A very interesting, and chilling, comparison of American failure to reform police with much better results elsewhere, which makes garbage of the frequent claim that “we’re no. 1,” is called To Protect and to Serve: Global Lessons in Police Reform. I highly recommend it.
The Governor charged communities to re-examine their police departments, and several pieces in the local paper described the disproportionate treatment of African-Americans, ending up with the question whether police are racist. I like and respect the authors and there’s a lot of wisdom in those pieces but, to make progress, I question focusing on blame. Segregation was “inherently unequal” regardless of what the officials thought they were doing. Blame is about fault. I want improvement, not some Grand Inquisitor looking for purity. That makes everything harder.
The Supreme Court under Chief Justice Burger started out with a just-the-facts approach in 1971, saying even unintentional discrimination violated the law without a good reason for a rule that blocked African-Americans from advancing to better jobs. Unequal effects on different racial groups required strong, legitimate justification, regardless of what was in management’s heads or hearts. Congress backed that up in statutes requiring business necessity to justify practices creating a disparate impact among people based on race, color, religion, sex, or national origin. No one needs to be described as racist. They made an unjustified decision, and African-Americans deserved to be treated fairly.
But, starting in 1976, the Court defined denial of equal protection as intentional discrimination. Since then the Rehnquist and Roberts Courts found it easy to use supposedly good motives as a fig leaf covering egregious discrimination.
There’s no good reason to make the same mistake. Arguments about racism start with an accusation, and lead people, whose cooperation is needed, to circle their wagons and bring up their heavy guns, from police unions, to politicians’ simplistic descriptions in heated public debates. No one will break ranks and justice loses.
The answer must be objectives and metrics. What’s a policeman’s job? One piece is simple: “Dead or alive” is movie talk. Arrests are to bring people in alive so we can charge them appropriately, and determine guilt, innocence, and proper punishment, rather than content ourselves with a coroner’s report. People arrested are entitled to due process and a chance to defend themselves. It’s important to encourage police to take the role of peace officers. Whatever other claims we can argue about, the demand of Black Lives Matter that we bring people in alive, not dead, is clearly right. Dead people represent failure. It’s a tough job, but the job is to bring people in alive.
If an inordinate percentage of African-Americans are stopped and arrested, it’s legitimate to ask the cops themselves what they can do to change it. If an inordinate percentage of 911 calls by African -Americans are ignored, it’s legitimate to ask police what they can do to change it. We need action, not blame. And we need peace officers to work with us. The issues are big but we have to cut through the hostility and get to cooperation.
We should hear them out about how they can help solve the problems, how they can help stop needless killing. The defensive answer that everything is fine and we should admire and trust police because they are brave isn’t a defense; it’s an indictment. Bravery has nothing to do with shooting people in the back or killing people already subdued. We can have a realistic discussion of what can be done to make things better only if they are willing to face the problem and agree to help solve it. Once people are doing the right thing, it will eventually seem normal and right.
Meanwhile, we have a right to see action.
— This commentary was scheduled for broadcast on WAMC Northeast Report, on November 17, 2020.
The Black Lives Matter movement is being waylaid by provocateurs and others who want to use the opportunity to loot stores or, as one hoodlum did, shoot people on camera and then, apparently craving notoriety, tried to give himself up to police who ignored him because he’s white and they were convinced all bad things are black.
That’s part of the reason Martin Luther King was so determined that his people be completely nonviolent. People like John Lewis had their heads cracked. Four little Black girls were blown up in their church. Emmet Til and lots of others were murdered, including white people working in solidarity with the African-American population struggling for freedom. How many murders, how many lynchings does it take to convince people that the African-Americans were innocent victims, not perpetrators.
Thousands of people were killed and lynched. Do we have to go through that again. We’re taught the police are brave. How brave do you have to be to shoot people in the back? How brave do you have to be to shoot a woman asleep in her bed, or a man putting his key in his door, or keep a knee on a man’s throat as he dies? None of them were armed. But seven shots paralyzed Jacob Blake. 41 shots killed Amadou Diallo – who never had a chance or a weapon. Abner Louima was attacked and sexually brutalized by police. When will it be enough? When will it ever stop?
We’re told there are good cops, that most cops are good cops. I’d be delighted if they’d act the part, if they’d stop the bad ones from committing murder, if they’d participate in drumming people like that out of the force. One former policeman in our area came here to live because he had exposed massive corruption in the New York City Police Department and, regardless of those supposedly good cops, cops drove him out of town, initially by attempted murder. Where are those good cops when we need them?
Where people aren’t allowed to protest in peace, they may have to find a different way to protect themselves while making their point. Perhaps they’d do better putting Black Lives Matter t-shirts on everyone and circulating on busy streets without congregating or waving signs. Perhaps they’d do better using the time working on the election. Do Trump, and other bigots, with and without guns, have to be driven out of power, before it’s possible to deal with the real violence? There’s what’s called a ground game to be fought to win this election – letters, calls, information, rides – lots of organizations are working on it and lots of people are trying to help out. People of color need friends in high places to get what they deserve. Martin Luther King was in league with President Johnson – King was the greater man but Johnson had the power. Perhaps the demonstrators would do better to skip the streets and take the White House. Perhaps that would deny Trump and the hoodlums who support him anything to scare people with. Perhaps going for votes would outfox them and put the truly violent elements in our society in their cages.
— This commentary was scheduled for broadcast on WAMC Northeast Report, on September 1, 2020.
I wanted to deliver this last week but Trump’s use of the military against domestic protestors had me fear for the future of our republic and I put this off.
But I want to talk about these horrible scenes of murder of African-Americans by police. People killed who posed no threat, where the police had everything well under control, and it wasn’t even clear if the victim had done anything meriting police attention, let alone murder. Breonna Taylor, an EMT, was killed in her bed in Louisville.
This reminds me of the Civil Rights Movement I grew up with. People in prayer outside boards of election that wouldn’t let them register. 14-year- old Emmet Til killed on a visit to Mississippi relatives, accused of whistling at a white woman. Viola Liuzzo, a civil rights worker shot in her car. Michael Schwerner, James Chaney and Andrew Goodman, an integrated trio of civil rights workers, released by police in front of thugs who followed, murdered and buried them where they were not expected to be found.
The murders and lynchings stayed in front of our eyes until we hurt, just as we are hurting for George Floyd, choked to death in Minneapolis; Walter Scott, over a brake light in Charleston, SC; Ahmaud Aubrey, killed for jogging while Black in Georgia; Tamir Rice, a twelve-year old, in Cleveland; Stephon Clark, killed for holding a cell phone in his grandmother’s Sacramento backyard; Michael Brown in Ferguson, Mo.; Eric Garner, in Staten Island; Tony McDade in Tallahassee; and Trayvon Martin, a teenager, killed by a neighborhood vigilante who thought he didn’t belong, compounded by the jury’s acquittal. Their stories, and so many more, are unacceptable. The police are supposed to protect us. But they kill too. African-Americans have learned not to call the police in order to protect their own families. I can’t forget the acquittal of four officers here in Albany for killing Amadou Diallo, a Guinean immigrant, in a barrage of forty-one shots for trying to put a key in his door.
The U.S. Supreme Court enabled a century of lynching in 1876 by holding that a U.S. Attorney had no authority to prosecute the perpetrators of the Colfax Massacre.[i] After that, police and the Klan, which also infiltrated the FBI, acted with impunity in much of the country. The Court now does its best to restore the worst abuses of that century of intimidation and impunity.[ii] I recently worked on a brief in support of the family of a Mexican boy, in a cross-border shooting by American officers for playing too near the border. The Supreme Court protected his killer. As Pete Seeger asked, “When will it ever end”?
And yet we can’t get tired, we can’t stop, we can’t let all the abuses this country has tried to stop elsewhere define life for a third of our citizens at home. No one is free when anyone is in chains. I don’t want to have the deaths of thousands of decent people on my conscience. I don’t want my darker skinned friends, colleagues, clients, neighbors, essential workers, athletes, entertainers or any other good people and their families having to worry day and night about eluding people who want to kill them or think they aren’t worth living?
When Yugoslavia started to come apart, we had an exchange student living with us who was from Belgrade. She cried about what was happening to her country – the whole country, Yugoslavia. There was intermarriage, friendship, strong neighborhoods, business partnerships, and none of that protected people. When things start to fall apart, there is no safety. We need to stand up for decent people of all backgrounds. And remember that none of us and none of those dear to us are safe when shooters are empowered, with or without a badge.
— This commentary was scheduled for broadcast on the WAMC Northeast Report, on June 30, 2020.
[i] LeeAnna Keith, The Colfax Massacre: The Untold Story of Black Power, White Terror, and the Death of Reconstruction (Oxford Univ. Press 2008); Charles Lane, The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction (Henry Holt & Company 2008); and United States v. Cruikshank, 92 U.S. 542 (1876), the case that turned a massacre into a century of intimidation and impunity.
[ii] Stephen Gottlieb, Unfit for Democracy: The Roberts Court and the Breakdown of American Politics 189-208 (2016).
The Governor wants us all to reinvent policing in our own communities. Let’s pull that apart. He wants each separate community to have a conversation about policing and reset everything. Sounds good. Community is a lovely warm word. But I think the reality is a lot different than it sounds.
Lots of folk assume what academics say is just theory. But the difference is addition. Academics add up all the examples. They take what Google calls the satellite view. They don’t necessarily interview people like cops and lawyers. They want the big picture – what’s happening. And when you do all the examples and add it up, what you discover are vast numbers of communities engaged in keeping everybody else out – using everything from acreage requirements to zoning. So, Governor, are you telling us all to rebuild segregation by having each of our communities use policing to keep everyone else out? “Looks like he doesn’t belong here; get rid of him.” Some communities will try to protect everyone, but they’ll be surrounded by rules and cops that say keep out.
So I don’t expect anything constructive to come out of the Governor’s mandatory conversations. Breaking us down into our little private sanctuaries, the game is already stacked.
Forgive me for repeated something I’ve said before, but guns should need an excuse and a warrant before they’re pulled out in public, because guns make bullies of us all. My cure for police misbehavior? Firearms aren’t always used, but to change the culture, to motivate people to use their heads, I’d put an unarmed force between the police and the public and call for arms only when necessary. Guns and ammunition can do a lot of harm – even if only by intoxicating the officers with a sense of power.
An unarmed force would need to use their heads, to de-escalate conflict instead of aggravating it with belligerent language and a show of force.
I was asked to speak to a group of high school students alongside a policeman about relations with the cops. He told them to show respect and everything would be OK. What about the adult? The police also have an obligation to show respect for people, old and young, upset or calm. Those guns make bullies of us all – cops included.
I have no objection if the cops think wireless video connections should be provided so the department could rush help if there really is any danger. But a video stream would be more effective than a gun in convincing people to cool it. I’d put officers on the street without their guns.
I helped do a memorial for a friend a few years ago – we were both on the NYCLU Board when Jerry died. Forty years before that he was in charge of a group of attorneys in Mississippi during Freedom Summer 1964. A historian, Thomas M. Hilbink, had done a study of that group of lawyers and, reading his paper while preparing for the memorial, I discovered that Jerry had been in numerous life or death situations. Down there, by the way, the police were closely allied with the Klan. But Jerry came back healthy and strong – one of the best litigators the Civil Liberties Union had. He used his head. He de-escalated. And he protected everyone working with him.
OK, Jerry was extraordinary. So was Mississippi that summer. Jerry was truly brave, not just filled with the bravery of firearms. And he wasn’t so foolish as to pack or pull heat.
— This commentary was scheduled for broadcast on WAMC Northeast Report, on June 16, 2020.
After practicing law, it’s hard to stick to stereotypes about people, whether the police, the looters, whites, presidents or anyone else. Lawyers see the best and the worst, Mother Teresa and Jack the Ripper. The good and bad aren’t predictable.
We have lots of stereotypes about African-Americans. I’ve worked in and for the Black community but I’ve never met the stereotype. Instead I’ve gotten to know a lot of wonderful people at all levels of American society.
Police? Actually I think the police are like rest of us in all other walks of life, comprised of everyone from the best to the worst. We stereotype the police. Since they’re brave, we stereotype them all as good people. Americans don’t like to call people they despise brave, but if risking death is brave, the cops share that honor with lots of the people they pursue – gangsters, gang members and terrorists. So it’s pretty obvious that I don’t see the connection between bravery and decency. There are police who heroically track down dangerous people and rescue the innocent. But there are other police convicted of everything from fraud to the murder of women and children as well as unarmed and peaceful African-Americans.
Presidents? It had to happen that we would have one who’d try to preserve his power against the wishes of the American people. He fans the flames and encourages chaos so that he can gather the military and pretend to put out fires that he fanned, using the military against domestic dissent. He stripped many of the finest military men from command to quote “work” in his White House, and when they discovered they could not behave intelligently and patriotically they resigned. Monkeying with military leadership is dangerous. And Trump is using his die-hard armed supporters with their “Second Amendment rights” as Storm Troopers in disguise. It couldn’t be clearer that he wants to become dictator. That’s the route they take – encourage violence, create chaos and then pose as the savior.
The men who created our country knew that power corrupts. They made no assumptions but tried to create checks and balances to counter against the certainty that it would happen. They didn’t figure out how to control the Senate before it made a mockery of the impeachment process. Yes, he’s guilty of lying and a cover-up, but no matter, that’s not serious enough. Is abandoning world leadership to the Russians and Chinese disloyal enough? Is a daily string of lying to the American people and making up fake quote “facts” serious enough? Is threatening insurrection with what he refers to as “Second Amendment rights” serious enough? Is there a Second Amendment right to storm state houses and threaten governors with their weapons? Is that serious enough? Is trying to poison Americans with fake so-called “cures” serious enough? Is the slaughter of a hundred thousand Americans because he dithered in dealing with disease serious enough?
Yes, along with decent and heroic officers, there are some who are intoxicated by the power of their weapons, corrupted by their stereotypes of African-Americans, and protected by a culture of silence and solidarity. But their faults are encouraged by a pretender in the White House for whom nothing is too much to keep him in power.
We often use the tool at hand for whatever we’re trying to do. Got aspirin or alcohol? Drink it down ‘cause everything feels like a pain. Got a wrench? Everything looks like a pipe. Got a hammer and everything looks like a nail. Pete Seeger sang If I Had a Hammer he’d have used it to hammer out justice. It’s a wonderful song but it seems like the wrong tool.
Some of you may remember the late Congressman Steve Solarz. We went to high school together and I always remember a conversation we had about brotherhood – in student government I headed the brotherhood commission. Steve understood my passion and commented we can’t hammer brotherhood into people. Indeed, we can’t. Instead I had the privilege of inviting Jesse Owens to our school and introducing him to the assembly. Owens, an African-American, had won four medals at the 1936 Olympics in front of the Nazis in Berlin, Germany. We gave him our brotherhood award and then had the privilege of hearing him deliver an impressive and very powerful talk about brotherhood – a great alternative to using a hammer.
In the afternoon before I drafted this commentary, I read about a recent incident of abusive policing in Albany. In the evening, my email was filled with a discussion among law professors about an example in Louisville. Look at Washington and see international sabre-rattling. I looked over some draft commentary and read one about Israel’s reliance on force. And I realized there is a theme. Everybody has the same hammer with a barrel and a trigger. Much too often, from Albany to Louisville to Israel, the Philippines and many other places, the people with the guns don’t bother using their heads or their manners. They don’t have to. Them guns ‘ll make people shut up.
I don’t want to be simplistic about it. Policy changes often lead to overreaction. Focusing on domestic law enforcement, the public somehow has to support the police while also controlling it.
Nevertheless, mappingpoliceviolence.org/ tells us “There are proven solutions. Police Departments that have adopted these use of force policies kill significantly fewer people. But few departments have adopted them.”
Of course, if we could hang them up or put them away except when necessary, we could eliminate a lot of mistaken killing of innocent and unarmed people. There’s lots that police do that don’t call for guns.
Guns also don’t belong in cities. It’s one thing to use a gun for hunting but it’s another for people like George Zimmerman to think they are protecting the community by carrying a gun and killing an unarmed 17-year-old African-American who was heading away from, not toward, Zimmerman.
Guns do not belong in the hands of people who are convicted of domestic violence or any other kind of violence – only the manufacturers could truly like selling guns to people likely to use them on their families. Guns enable people to act out their worst instincts.
I support the Second Amendment right to carry a muzzle-loading-single-shot-18th-century device deep in the woods. That’s the strict construction that conservative judges have been trying to teach us to use. Claims about the breadth of the Second Amendment come from people’s prejudices, not the Constitution. Guns should need an excuse and a warrant before they are pulled out in public because guns make bullies of us all.
— Addendum – four excellent podcasts and web sites:
Shots Fired Part 1: https://www.wnycstudios.org/story/shots-fired-part-1
Shots Fired Part 2: https://www.wnycstudios.org/story/shots-fired-part-2
— This commentary is scheduled for broadcast on WAMC Northeast Report, April 9, 2019.
Brett Kavanaugh is now supposed to be called “Justice Kavanaugh.” The Constitution refers to members of the Supreme Court as judges. Whether the term “justice” will be appropriate depends entirely on his behavior. Of that I am doubtful. I think there was no justice for Dr. Christine Blasely Ford.
There is strong evidence that Kavanaugh will solidify a majority for repealing a half century of progress on voting rights, women’s rights, gay rights, anti-discrimination law and protections against our becoming a police state. Kavanaugh invariably parried questions about his views with recitations of prior law, showing only that Kavanaugh could explain the cases, but never denying his likely impact.
Nevertheless, Trump and his Senate sycophants would have nominated and confirmed someone equally damaging to American law. More ominous are Kavanaugh’s views about whether it is OK to investigate a sitting president.
Kavanaugh joined the investigation of President Clinton on matters stemming from his relations with Paula Jones. That suit was dismissed because it didn’t claim Clinton violated the law. It was brought, however, for purposes unrelated to the suit, namely to enable fishing expeditions on Clinton’s behavior. That’s called abuse of process. Those questioning Clinton eventually found Monica Lewinsky. By contrast to Trump’s behavior, she was a willing participant. In those days Republicans were puritans. Kavanaugh pursued Clinton with gusto.
Then, with Bush in the White House before the election of President Obama, he told an audience at Minnesota Law School, that he had changed his mind. He wrote that defending against the Paula Jones litigation took Clinton’s attention off the growing threat from al Qaeda and similarly weighty matters. So Kavanaugh concluded that there were good reasons not to sue sitting presidents. He added that impeachment was always available. Left unsaid, however, was that to be more than a partisan political tool, impeachment must rest on investigating to determine what happened.
Unlike the Clinton investigation, the investigation of the Trump campaign is about the violation of multiple laws, both constitutional and statutory – whether Trump’s campaign worked with a foreign country to tamper with an American election and support that country’s interests in exchange for putting Mr. Trump in the White House. The Mueller investigation provides an independent, nonpartisan basis for considering impeachment. Without Mueller, we have only partisanship – a partisan whitewash or a partisan indictment.
So, Trump’s selection of a judge who doubts the legitimacy of investigating a sitting president strengthens his attacks on the ongoing investigation. That’s not news, given Trump’s tweets about pardons and remarks about firing Mueller. But we don’t allow people to be judge in their own cause. What we already know about the Trump campaign justifies a deeper look. And Trump’s effort to control the investigation can amount to impeachable behavior. For Democrats to take back the Court, the law and the cause of justice, they will have to defeat Kavanaugh’s senatorial supporters and elect a Congress prepared to prevent presidential abuse. In other words, the battle isn’t over and the stakes just got larger.
— This commentary was broadcast on WAMC Northeast Report, October 9, 2018. This is a revised and updated version of commentary originally prepared for broadcast on September 18, 2018, pulled because of the Kavanaugh hearings, rescheduled for September 25 but pulled again at the last minute because of new developments in the Middle East. The earlier version was posted here.
Two weeks ago, I’d prepared commentary about the value of generosity in foreign affairs but awoke to the horrible reports from Las Vegas. I went ahead with it while I caught my breath and planned commentary about guns. But generosity is very relevant and I want to return to it. Gun rights definitions which don’t account for the thousands of people killed with guns every year are simply selfish. The it’s-my-gun-so-you-have-no-right-to-regulate-it attitude is selfishness, not liberty.
Stephen Paddock shouldn’t have been able to climb to the 32nd floor of the Mandalay Bay Resort with automatic weapons just because he claimed the right. Automatic weapons don’t prevent government tyranny as gun advocates sometimes claim; they’re weapons of war and provoke tyranny. We all have a right to safety and security but nuts with powerful weapons deprive us of that birthright. In a battle between self-defined freedom seekers and the military, everyone loses, permanently.
Generosity and its absence are underlie most of our political struggles and the gridlock in our national affairs. Selfish definitions of liberty which refuse to take account of the damage to others are out of keeping with our national history and traditions. Like misbegotten gun claims, arguments for an unregulated market, which ignore the hundreds of thousands of people injured by selfish business and corporate practices, are hypocritical cover for outrageous behavior. Selfishness is not a definition of freedom.
Generosity is relevant in yet another way. Our polarized politics and lack of respect for each other reflect declining generosity, when me, me, me is all that matters but opponents don’t. When people throw bricks through windows, and shoot bullets through skulls over politics, there’s no safety except in hiding. How many congressmen and women will have to be shot before Congress comes to its senses? Unwillingness to work with a president of the other party, lest he accomplish anything, is about disrespect, where only one’s own purposes count. If it was appropriate to prevent a vote on President Obama’s nominee, though a majority of the Senate would have supported Garland, is there any reason to respect any decision for which Gorsuch is essential? If it was all about them, then it’s equally appropriate that it’s all about us. That’s not democracy. That’s war.
President Trump says we all come together after a tragedies like these. We know that has been nonsense, that pleas for help after Sandy were scorned by representatives of other parts of the country, and Trump treats the efforts of Puerto Ricans as less worthy than those elsewhere. People in the continental US would have been equally helpless except that relief agencies and the Red Cross were able to organize supplies where they could be delivered, and the destructiveness of the hurricane in Puerto Rico went far beyond what happened elsewhere. But no, this was an opportunity to disparage people who aren’t part of the Trump coalition. Shame.
Even the right not to be shot in the back by officials with badges has somehow become a political issue, as if there are two sides to that question. By comparison, I’m all for the immigrants and their generous patriotism. I’ve had it with selfish imposters like Trump, Cruz, and McConnell. This country may be great again but only when we are rid of the people whose political ideal is to tear us apart.
— This commentary was broadcast on WAMC Northeast Report, October 3, 2017.