Thoughts on the Death of George Floyd

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Martin Blank
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Thoughts on the Death of George Floyd

Post by Martin Blank » Fri Jun 05, 2020 1:23 am

The death of George Floyd is the latest in a string of unnecessary deaths of Black people at the hands of law enforcement officers. He joined Breonna Taylor, killed in bed as police smashed her door in a no-knock, no-announce entry and opened fire while serving a search warrant at the wrong house for someone who was already in custody; and Atatiana Jefferson, shot by a police officer who did not identify himself after she grabbed a gun when she heard noises outside. The list is much, much longer.

These are only a couple of the most egregious, those where the circumstances were clearly problematic. We could call them exceptions, accidents, or bad cops. In George Floyd’s case, Derek Chauvin, the officer accused of killing George Floyd, has a long disciplinary history with at least 17 complaints in 14 years. He was disciplined in only one instance with a letter of reprimand and maybe a short suspension. He’s been involved in at least three shootings, one fatal. Given his history, it’s natural to wonder about his actions.

But calling them exceptions has gotten much harder to do in the face of the evidence. Those who many of us expect to protect and serve instead hold their power over others, with sometimes fatal results. Thorough reviews of news and social media reports have, for the last few years, routinely identified more than a thousand officer-involved fatal shootings every year. Of the roughly 15,000 firearm homicides identified in 2019 in the United States, about 1099, or about 7%, are at the hands of police. (Note that I mean “homicide” in the technical sense, the death of one due to actions of another, and not necessarily as a synonym to “murder.” Self-defense, for example is often justifiable homicide, not murder.)

It’s easy to shrug these off as unfortunate but necessary violence. We trust that they’re reviewed and “bad shoots” will result in the officers involved weeded out. But does that happen? For all the jokes about “Infernal Affairs” getting in the way of real cops doing real cop work, those investigations frequently go nowhere, or take so long they effectively fall off the public’s radar. It took *five years* for the NYPD to recommend the firing of Officer Daniel Pantaleo for his actions in the death of Eric Garner.

It’s no easier for the public to hold police accountable. Many states have notoriously impenetrable laws surrounding police records. Dozens of states limit or completely block access to police records, and there’s no pattern to red or blue states about this. This makes it almost impossible for citizens or even legislators to conduct effective oversight for those who hold a virtual monopoly on legal violence. Even California only passed a broad transparency law in 2018, and only over extremely strong objections from police unions, who then went to court to insist that it only applied to records after the law took effect in 2019. (The courts have so far disagreed.). Florida has a remarkably open police records law. But the New York and the US Capitol Police have almost no transparency. There is no clear political rhyme or reason to whether a state or district has a policy of openness.

And just in the last couple of days, we’ve seen police on riot duty remove their nametags, tape over their badge numbers, and even remove their agency insignia. This raises a crucial question: If someone without a confirmable identity as a law enforcement officer gives you an order, are you legally required to comply? If you are, how do you know who is and is not legitimate law enforcement? How and where do you report abuses? How are those who abuse their power held accountable? How is this different from any of dozens of dictatorships that relied upon secret police to enforce the rulers’ bidding?

And even if you can figure out who and where to report, there’s a doctrine in US law called “qualified immunity.” The doctrine is fine on its face: a government employee has limited immunity from lawsuits when carrying out their official duties. It keeps elected and appointed officials, employees, and first responders from being harassed in court over their actions. If you think a firefighter could have saved your home if they’d made a different choice, you can’t sue them if their actions were reasonable at the time.

Nominally, there are exceptions. They shouldn’t be able to violate your constitutional rights, for example. But after a Supreme Court decision in 1982 in a case called Harlow v. Fitzgerald, the Court found in an 8-1 decision that “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Victims—i.e., the plaintiffs—must prove that the official knew at that time that their action was prohibited by law or by prior court precedent.

And in 2009, the Supreme Court decided in Pearson v. Callahan that courts need not determine if force was excessive before looking for precedent when it said, “The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” *”Clearly established.”* In other words, if there’s no law, regulation, or court precedent on the books, they get qualified immunity.

Again, on the face, this seems reasonable. If presented with an unusual situation and an official responds with effectively an educated guess, they should have a reasonable defense against that. But in practice, there’s an ENORMOUS loophole. The practical effect in the courts is that if there is no documented case of that *specific* right being abridged in that *exact* way, then qualified immunity applies. And this becomes a chain. Officers could violate someone’s rights, get qualified immunity because no one was ever held accountable, and then do the same thing, *because no one was ever held accountable.* It’s a vicious cycle of the worst sort. It greatly slows the creation of new violations round about 2009. Here are some examples of qualified immunity in the last few years:

• Two officers were accused of stealing more than $225,000 in cash and rare coins from suspects during a warranted raid on a suspected illegal gambling operation. The suspects, never charged or convicted, sued. The courts gave the officers qualified immunity because while “the alleged theft was morally wrong” (the court’s words), no precedent explicitly said that stealing from suspects while undertaking official duties is unconstitutional.
• An officer shot a teenager *after* the boy dropped a BB gun and raised his hands. He claimed excessive force, relying on a previous case where an officer was found liable after killing a man who was lowering his shotgun. The factual difference was that the boy had taken the gun from his waistband before dropping it, an action not taken in the previous case, so it was too different and the officer got qualified immunity.
• Khari Illidge was naked, covered in scratches, and behaving erratically. Responding officers tazed him at least 19 times before hogtying him (a restraint banned by many agencies across the country because of the serious risk of death). Then, an officer weighing an unbelievable 385 pounds (that’s not a typo) knelt on his back until he went limp, dead of a heart attack. The courts found that because there was no precedent that this was illegal, they got qualified immunity. This case followed one from a few years before where the courts had granted qualified immunity in another hogtying case resulting in the death of the suspect, so no precedent was set.

All these are absurd on their face. A civilian stealing nearly a quarter of a million dollars from someone will result in serious robbery charges. A civilian shooting an assailant who had dropped his gun and posed no further threat would get charged with assault with a deadly weapon or even attempted murder. A civilian suffocating a helpless victim would get manslaughter or murder charges. But because they were done under color of authority, the police involved faced no liability. None of these cases set precedent, either, so absent states passing laws to the contrary, police may still have qualified immunity for these acts.

This is all background for what we’re seeing right now. Dozens of journalists from around the world have been arrested, some while still on the air. One journalist lost sight in her left eye after she was hit by a rubber bullet. Police in Denver sprayed with pepper rounds a car uninvolved in protests because the driver yelled at the police for shooting one round at his car when his pregnant girlfriend was inside. A sheriff’s deputy in Riverside, California, smashed a random car window live on the air with no protesters anywhere nearby, and none of the surrounding dozens of deputies appeared to do anything about it. Then, of course, there was the clearing of the streets near the White House for President Trump’s Bible photos where, it turns out, police seemingly *did* use CS gas despite their protestations otherwise. (WUSA reporters gathered “SPEDE-HEAT” 37mm CS gas canisters along with “SKAT SHELL” oleoresin capsicum [OC] shells from the site.)

And these are but a few of the dozens of examples of, if not brutality then certainly overreach that observers and participants have publicized in the last few days. And virtually all, if they even get as far as getting sued, will get qualified immunity under current precedent so there’s no incentive to even try de-escalation tactics. Far from laughing at us for being unable to control rioting, our allies are condemning us for the brutal tactics taken by police.

This is not universal among the men and women in uniform. Many have spoken out on social media. Chiefs, captains, lieutenants, sergeants, and regular officers have walked into crowds to talk to them. Police have knelt and prayed with protesters. Some have even held up signs decrying George Floyd’s death. On a more personal note, I have a Facebook friend, someone with whom I went to high school, who is part of the LAPD. I trust him. He’s always been open on Facebook about the challenges that he and other police face on the streets. He’s described what he’s seen in handling protests and rioters. He distinguishes between the two groups, praising those acting peacefully and condemning those he sees taking opportunities to commit violence and theft. This isn’t the first time I’ve seen him take in the entire context and not boil it down to cops vs. civilians like some have done. So I know there are good cops out there.

Police do a dangerous job. They are asked to take on risks that many of us would not and make quick decisions that many of us could not. But it’s very clear that people who should never be cops are joining. Maybe they’ve been pushed around all their lives and it’s a chance to get back at society. Maybe they’re already bullies and they see the badge as a shield against punishment. Maybe they think all the gear new to police in the last couple of decades is cool and they want to use it in real life. None of these is a good reason to join the force. All of them are good reasons to keep someone off it.

There are also people who join with good intention but either burn out or fall prey to peer pressure. They see bad guys literally get away with murder, so maybe they fudge their testimony. Maybe they falsify or hide evidence. Maybe they coerce confessions. Some cops have said, often anonymously, that they have to toe the line or they can’t be sure they’ll get backup when things go bad.

For most of my life, I hid behind the pride of a colorblind society. Sure, there were some scumbags out there, but they were the minority, fading relics of a bygone era. Yes, a few people went to jail who shouldn’t have, but people make mistakes and the justice system figures out most of them.

But much like the intelligence community and the FBI before the late 1970s, before the Church Committee, the power of the police has grown unchecked. They have, literally, military weapons and gear designed for battlefield survival against similarly armed foes. They have electronics that can track and identify our cell phones without a warrant, protected by non-disclosure agreements with the manufacturers that result in police on the stand referring to “confidential informants” when they get information from the box with the blinky lights.

And they find it easiest to use them on those society almost inherently deems lesser: the poor, the homeless, the addict. They use them on those society has casually left behind, mostly non-whites. The ideal target is a mix of any of the above. These souls don’t have the resources to fight back, and when they do, they’re exceptions. And as I described above, they often lose anyway, and the police keep on doing what they did with no more than a slap on the wrist, if they got even that.

But if you think you’re immune to it, that your police aren’t like that and you’re safe because you don’t live in the wrong part of town, you’re wrong, or you eventually will be. If police are not held accountable, it won’t just be the poor or the homeless or the addict or the black or brown person who they abuse. It will be the white, middle-class family, maybe even the moderately wealthy, because lawyers are *expensive*. I’m a white male living in a nice part of town in a nice house and have some savings, but one arrest and prosecution could cost me *all* of that and more. It doesn’t matter if I’m innocent of the charge. I could be in the wrong place at the wrong time, get falsely accused, or even just do my job, the one I get paid for. Two people in my industry—both white males—got arrested and charged with burglary in a political spat between a local sheriff and the Iowa state courts that took months to settle out, and they still have a permanent arrest record. Wrong place, wrong time, and a sheriff who got pissed-off enough to try to make a point. What would have happened if their employer chose not to stand behind them?

It’s time for a new Church Committee of sorts, one focused on police, to take a deep look at what policing has become in our country. It should look at operational tactics and rules of engagement; at why people join, why they stay, and how it changes people; and at record keeping and reporting, so that we have information that reflects what’s happening and not just what officers and departments want to share. This should be a permanent committee with dedicated, qualified research staff, to collect data over the long term as to operational effectiveness and recommend changes. Deny federal police funding to any state that does not substantially implement the recommendations.
Some changes based on existing research can start almost immediately.

• We need transparency of police actions, with detailed reports of every actual or threat of use of force, and with civilian boards involved in disciplinary proceedings.
• We need a requirement that all uniformed police be identifiable by agency, badge, and name at all times.
• We need bodycam technology resistant to disabling and with long battery life to record their interactions for their protection as well as ours.
• We need ongoing, mandatory training for, and strong policies for use of, de-escalation, empathy, and community relations so that police understand and are trusted by the neighborhoods they patrol.
• We need changes to qualified immunity that require de-escalation and make it easier to set precedent for bad behavior.
• We need to set requirements that officers who see something wrong actively intervene, not just make a complaint later, and hold accountable those who fail to do so.
• We need to demilitarize police such that they aren’t better equipped than our own troops deploying into combat zones overseas.
• We need to require periodic, independent psychological evaluations to identify those getting burned out and find a way to either rejuvenate them or remove them from policing.
• We need to undertake systemic, independent analysis of all police investigative methods to ensure their scientific rigor, so that junk science like bite mark analysis and hair analysis can get weeded out of the system, and interview methods like the Reid Technique, which presumes guilt and tries to get the suspect to justify the crime, are replaced with methods more likely to elicit accurate information.

Almost all of these, aside from qualified immunity reforms, already exist in various states and individual law enforcement agencies across the country. By making them universal, we set expectations to everyone’s benefit.

Further, all of these have been shown to improve community relations, build trust in police, raise the quality of policing, reduce complaints, reduce violence against and on the part of police, and reduce crime. It’s not exhaustive, and other solutions are also possible. This doesn’t get to the significant disparities within the courts, prisons, and post-custodial periods, which are desperately in need of their own reforms, but those are for another writing.

I don’t condone those lashing out violently, but for those with legitimate grievances who nevertheless do so, I am trying to understand where the anger and rage came from. Ever since I was a little child, I have held fairness and justice up as some of my highest ideals. I can sit in an ivory tower and point at words in the Constitution and in laws and court decisions, or I can listen to what’s happening on the ground. I did the former for far too long. I’m trying to do the latter, and I have a lot of ground to make up.

From its founding, this nation has always been about the promise of a better tomorrow. There has never been a time when we’ve fully lived up to the ideals enshrined in the Declaration of Independence or the Constitution or in law. Try as we might, there have always been those who have abused the law to oppress others. We’ve usually found a way to make things better, but it’s never been without pain, loss, and almost always unrest. Maybe you’ve never seen or experienced their struggle, but it’s there. We need to accept that, and we need to find solutions without making it us vs. them. If the Founding Fathers, people of diverse economic and political backgrounds who argued sometimes violently over the nature of government, could come together to forge a new nation twice in the span of a dozen years, we in the modern age can work together to figure this out.
If I show up at your door, chances are you did something to bring me there.

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Re: Thoughts on the Death of George Floyd

Post by Deacon » Fri Jun 05, 2020 2:22 pm

That’s a thorough and thoughtful review. I know a few different local police and sheriff’s deputies, and my father is a retired federal LEO (DEA). I don’t personally know any “bad” cops in any of the various forms that can take. I do know of the frustrations at every level with feeling like the deck is stacked against them, anger at bureaucracy and lawyers, frustration with subcultures that seem fundamentally at odds with what otherwise seem like fully reasonably law, tangling with some of the same known characters over and over again, etc. Enforcing the law brings you into contact with the worst of society at every level, and it seems like it almost always wears through the veneer of civility eventually. It can take people who didn’t start out racist or classist and push them toward casual comments and attitudes that would’ve horrified them only a few years before.

I still think the unaddressed elephant in the room remains the “War on Drugs” that we continue to wage and lose at great expense both literal and figurative. Incarceration levels are at an insane level, often for victimless crimes of mere possession, too often of minor intoxicants misclassified as narcotics, with narcotics themselves being a questionable choice for gestapo enforcement tactics. Just as alcohol prohibition gave rise to organized crime, creating and empowering gangs and cartels, drug prohibition created the Latin American cartels and to a lesser extent Asian cartels, helps fund the Taliban, is used to justify authoritarian policing practices, opens the door to militarization of police equipment and tactics, and generally ruins lives in dramatically greater numbers and with more far-reaching effects than any of the drugs themselves. The cure is worse than the disease, and it’s a lot more expensive.

Can you imagine if just half the budget just at the federal level, otherwise used to put millions in prison, were instead used for rehabilitation and other such resources? Since alcohol prohibition was repealed, bootleggers are an obscure novelty, and violence around the creation and distribution of alcohol virtually non-existent. If drug prohibition were repealed—no constitutional amendments necessary—then the riches and power inherent in the illicit drug trade go away, removing the whole reason for everything from violent street gangs to massively violent cartels. And it removes so much of the catalyst for violent confrontations with police as well as helps break the poverty-incarceration cycle.

People who can’t afford the help they need don’t get it, and instead they get ramrodded by the judicial system and branded a criminal for life. It’s an insidious foundation for unnecessary conflict between the people and law enforcement.

I don’t know that on its own it would’ve prevented George Floyd’s death, but it would go a very long way toward removing the spike strips that send major portions of our population spinning perpetually out of control and alleviating some of the frustration with those who intentionally lay those spikes in place while claiming righteousness in doing so.
The follies which a man regrets the most in his life are those which he didn't commit when he had the opportunity. - Helen Rowland, A Guide to Men, 1922

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Re: Thoughts on the Death of George Floyd

Post by Deacon » Fri Jun 05, 2020 7:49 pm

A related and developing story.

https://www.nytimes.com/2020/06/04/us/l ... catee.html

The David McAtee Shooting: Did Aggressive Policing Lead to a Fatal Outcome?

The Times analyzed videos of the shooting by the police and National Guardsmen of David McAtee in Louisville, Ky., on June 1 to show how the episode unfolded — and how questionable policing tactics played a role.

In the confusing final seconds of his life, David McAtee saw his barbecue stand in Louisville, Ky., fill with people seeking shelter from law enforcement.

The police and National Guard had gotten to the intersection of 26th Street and West Broadway to enforce a 9 p.m. curfew. It was past midnight, and groups of friends in the city’s predominantly black West End were mingling and listening to music outside of Dino’s Food Mart, a popular gas station hangout, and YaYa’s BBQ, Mr. McAtee’s modest restaurant.

“Go! Go!” the officers yelled. Then, they fired pepper balls.
The follies which a man regrets the most in his life are those which he didn't commit when he had the opportunity. - Helen Rowland, A Guide to Men, 1922

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Re: Thoughts on the Death of George Floyd

Post by Martin Blank » Mon Jun 08, 2020 4:42 pm

Democrats have unveiled a police reform bill called the Justice in Policing Act 2020. It's not up on congress.gov yet (I'll add a link when it is), but according to Wikipedia, it would:
  • Grant power to the Justice Department's Civil Rights Division to issue subpoenas to police departments as part of "pattern or practice" investigations into whether there has been a "pattern and practice" of bias or misconduct by the department
  • Provide grants to state attorneys general to "create an independent process to investigate misconduct or excessive use of force" by police forces
  • Establish a federal registry of police misconduct complaints and disciplinary actions
  • Enhance accountability for police officers who commit misconduct, including by restricting the application of the qualified immunity doctrine, and by changing the federal statute on police violation of constitutional rights to lower the standard of criminal intent from violation conducted "willfully" to a violation "knowingly or with reckless disregard"
  • Require federal uniformed police officers to have body-worn cameras
  • Require marked federal police vehicles to be equipped with dashboard cameras.
  • Require state and local law enforcement agencies that receive federal funding to "ensure" the use of body-worn and dashboard cameras.
  • Restrict the transfer of military equipment to police (see 1033 program, militarization of police)
  • Require state and local law enforcement agencies that receive federal funding to adopt anti-discrimination policies and training programs, including those targeted at fighting racial profiling
  • Prohibit federal police officers from using chokeholds or other carotid holds (which led to the deaths of George Floyd and Eric Garner), and require state and local law enforcement agencies that receive federal funding to adopt the same prohibition
  • Prohibit the issuance of no-knock warrants (warrants that allow police to conduct a raid without knocking or announcing themselves) in federal drug investigations, and provide incentives to the states to enact a similar prohibition.
  • Change the threshold for the permissible use of force by federal law enforcement officers from "reasonableness" to only when "necessary to prevent death or serious bodily injury."
  • Mandate that federal officers use deadly force only as a last resort and that de-escalation be attempted, and condition federal funding to state and local law enforcement agencies on the adoption of the same policy.
I suspect this is limited to those agencies receiving or using federal funds, but that's pretty much all of them at this point.
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