A parable

There once was an old man and an old woman. They lived in the midwest. They were conservative types, but not crazy. They weren’t particularly religious. They were white. Outside of work, they knew few black people. They had grown up believing the motto that the police were there “to protect and serve.”

One evening, they sat down in front of the TV to watch the news and eat their evening meal. On the TV, a news reporter spoke of a black man in Baltimore who died in police custody. His spine was nearly cut in two. The cops who made the arrest were all white.

The old woman turned to the old man, and asked: “What’s wrong with the police in this country?” The old man said he had no idea. He added, “If folks like us have lost confidence in the police, can you imagine what colored people (he slipped back in time and used a term common to his youth) must think?” The old woman nodded. After that, they were silent for the longest time.


20 responses

  1. Precisely right, Judge Kopf. I have tried making this point to a good friend of mine who is a police officer in my county. I told him that if someone like me, a middle aged, well-off white guy who has never had any trouble with the law (and who happens to be employed by a federal agency that has the name “Justice” in it) is losing faith in our system, then he should be very, very concerned. I’m sure it’s because I’m a lawyer, but I feel like the real problem in our country is the lack of accountability, the lack of consequences for bad actors in our law enforcement system. Virtually every killing is tragic, but I don’t expect our system to be able to prevent every bad cop from being in the system. What we need to strive for is something far more simple: If a black man in Baltimore (or Ferguson, or wherever) opens up the newspaper and reads about some cops who shot/beat/strangled/killed some guy on the street last night, he should think, well, if that cop screwed up, he’ll pay the price. He’ll be charged with a crime the same way any of us other citizens would be.

    Of course, that’s not the case now. Far too often, when cops screw up, there is a cover up, and prosecutors are loathe to go after a vital component of their team. I’m not talking about every shooting or injury — I actually think that the vast majority of killings by police are probably justified. The huge problem we have is that even with the ones that AREN’T justified, there are few consequences, and thus no justice. Like the old saying goes: if you want peace, work for justice.

  2. When you talk about whether the killing was “justified,” you’re missing the larger point. Justification in this context means falling within the ambit of the relevant use of force rules and within the broad scope allowed by the courts given Tennessee v. Garner and qualified immunity.

    The right question is whether the killing should have happened or whether there was a better way for the officer(s) to deal with the situation. When violent response is the first choice rather than the last, the police are doing it wrong, even if it’s lawful and justified.

    That’s why I made a point of writing about Officer Jesse Kidder – who chose not to shoot Michael Wilcox.

  3. Great way to frame the issue, Judge.

    I don’t think there’s much doubt that race is a factor in many police actions–the ones we read about, and the ones we don’t. Even black police officers react differently-and less well–in dealing with black civilians and suspects than with whites. But there’s something else that all too often evades comment: the assumption that police officers are entitled to use force in situations in which should be seen as bad practice or should even be prosecuted. The case in Pasco, Washington in which a disturbed Hispanic man was killed, allegedly for throwing rocks at cars at an intersection, comes to mind. Yes, he could have caused a serious, perhaps fatal accident, but the probability was not high. Was it justifiable, much less necessary, for him to be shot down? Or the Eric Garner case in New York. Leave out the chokehold that killed him–he could have been given a desk appearance ticket for selling untaxed cigarettes. Why did five officers insist on pushing him to the ground? And why didn’t they try to talk him down? (Part of that last may be due to poor training.) Too many police seem to think that they embody the law, not that they serve it.

  4. The point I was trying to make was that the officer should be required to prove to the jury that his actions were justified. Instead of the people (through juries) never having the opportunity to determine under what circumstances an officer’s shooting may be justified, as it is now, all too frequently, no real investigation takes place, and if one does, the next step of charging and trying the officer never occurs because prosecutors are so reluctant to do so. I’m not advocating overturning TN v. Garner, I’m simply saying that the people, and certainly not an officer’s colleagues who may be doing the investigating, should be the ones to determine whether a killing is justified. And of course if it is not, then the consequences for the officer would be the same as it would be for any citizen.

  5. The rules in my community are such that it is not permitted to ask if there was a better way to manage the situation and there is a city attorney present to make sure such questions are not answered.

  6. I’d like to add that a large number of white folks with mental illness and substance abuse problems are killed or injured by police in the U.S.

  7. There is a lack of accountability on the bench, a lack of it in Congress, a lack of it in the White House, a lack of it on Wall Street.

    Far too often, when judges screw up, there is a cover-up. When the White House screws up, there is a cover-up. When Wall Street or Big Oil screws up, they pay the fine and go on their merry way. But When Congress screws up ….

    Waitaminute! When doesn’t Congress screw up?

  8. Yup. It is good whites are starting to pay attention. Thank those brave people with cellphone cameras.

  9. Judge:
    A relatively recent phenomenon–the militarization of the police–seems to have contributed to this.

  10. It is unethical for the prosecutor to file a criminal charge if there is no reasonable probability of a conviction. The law in almost every state is that the State bears the burden of disproving justification (although the defendant bears the burden of introducing evidence to support the defense). For this reason, there are a lot of cases — not just law enforcement officers — in which prosecutors decline to file charges because there simply is not enough evidence to rebut a colorable claim of justification.

    I can’t see a circumstance in which any rational legislature would shift the burden of proving justification to law enforcement and only law enforcement (unless they really do not want people to join the police force). Unless the legislature is willing to provide a fund to cover the defense of every police officer in every case involving the use of force, even requiring the prosecutors to file charges in every case in which a potential criminal defendant asserts excessive force, I can’t see any way in which a rational legislature would prohibit the exercise of prosecutorial discretion.

  11. One of the things that has changed is that the drunks have guns and the police know that and act accordingly.

  12. I’m curious. Between the rash of stories like this and the Justice Department’s recent admission of a pattern of flawed testimony from FBI forensics, does Kopf still almost always believe cops?

  13. This is verifiably false. Police officers are not any more likely to be shot at in the course of the duties over the last thirty years.

  14. I looked up the statistics on officers killed in the line of duty and it appears the number of deaths per year has decreased but the number killed by being shot has stayed the about the same. I am not aware of any statistics on the number shot at while on duty.

  15. Pingback: Four Fires Burn In Baltimore | Simple Justice

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