The Code of Silence and the Stereotype of Bravery

March 8, 2016

It’s hard to explain to most people how serious the problems with the police are. Ideology makes people choose sides and blink reality. Urging change is treated by police as pure hostility. There are many good policemen doing everything they can to protect all of us. Equally clearly there are policemen who are there for the power trip from the uniform or from their weapons.

But their solidarity and their code of silence make it a much more serious problem, making all criticism out of bounds and protecting policemen who commit serious crimes or abuses.

Sometimes victim’s families win civil suits but the city pays, which means you and me pay, while the officers will be indemnified. That’s not nearly good enough.

Some police were so brave that they were terrified by a man reaching for his front door key and pulverized him with 41 shots. So brave that a Black man in a winter coat, walking like he had a bad knee, a limp or a package – suggests a gun to them and the encounter ends with his death. Or they decide to take what they think the law is into their own hands in a deliberately rough a ride before considering a trip to the hospital, recently ending one victim’s life in Baltimore. I don’t buy stereotypes, including stereotypes of the police. My blood curdles when officers who should be brave and careful shoot unarmed and law-abiding Black men in the back saying they were scared.

Of course it’s now legal to carry guns. But not for African-American men. It’s not even legal for African-American men to look like they might be carrying a gun because it scares our policemen and someone often dies. Of course the rest of us are not supposed to react that way – we’d be charged with murder.

We call the police the finest – but many can’t deal with any but instantaneous obedience and agreement. Objections are often met with charges of resisting arrest or interfering with a police officer. My advice to anyone stopped by the police is to sound apologetic and compliant but say absolutely nothing except your desire to talk to an attorney – politely. It’s my advice to stay alive. But too many don’t get the message. They’re Americans who “know their rights” and they’re angry when they’re stopped for no good reason. They don’t respect people who fly off the handle at the first sign of disagreement, using their weapons to get “respect” for the cops.

Boy I’d love to have unqualified confidence in cops and troopers, to respect their bravery, good sense and commitment to police themselves. But fairness, accuracy and justice are far from consistent results of policing. Cops have told me they’d never rat on a brother and would deny what they knew to be true. I’ve had policemen tell me they change the facts to make people guilty of crimes – like convicting Black or young men in the wrong attire of carrying concealed weapons – including hunting rifles in plain view. Judges have told me they believe the police about half the time – they just don’t know which half.

There have been many exposes of police corruption. But when someone tries to stop it, they are ostracized, forced out or worse. Police unions protect police records so that no one, including the press, can get the facts.

That’s the force we have – one that condones bad behavior over codes of decent conduct. That’s not what our Founders dreamed of or what we deserve. It’s not about rogue officers. It’s about the misplaced loyalty that protects bad behavior. I’d lock their guns in the armory until they learned to police themselves and protect us all.

— This commentary was broadcast on WAMC Northeast Report, March 8, 2016.


The Death of Dontay Ivy and “Walking While Black”

March 1, 2016

I’ve been reading District Attorney David Soares’ letter to Mayor Sheehan on the death of Donald (Dontay) Ivy while in police custody. I’d like to discuss some of what came out of the D.A.’s investigation.

Donald Ivy went out to an ATM, to collect disability benefits, intending to come home. David Soares describes Dontay’s first encounter with the police that night. Two officers [quote] “approached … [Dontay Ivy] sitting on the steps of a property in the South End. The officers approached … in an attempt to learn if he was trespassing.” [close quote] Satisfied that he was’t, they left. Have you ever rested on the steps of a building? Did you think you were trespassing? You weren’t and he wasn’t unless the owner or tenant conveyed an objection or he had gone through a lock, door, fence or barricade. For the police, the mere fact that an African-American man was sitting on some steps was enough to check on him.

A little later that evening, Dontay was walking on Lark Street. Soares noted that it was 26 degrees according to “historical weather data.” But the officers’ became concerned because he was wearing a winter coat, what they called “a ‘puffer’ coat,” [close quote] was [quote] “walking heavily on his left arm” [close quote] and [quote] “appeared to be bunching up his left hand into his sleeve.” [close quote] I’ve done that, sometimes to shelter something from the weather, sometimes because one hand was colder, because of the way I’d been using my hands or had somehow restricted circulation in one hand.

According to District Attorney Soares, one officer said [quote] “the way he was walking didn’t seem right.” [close quote] I don’t know why – a crick, a cramp, or a little arthritis. I can imagine someone coming up to me and asking if I was OK. But the officers asked to see Dontay’s hands and wanted to know where he was going. I can’t relate to that from my experience. Can you?

Apparently because Dontay had on a loose fitting winter coat, whatever he was able to afford on his disability check, one of the officers [quote] “was under the impression that Mr. Ivy might have had a weapon, or possibly drugs.” [close quote] That inference was’t backed up by anything found on Mr. Ivy. It’s an inference that could easily be drawn about most of us sometimes, but I suspect few of us have had police make that kind of inference about us – certainly not if we have white skin and decent clothes.

The report continues that one officer [quote] “noticed what appeared to be a tied-off plastic baggy of the sort used to package drugs on the ground, about ten to twelve feet away from Mr. Ivy, near where he had been walking.” [close quote] If I had to explain every plastic bag found near me when I’m out for a walk, neither the police nor I would have time for anything else. And plastic bag stories are so common in cases where police are trying to justify a search that everyone in the criminal process has become enormously skeptical. It later turned out that the bag was empty.

After they questioned him further, they decided to pat Dontay down. According to the police, he consented, but reacted to being touched by pulling his hands down. Soares’ letter says, “From interviews with members of the Ivy family, we are led to believe that, as part of his mental illness, Mr. Ivy did not like to be touched.” [close quote] Mr. Ivy was under medication for his illness. Let me add that I have learned, from experience and from some direct remarks, that many African-Americans do not like to be touched even in ways that are completely unexceptional in the U.S., including a tap on the shoulder which got me a withering look from a speaker at an event of an organization of which I was a board member.

Obviously things kept getting worse until, as David Soares summarized the findings of the medical examiner, [quote] “Mr. Ivy suffered from an underlying condition that made him particularly susceptible to a heart attack brought on by the stress of the incident with the police.” [close quote] By the time of his death, that stress included the officers attempt to handcuff him, Ivy’s attempt to flee, a chase, subduing Ivy with handcuffs, leg restraints, a police baton and several taser strikes.

Clearly before the stress killed him, the stress led Ivy to do some things that were unwise, that I as an attorney would have advised against had I been able to reach him. But people doing stupid things under stress is a fact of being human. Interestingly, at one point, one of the officers told Dontay they were going to detain him because he couldn’t follow the officer’s instructions to keep his hands up, adding [quote] “You’re making me a bit nervous.” [close quote]

It’s striking how ordinary all this is – Dontay’s behavior before the police stopped him; his obvious fear of the police and what they were doing is also ordinary, especially in the Black community; the officers’ fear that Ivy had a gun, even though based on a string of inferences from very ordinary behavior, and fear about a possession which, under recent U.S. Supreme Court cases, would arguably have been within his rights.

But from all those very ordinary facts, a man is dead and the D.A., the grand jury, the police chief and the Mayor all apparently find no one blameworthy. What it means is that for [quote] “walking while Black,” [close quote] a man needs the savvy of a criminal defense lawyer and the courage to deal with stressful situations by focusing on how scared the police are because of the color of his skin.

— A shorter version of this commentary was broadcast on WAMC Northeast Report, March 1, 2016.


No Justice for the Vulnerable

December 29, 2015

In this season of charity, I’d like to talk about the fate of the less fortunate to make clear how our politics has been turning a blind eye to the damage it does.

When we aren’t responsible for the costs imposed on others, we will continue to hurt them. Economists call that externalities. Businesses don’t have to pay for the effects on our environment so most businesses continue doing global damage just as much as if they were perfectly benign. Forcing businesses to pay for workers’ injuries, forced them to take account of ways they could save money by protecting their workers – not out of the goodness of their hearts but because the legal system said they had that responsibility. When costs are internalized, they result in better overall decisions.

In the law of eminent domain, cities have to pay for taking people’s property regardless of how wonderful their plans. They have to internalize the costs their plans will do to the owners of real property. When they did urban renewal, the cities didn’t have to pay for the businesses whose customer base was destroyed, and they didn’t have to pay for forcing people into much less safe or appealing housing or projects. So cities avoided taking high priced real estate but they freely wiped out the businesses of the most vulnerable. Those costs were externalized, imposed on other people who had no choice in the matter.

In fact our system makes scores if not hundreds of thousands of innocent victims with no thought of internalizing the damage and paying any form of compensation.

When an individual is wrongly imprisoned for a quarter century and is lucky enough for someone eventually to find a way to convince the courts to let him out, with DNA or other conclusive evidence, that individual has to prove that someone was not only derelict in his or her duty, but did not have one of the many privileges that the law gives people in the criminal justice system, or that the city or state was derelict in its duty of supervision and training, before that individual has any right to compensation. Everyone in government gets to smile and say justice was done while continuing to do the kind of careless investigation and sometimes deliberate withholding of evidence that kept people in prison. They aren’t made to internalize the costs of their misbehavior.

Would police departments be so happy to retain police officers if the department budget took a big hit every time a cop guessed wrong and shot an unarmed civilian? Or would the department institute practices to make that stop?

In fact our law makes the victim or survivors prove specifically what the city should have done in training or by regulation or what the officer should have done under the circumstances. Asking only whether the officer’s behavior was reasonable, the law doesn’t take account of the reasonableness of the victim’s actions. In other words, instead of making the officer and the city responsible for their mistakes, it puts the risk of police error on the individual.

Of course that is typical of American law – protect those who don’t need it but leave the vulnerable in the gutter with a sheet and a prayer. There’s little justice in America for the vulnerable.

— This commentary was broadcast on WAMC Northeast Report, December 29, 2015.

 


Political Correctness

December 15, 2015

I want to address one of the issues coming out of recent events on college campuses, not to mention the rhetoric of Mr. Trump.

Frankly, I’m fed up with the attack on what the right wing calls political correctness. Apparently some think the condemnation of racism in our social interactions is merely political correctness. It should be open season on everyone. Of course that’s a two-way street. I can think of all sorts of epithets and insulting language to hurl at people who would protect nothing but their own right to trash everyone they dislike. That of course describes Congress – the wraps are off all forms of battle. There are no rules in a knife fight as a legal scholar once titled an article. Apparently civility is the enemy.

I think of politeness as normal and proper behavior in a democratic or any society. People were civil to me in Iran regardless of their reactions to my nationality or religion. But some denounce the very idea of civility, of being polite. Civility and politeness are essential to democracy because we have to live together. They are essential to democracy because we have to work across disagreements to get even the things we all agree on done. They are essential to democracy because if we make each other the enemy we are headed toward the breakdown of all democratic institutions, starting, as the Rehnquist Court made clear, with vote counting. Polite behavior toward each other is essential because without it we are headed toward violence.

I did not grow up with prejudice against Blacks but I did grow up with plenty of other instinctive prejudices that I did not investigate because they seemed so ordinary. Nevertheless I did not go around hurling epithets at people. I eventually learned to bury those prejudices, at least those of which I am aware, and to fight against the mistreatment of those selfsame people by our government and society. But being polite was always a different issue. It was about the respect that we are bound to show all people in a democratic society.

As you all know, I teach law. And I have often taught practice skills, interviewing, litigation, trial practice. I do not teach people to walk up to the jury box and ask a juror why we should want an ethnic, racial, or religious so-and-so like you to sit in the jury box. I do teach my students that talking with people or interviewing witnesses or clients requires respectful listening and showing some understanding of what they are trying to tell you regardless of what you may think of them. That’s necessary to get the job done.

When the people become the issue instead of their behavior, politics becomes particularly dangerous. When politics is no longer about issues but about people, it’s not just whether they lose a political debate; it’s that people stand to lose everything, to lose the protection of the laws. And by the same token the oppressors become the proper subject of the laws.

From the behavior of the right, or wrong, wing, I question whether they believe in democracy, and therefore whether, by their defense of political incorrectness they, the wrong wing, are entitled to respect. Makes me want to solve our political problems by just giving Texas back to Mexico.

— This commentary was broadcast on WAMC Northeast Report, December 15, 2015.

 


Do the police really have no time to do anything but shoot?

August 4, 2015

Perhaps you read the NY Times story over the weekend about the self-described expert in police killings, William Lewinski, who justifies every police killing on the ground that the policeman had no time to protect himself, no time to do anything but shoot. Victim’s back turned, no time. Hand in pocket, no time. Victim doing what the officer told him to do, no time. All the evidence contradicts the statement of the officer, no time.

On Lewinski’s logic, we should all not only carry weapons, we should shoot everyone on sight, because we have no time to react, so we should all practice  preemptive killing – dead men can’t shoot us. What we should really do is move to Iraq or Syria because that’s a matter of course there. Shoot, shoot, shoot.

And understanding that the police are taught by nut-jobs like Lewinski to shoot pro-actively, what we should really do is go out like armed vigilantes and attack the police systematically, kill ‘em all so they can no longer attack us. And in case you hadn’t noticed there have been groups that have targeted the police and for just that reason.

Lewinski’s approach is good only for the undertakers. I don’t know what the undertakers give him but they should chip in a lot because they will certainly benefit from a shoot on sight society.

Of course if you or I actually took that advice, we’d be charged with murder. But the rules don’t apply to the police. We can’t shoot unarmed people but police can – and get away with it. We can’t shoot people in the back but police can – and get away with it. We can’t tell a bunch of lies about what happened that are contradicted by the provable facts and get away with it but police can – and get away with it. Thanks to Lewinski.

Think what Lewinski and others of his ilk would have to tell the police if, like most of us, they weren’t armed. They’d have to tell the police to use their heads, not their guns. They’d have to tell the police to cool tempers instead of raising them. They’d have to tell the police that the best response to a disagreement isn’t a hole in the head. They’d have to tell the police that a traffic stop isn’t ground for ending someone’s life.

What a different world it would be if we learned to live together, if we learned that there is a difference between civilization and a jungle, if we learned that the default rule is respect for human beings, respect for life, liberty and the pursuit of happiness as the Declaration of Independence tried to tell the world. What a different world it would be if police in America acted like our servants, not our rulers, that they don’t have a God-given right to issue commands but that like most of us, the magic word is “please.”

It’s time to imitate the British and take the guns out of the hands of the cops and leave to special rules those more unusual occasions when guns should be issued for specific jobs and reasons. The ordinary rule must be to use our heads instead of blowing away everyone in sight, leaving only death and destruction in the wake of the police.

— This commentary was broadcast on WAMC Northeast Report, August 4, 2015.


Listening, Learning and Law Enforcement

May 12, 2015

Not long ago, I met the daughter of two of my wife’s high school teachers. Grant and Joyce Banks were legendary in Rutherford County. They traveled to the homes and met the families of every one of their students. Their purpose was to get to know and understand the circumstances of each of the people in their classes. They had no grading pad with them, just the warmth of their own personalities. When we got married, my wife took me to see them and we visited in their home. The last time I saw them was at my mother-in-law’s funeral – Mrs. Banks was too ill then to get out of the car but we stepped outside and talked with them.

Think about the possibilities of taking policemen around to meet every family on their beats, hat in one hand, the other outstretched and weapons back in the car, just to meet, and get to know the people. “Hi, I’m so and so.” “Are there things you’d like me to know?” “Have you had any problems with the police?” And just listen, without response except to make it clear you’re listening. In law school classes we call that active listening, so people understand that you hear them, understand what they are going through, and care about them. This isn’t the time for advice, instruction or explanations. Just “I hear what you’re telling me. I can’t make any promises but I will certainly bring up your concerns at the station or with my boss.” It’s a listening tour, but a very personal one.

That can be hard. I’ve had to endure criticism for some things I’ve run. It really didn’t matter whether the criticism was correct, helpful or plain nonsense – I’ve learned from hard experience that when people tell you what they want you to know, they are not waiting around for you to contradict them. They want to know you’ve heard. Responding is a separate problem and a skill in itself. The best lawyers understand that counseling their clients isn’t as simple as telling them what’s what. I remember one of the named partners of the corporate firm I started with telling our client over the phone from New York to California what my research made clear he had to do. Listening in Marty’s office I knew the client would not. A few weeks earlier, our client had his picture on the cover of Business Week. A few weeks later his company was delisted from the stock exchange. Counseling people, even when you’re right on the money, is not as simple as telling them.

For the police, it is crucial not to get into arguments with people – just to listen. Both the police and the residents have a good deal to learn about each other. And it can’t be done in the first conversation. In some fields this is called soft power. Police are used to thinking in terms of hard power – the power of guns and force. But without soft power, the power of empathy and trust – BOTH ways – their jobs are virtually impossible. I’d make every cop do it, and collectively I’d make sure they covered every family in the neighborhood – here, Baltimore, wherever. Cops have to learn to internalize the value of listening to people even, especially, when people are upset. If and when they learn to understand what people are struggling with, if and when they start cheering and rooting for the people in the neighborhood, we may be able to put most of the violence behind us.

Oh, visiting people like the Banks did might work in the schools too!

— This commentary was broadcast on WAMC Northeast Report, May 11, 2015.


Propensity to violate others – taking checks and balances seriously

April 28, 2015

Polls have found that more than 3 American men in 10 would rape or coerce a woman into sexual intercourse if they could get away with it.[i] Those findings have mostly been discussed only in conjunction with the issue of rape. But I think it has a broader meaning. I think it means that there is a proportion of people who will take advantage of defenseless others for their own benefit when they think that they can.

That creates problems in lots of areas. Like soldiers of countries that we think are less civilized then we, some proportion of American soldiers have resorted to forms of torture like waterboarding. Some go berserk, others are mean, but the misbehavior is predictable, if not who will do what. And like police of countries that we think are less civilized then we, some proportion of American police have also victimized demonstrators, people down on their luck, the homeless and racial minorities. That’s certainly not democratic policing. And it’s made worse by codes of silence in some police departments that are almost as sinister and sometimes worse than the codes among thieves.

I don’t think that most police are bad guys. But when we set things up so that people can get away with bad stuff, it is predictable that a significant proportion will. When we hand people guns and then make excuses for whatever they do because it’s a stressful job, we should expect that a significant proportion of them will do very bad things with the freedom we give them. A system of impunity encourages bad behavior. So one question is how we can set up our police forces so that policemen have the right incentives, incentives appropriate to a free and democratic country? Transparency and accountability matter.

The same is true of business, both international and local. When we take all the tools out of the hands of consumers and courts, we should expect a significant proportion of businesses to misbehave and take people for a ride, often for very dangerous rides. And in business the market mechanism can sometimes make things worse because it punishes those businesses which can’t bring their costs as low and their profits as high even when the mechanism is to take advantage of people, take their money, injure, and leave their lives in shambles. Responsible businesses need responsible regulation to keep the competition in line.

The same of course is true in politics. That’s why we value free speech so highly. But as my colleague, Timothy Lytton pointed out in a book called Kosher,[ii] a study of private marketplaces that do and don’t work, accountability depends on a sufficient number of people with intense interest in the subject, people the rest of us trust to check on what is happening, and a way to get the information out. It’s not automatic – there’s too much to know, too much work to find out.

So transparency is only the beginning. We have to have a culture in which we expect to hold people and organizations to account – without fear or favor for any of the groups and institutions that can hurt us. But in law, the Roberts Court seems to be developing the opposite – a legal culture of defenses and protections buried in contracts and doctrine. And in popular culture, stereotypes, ideology and polarization now substitute for facts. Heaven help us.

— This commentary was broadcast on WAMC Northeast Report, April 28, 2015.

[i] See Sarah R. Edwards,  Kathryn A. Bradshaw, and Verlin B. Hinsz, Denying Rape but Endorsing Forceful Intercourse: Exploring Differences Among Responders, 1 VIOLENCE AND GENDER 188, 190 (2014) available at http://online.liebertpub.com/doi/pdf/10.1089/vio.2014.0022. Though the survey size was small and localized, similar results have been reported before. See Only Psychos Think Rape is OK…Right? in Web Info on Sexual Assault and Abuse (University of Illinois at Chicago, Office of Women’s Affairs, Campus Advocacy Network), https://www.uic.edu/depts/owa/sa_rape_support.html collecting some of the studies.

[ii] Timothy D. Lytton, Kosher: Private Regulation in the Age of Industrial Food (Harvard Univ. Press 2013).


Follow

Get every new post delivered to your Inbox.

Join 368 other followers

%d bloggers like this: