defend themselves. They can’t defend themselves physically because that will be treated as a threat on the officers’ lives. They never get a chance to hire an attorney and defend themselves in court. It’s all over before it starts. More lives gone. More families grieving. That, apparently, has become American “justice.”

The Constitution says that we have the right to be free of “unreasonable searches and seizures … and no Warrants shall issue but upon probable cause ….” Probable cause became the standard for the constitutionality of an arrest or seizure of property. In 1968 the Warren Court decided a case known as Terry v. Ohio.[1] In that decision, the Warren Court said that the police do not have to have probable cause to stop and frisk someone. They said “reasonable suspicion” was enough. Although the Warren Court laid the foundations for a much more just society, making clear that segregation by race is “inherently unequal” and unconstitutional, mandating one person one vote and insisting on the enforcement of most of the Bill of Rights, Terry v. Ohio begat the reenactment of the racist patrols that kept the Blacks down on the farm throughout the post-Civil War segregated South, now expanded throughout the nation.

Terry v. Ohio is the source of the irritation of our Black fellow citizens by constant interruptions in their daily business, constant demands that they submit to searches, constant expressions not of cordial greetings from the police but constant demands that our Black fellow Americans obey and respect “the man.”

Terry v. Ohio is a source of many of the interactions between minorities and police that have gone disastrously wrong. It ramps up every exchange. There’s no “Hi, how are you?” It’s “turn around with your hands up” and from that moment everyone is on edge –minority individuals because they are out of control and don’t know what is going to happen to them, the cops because they are now ordering people around and expecting the worst. Indeed, when someone is ordered to put their hands up, any motion that doesn’t look right to the officer now looks dangerous. Everything ramps up. Adding insult to injury, we have statistics – nine-five percent of those stops are useless nonsense.

We would have less crime without Terry v. Ohio. There would be less anger without Terry v. Ohio. African-Americans would be less convinced that the world is determined to keep them down without the irritants enforced under Terry v. Ohio. We would be safer without Terry v. Ohio.

Indeed we were safer before Terry v. Ohio. In the world I grew up in, racial minorities were not a significant source of street crime. The world that so many of us, Black and white for different reasons, have learned to fear, is a post-Terry v. Ohio world.

There’s something else I’d do – I’d give the police a choice – no guns without full civilian accountability, fully empowered civilian review boards with the power to investigate, subpoena and see all documents and interview all witnesses without restrictions, without privileges, contractual barriers or anything else that prevents a full and impartial investigation. And I’d insist that cops turn on their cameras before they stop, seize, arrest or otherwise prevent us from doing our business without restraint.

— This commentary was broadcast on WAMC Northeast Report, April 14, 2015.

[1] 392 U.S. 1 (1968).


NYPD – What Now?

January 29, 2015

Two weeks ago I described my concerns about the New York City Police Department. It’s actually a much bigger problem – police all over the country have been using their power and their guns instead of their heads. Many people in our communities have been paying the price for years. Big problem, all over the place, persistent, rooted in the system, so are we stuck with it?

So let me offer some suggestions.

First, police brass can act. They can look at the records to see which policemen frequently charge people with the kind of minor crimes police use to cover up their own abusive behavior – charges like resisting arrest.[1] The brass could demand that police make good relations with people on the street a priority. Unfortunately, however, that won’t work without buy-in by a large portion of the department. Otherwise it will disappear – resisted, pushed out, forgotten.

By comparison, Vietnam taught the generals the importance of race relations – you can’t have a multi-racial military with an internal race war. Soldiers who’d be happier if the next guy in the foxhole took it for Old Glory are not “with the program.” That’s an internal problem rather than community relations but it’s instructive. The military didn’t get all ideological about how to do it and they didn’t run up the old race pride. They just asked what works.

So they made race relations a part of the responsibility of every officer. You want a promotion? You’re going to have to see to it that all the soldiers in your unit work together, that all the talent gets recognized, and promoted, regardless of color. And they got buy-in because people throughout the military understood the need.

Often when I run into people in the service I ask them about it. Blacks tell me life is much more civilized in military than in civilian life. They know that their accomplishments will be respected, that it’s worth their effort and cooperation.

For the police, responsibility would have to include relations with the communities served, and all the people in them. Imagine police having to think about community relations when they decide to stop and frisk someone because he’s Black or isn’t dressed nice, or before they pull a gun on or kill someone who is unarmed.

Unfortunately, I’m not confident we could get buy-in for such a good top to bottom renovation of the Force. Let me offer a wake-up call. New York City created community school boards, decentralizing the school system, a few years back. They put the communities in charge of the schools. That had problems but it had one big advantage – it broke up pre-existing power centers. It meant that people had to pay attention to the community. Imagine if the police had to make nice to the communities they serve. That’s an interesting suggestion, isn’t it? And the responses would highlight the problems. First the prejudices would show – “they,” meaning minority communities of course, can’t handle that. Some officers would have to bury those attitudes. That alone might do a lot of good. And police would respond that their perks are at stake. Well that is the problem – one of their perks has been the ability to abuse people without consequences.

Whatever you do in your community, apologies don’t solve the problem – get police attention with a significant proposal that puts the community in charge and let the police try to fight that with guns ablaze!

— This commentary was broadcast on WAMC Northeast Report, January 27, 2015.

[1] See “NYPD Disciplinary Problems Linked To A ‘Failure Of Accountability’” with Robert Lewis and guests Darvel Elliot, Samuel Walker, Candace McCoy, Richard Emery and William Bratton, on Morning Edition, January 16, 2015, 10:00 AM EST (National Public Radio).


Police Accountability

January 6, 2015

I’ve been reading a case decided in the European Court of Human Rights. It involved opposing libel suits arising out of claims of police brutality in Bergen, Norway.[1] The opinion of four judges, whose names I will not try to pronounce, struck me. The judges pointed out that the purpose of the libel suits brought by the police officers “was to suppress the debate on this issue….” But they pointed out that the government has “a monopoly over force” and that monopoly “also entails the danger of force being abused to the detriment of the very values it is meant to uphold.” Therefore “abuse of force by officials is not just one of many issues of broad general interest.” Instead, “it is … a matter of primary concern in any society.” Keeping authorities in check is particularly important for a democracy. And the ability to hold the states’ use of force in check requires protecting those who raise the alarm.

The European Commission for Democracy Through Law observed that “In numerous states … [there is a] general ban on the creation of para‑military formations.”[2] That’s because they are armed and dangerous.

So the judges in the Bergen case emphasized the “vital need for every society to exercise strict supervision over all use of force in the name of society.” Critics of official abuse need to be protected. The 1984 United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment specifically protects the right to complain.

But not about the New York City police.

It’s time we learn that there are wonderful police, and there are terrible police. But the culture of silence by which they protect each other against any and all criticism makes the wonderful police into allies of the terrible police. They’re unaccountable to each other and they’re unaccountable to the rest of us.

You and I can’t go walk down the street saying that guy down there could be armed, so if he puts his hands in his pocket I’m going to kill him. That’s not self-defense; that’s murder. But the police, who have sworn to defend us, insist they have that right to kill on the mere possibility that someone could be armed with evil intent. They insist they do not even have to account for it or defend themselves – it is disloyalty even to criticize or call for an investigation as Mayor de Blasio has done.

What the police are doing is showing that they are a special interest, not public servants. Everyone else is accountable, from the President down to the janitor, everyone is subject to investigation and criticism, everyone’s methods are open for revision. Heads of government departments and heads of corporations are accountability to us, to the public. But not the guys that claim the right to kill us. That has a clear meaning for me – I don’t trust them. They have a code of silence and self-protection and they just dare us even to question them. That means they should not be trusted. Just one more special interest trying to bilk the public. New York City’s Police have LOST my respect.

Soldiers in the military, regardless of politics, do not turn their backs on the Commander-in-Chief. That’s unacceptable. But it’s typical of the NYPD – they’re spoiled, dangerous and out of control.

— This commentary was broadcast on WAMC Northeast Report, January 6, 2015.

[1] Opinion of Judges Kūris, Türmen, Strážnická and Greve, dissenting in Nilsen and Johnsen v. Norway, [1999] ECHR 23118/93[GC] (25 NOVEMBER 1999).

[2] Explanatory Report, incorporated as part III of Guidelines On Prohibition And Dissolution Of Political Parties, note 361 above, at ¶11, available at http://www.venice.coe.int/docs/2000/CDL-INF(2000)001-e.pdf.


Killing Garner

December 9, 2014

Are we safer with or without the police around? When juries, grand juries and prosecutors regularly decide that plain, on camera, evidence doesn’t show murder, what protects people?

It’s too dangerous to put your key in your front door like Amadou Diallo a few years ago. It took 41 bullets to meet that threat and shoot him in the back. It’s too dangerous to hold your hands up like Michael Brown in Ferguson – hands up can be interpreted as threatening. It’s too darn dangerous to complain “I can’t breathe” like Eric Garner – we know from sexual politics that people understand “I can’t” to mean “I can!” On camera they could see just how dangerous a man can be when he can’t breathe. And any Black kid with a toy gun is toast.

The police talk about bad officers. Most are not looking for a chance to show just how tough they can be toward inoffensive or defenseless people. But don’t let the so-called good cops off easily when there are no repercussions, when the “good cops” stand with the “bad cops” because it’s a dangerous job, so that there are no enforceable rules of behavior toward civilians and anything the police do goes but nothing civilians do – especially if they’re African-American. The culture of silence gives us no reason for confidence. No firings, no powers for civilian review boards, plus judges and prosecutors who stand by the cops regardless, like the judge who told me he believed my client but found him guilty because “I couldn’t do that to the police.” Are those who stand-up-for-the-cops-no-matter-what any better than the Romans who liked to watch Christians thrown to lions?

Black families have “the conversation” with their kids about how to deal with the police. Actually I’m also better off when I don’t argue with the police, don’t claim to know my rights. Most of my clients were Black. I gave them the same advice plus keep quiet and politely ask for an attorney.

Apologists for the police have used the conversation to say it was Eric Garner’s and Michael Brown’s fault that they were killed. They should have done what they were told. Then they wouldn’t be dead. But so what? I teach my law students that they should not expect their clients to know what to do and what they need to tell their lawyers. The lawyers are the professionals. The lawyers are trained. The lawyers must expect themselves to shape the encounter usefully and help the clients do what needs to be done.

It is a lot too simple and too self-satisfying to blame the victim. The Americans ISIS beheaded shouldn’t have been there if they knew what was good for them but that gave ISIS no excuse to behead them. Some women might not have been raped if they made themselves look ugly but that’s no excuse to rape them. I took part in a rape case where a young man was charged with raping an older, shriveled charwoman – not looking pretty doesn’t necessarily protect women. But no matter, none of them, pretty or ugly, young or old, should have been raped. It doesn’t help to blame the victim. Blaming Brown and Garner and Diallo and the 12 year old kid doesn’t make a lot of sense to me – none of them did anything that justified execution. Do we have to take the guns out of their hands to convince the police to use their heads?

—  This commentary was broadcast on WAMC Northeast Report, December 9, 2014.

References

On Eric Garnder’s death, http://www.nytimes.com/2014/12/04/nyregion/officer-told-grand-jury-he-meant-no-harm-to-eric-garner.html?action=click&contentCollection=U.S.&region=Footer&module=MoreInSection&pgtype=article


Reactions to Obama and African-Americans

October 21, 2014

Several people recently hopped the White House fence and were caught with weapons. Many treat Obama as if he can’t do anything right. Some insist they want him to lead while making it impossible to do that. From the beginning of Obama’s presidency, Republicans in Congress focused on bringing Obama down by blocking everything he did regardless of the merits. That’s unique in our recent history. He’s even been criticized for taking a vacation – though Obama has spent far less time on vacation than his predecessors – plural – and was obviously doing the job of governing even while taking some time with his family. What’s going on?

Minorities have long understood that to get any credit they have to be much better than anyone else – if in fact their success isn’t used against them. Read the rest of this entry »


The New Jim Crow

July 16, 2013

While coming to record last week’s commentary, I was listening to Michelle Alexander on Alternative Radio. If you haven’t heard her or read her book, The New Jim Crow, I strongly recommend it. Some of us knew the basic facts but she fills in the details and makes the argument brilliantly.

I want to elaborate something implicit in her talk but not fully expressed – what she described is why civil liberties matter, one of the major reasons the ACLU was formed, and why Alexander was an attorney for the ACLU of Northern California. Read the rest of this entry »


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