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JUST STOP

On April 11th, 2021, three days to one year before the first incident I wrote about below, officers shot and killed Mr. Daunte Wright during a traffic stop. During the stop, Mr. Wright was being handcuffed, then tried to wrestle himself away from the officers and get back in his vehicle. The officer who shot him yelled “taser, taser, taser” and then shot him. After the shot, Mr. Wright took off and later died.

I was living in Berkeley when Oscar Grant was shot in 2009 at a BART terminal. There, the officer claims to have made the same mistake that the officer in this case made - meaning to use a taser, but using a gun instead. It’s an absurd excuse and anyone who is that reckless around a lethal weapon shouldn’t be allowed to have one, but it begs so many questions. Why did they have a gun out in the first place during a routine traffic stop? Why was the first instinct, when Mr. Wright got back in his car, to pull out the taser to tase him. This was allegedly a traffic stop for an air freshener hanging in the front window, or, as we call it in the criminal defense business, driving while black. What about that situation led this officer to believe that a taser would be necessary. If Mr. Wright drove off and escaped detection, what would be the worst case scenario - they had the license plate, so they’d get him later. When we say that it isn’t a problem of individual cops, but a problem of the culture of policing in general this is what we mean. More training, more education, but, most of all, three armed police officers don’t have to show up for a traffic stop to enforce an air freshener hanging in the rearview mirror.

According to the FBI, in 2019, there were 48 officers killed in action. In 2018, there were 56 officers killed. (2015 - 41 officers, 2010 - 55 officers). Each death is tragic. There are somewhere north of 800,000 sworn police officers in the United States, so roughly 6 out of 100,000 officers were killed. This ranks below loggers, aircraft pilots, oil/gas/mining derrick operators, roofers, garbage collectors, ironworkers, delivery drivers, and several others. And yet, despite the very small likelihood of an officer being killed while on duty, Justice Roberts opened up a round of questions recently by telling a lawyer that an officer merely approaching an unknown door is an incredibly dangerous activity. Until we are honest with ourselves about how deep the police culture runs in this country, and recognize that police are not universally heroes, prone to mistakes, and not in mortal danger at every second of their career, we won’t be able to actually confront the challenges that we face.

I am a well-off white male attorney. I am at the very bottom of people regarding who as at risk in a police encounter, and yet I am still afraid of police. I don’t like driving near them, I don’t like walking near them, I don’t like being in situations where they are involved. That is a problem. Police should be there to protect and to serve, but I feel neither served nor protected by their actions. A year ago, I said this needed to stop. Before George Floyed was murdered, I said this needed to stop. It still needs to stop. Stop killing people. Just Stop. Black Lives Matter.

***

This is an incomplete thought, but, as this website was built to yell incomplete thoughts into the void, here goes:

In just the past few weeks, since the country has been shut down by shelter in place orders, we have seen at least five incidents go viral involving police use of force against minority subjects. At what point do we say that it is enough?

On April 14, Steven Taylor was in a San Leandro Walmart. Steven Taylor had previously struggled with paranoid schizophrenia and bipolar depression. He was “wielding” an aluminum bat and was refusing officer’s commands to drop it. Officers both had their Tazers out, and he was shot with the tazer first and then shot with a real gun. He died.

On April 27, an LAPD officer punched a detained, unarmed man, multiple times. The video shows the man did not fight back and the officer clearly was the aggressor.

On April 28, a Rancho Cordova police officer detained a juvenile individual for allegedly participating in the sale of alcohol. The individual was young, said he was 18, and was detained. While on the ground, the officer shoved the child’s face into the rocky ground and attempted to strike him multiple times.

On May 3, officers, allegedly enforcing social distancing protocols, approached two individuals who security video shows were minding their own business outside of a store. They detained both individuals, being rough with them both. Then, a bystander, who was watching the police, was approached by one of the officers with his taser drawn, and, while swearing, tells the bystander to move back, then tackles him to the ground, repeatedly hitting him.

On May 6, former DA investigator and police officer Gregory McMichael and his son Travis follow Mr. Arbery and end up shooting him after cutting him off.

Five incidents in fewer weeks than that. Two deaths, and five other individuals assaulted by officers. And these are only the cases that have gone viral. These are only the cases that are caught on camera. Every day, as a public defender, I see bodycam/dashcam/security footage video of officers using force against suspects. Sometimes the suspects are seen committing crimes, sometimes they are merely suspects, and sometimes they respond with violence towards the officers. But often they do not. Often the entire confrontations are initiated, escalated, and ended by officers. And most of the time, the officers use of force does not come under investigation. Their use of force is incidental to whatever the individual gets charged with, so it is not subject to a suppression hearing, it does not negate any crime they may have committed, and sometimes there is no injury, or at least no injury great enough to justify a civil suit or a 1983 action. There is no recourse, and everyone goes about their day, the victim instilled with further dislike of the police and the police instilled with the belief that their actions are beyond reproach .

In Sacramento, officers going through the academy would start their Use of Force training with a montage of officer funerals over the speech from Any Given Sunday, wherein the coach refers to the other team as “the enemy” and urges them to be aggressive. As the DOJ concluded in their 2019 report into the Sacramento Police Department: “Simply put, in the first exposure recruits have to use of force principles, SPD appeared to characterize officers’ worlds as one in which they face constant war--one in which they either win or die. No matter how much subsequent tactical communication, de-escalation, and principles of the sanctity of life may be mentioned in the remainder of the academy, SPD’s introductory message to recruits was that they must be warriors, prepared to fight the community at any moment.”

I don’t have a solution for this. If I did, I would be trying to fix it. I know it starts with better initial training, more community engagement, implicit bias training, better recruitment, stronger restrictions on use of force, and harsher sanctions for violating use of force policies. But mostly, we will have to change the culture of a country that has always viewed law enforcement (from wild west shootouts, to J. Edgar Hoover, to the Texas Rangers, to Training Day) as gritty heroic gunslingers who lay down the law. We honor our first responders and officers at every turn, and vilify those who speak against them.

I almost don’t want to include this, because I don’t believe it is relevant, and I believe it is used as a defense too often, but my job puts me in contact with many in law enforcement who are good, honest, kind, people. Officers who don’t want to use violence against others, who want to tell the truth, who legitimately want to help their community, so I know that those officers exist. However, it also puts me in contact with officers who jump to the use of force, who leave important details out of reports, who assume guilt, who blatantly lie, who profile/sterotype/etc.

Anyone who is called for jury duty and points this out is kicked by the prosecution, and sometimes by the judge “for cause”, for being unable to be fair, yet the dozens of potential jurors who are married to law enforcement officers or raised by law enforcement officers who “trust them” or “think they are trying to do their job in a tough environment” are left on.

I’ll leave you with this. Imagine being a young minority individual who is arrested for an assault. You had a fight with someone. They started it, but they also called the cops and they said you started it, and they came out on the worse side of it and there are no other witnesses. They are a young white professional and got their nose broken and you are now facing a Felony and a Strike offense. When the officers showed up, you hadn’t felt that you had done anything wrong, but get thrown against a fence and then shoved to the ground . . . maybe even punched yourself. In the commotion, the officer injures his knee and says that you hit him back. There is no bodycam, it was malfunctioning that day, and so you get charged with a felony assault on an officer. It is the officer’s word against yours. You couldn’t make bail, so, although you’re wearing civilian clothes, you are sitting at counsel table and the judge has told the jury you are in custody and the officer walks in in a freshly pressed uniform. The victim walks in in a suit and tie, maybe with a victim advocate in tow. You see any person who claims that there are racial disparities in the criminal justice system (a fact backed up by more studies than I could even mention) or who proclaims a distrust of police gets kicked off the jury, while those who proclaim a love of police may be kicked, but the defense only has 10 peremptory challenges to use. Now, put yourself in that situation, a not uncommon one, and ask yourself if you’d trust the system. Ask yourself if you’d believe that justice is being done.

Courts get their legitimacy from the consent of the governed. When courts aren’t seen as legitimate arbiters of justice, they slowly lose their efficacy in providing deterrence, structure, and punishment.

*******

I wrote the above before officers in Minneapolis kneeled on the neck of George Floyd for 5+ minutes, depriving him of oxygen, and murdering him.

I wrote the above before a woman in central park used 911 and a “hysterical voice” to sic the police on an African American man.

I wrote the above before the police shot tear gas into demonstrators protesting the killing of George Floyd, but sat by and watched as armed white protesters invaded government buildings to reopens hair salons and restaurants. I continue to be horrified by the racism, both overt and covert, that is on display in this country.

We need structural change in our institutions and we need it now.

We need people to speak out against hate and racism and we need it now.

We need change. We need big radical, structural, monumental change in the way we police, prosecute, and dispense justice.

Steven Taylor - San Leandro, CA - April 14

https://twitter.com/i/status/1251679673785839616

LAPD - Los Angeles, CA - April 27

https://ktla.com/news/local-news/video-shows-lapd-officer-striking-man-repeatedly-in-boyle-heights-prompts-investigation/

Rancho Cordova Juvenile - Rancho Cordova, CA - April 28

https://twitter.com/juliancastro/status/1255251138401665024?s=21

NYPD Social Distancing - New York City, NY - May 3

https://youtu.be/oSkHkOewR3s

Ahmaud Arbery - Brunswick, GA - May 6

https://www.youtube.com/watch?v=TFmsdAtOaC4

George Floyd - Minneapolis, MN - May 25

https://youtu.be/ZWzkgKPZWcw

Christian Cooper - New York City, NY - May 25

https://www.nytimes.com/video/us/100000007159234/amy-cooper-dog-central-park-police-video.html