Black Lives Matter

Black lives matter. Absolutely. People of color are disproportionately represented at all phases of the criminal justice system: interactions with law enforcement, arrests, jail, prison, probation and parole. Recognizing that truth ought to lead us to make changes that will result in fair, proportional treatment.

We’ve known that truth for decades and yet here we are, mourning another death of another black man at the hands of police.

So why have we not seen reforms?

The simplistic response is to blame racism but racism alone doesn’t make it possible for cops to kill a man in broad daylight, with the death recorded and seen around the world, and not face consequences. 

Racism with power is the explanation.

Without the power to act with impunity, law enforcement officers would be much less likely to treat people with such aggression and hostility. The racists we encounter in our daily lives--neighbors, co-workers, family--are extremely unlikely to kill someone just because of skin color. Racism can show itself in other damaging ways but most racists cannot kill without being held accountable.

Law enforcement officers can. What gives them that power? The doctrine of qualified immunity, for one.

An article in The Appeal explains:

That doctrine has become one of the chief ways in which law enforcement avoids accountability for misconduct and…even proven constitutional violations. Ordinary people—whether they’re doctors, lawyers, or construction workers—are expected to follow the law. If they violate someone else’s legal rights, they can be sued and required to pay for the injuries they’ve caused.

Under the doctrine of qualified immunity, public officials are held to a much lower standard. They can be held accountable only insofar as they violate rights that are “clearly established” in light of existing case law. This standard shields law enforcement, in particular, from innumerable constitutional violations each year.

Qualified immunity permits law enforcement and other government officials to violate people’s constitutional rights with virtual impunity. Today, we hear about police shooting after police shooting where officers are rarely if ever held accountable by the criminal legal system, either because prosecutors decline to charge, because grand juries decline to indict, or because juries decline to convict.

In Minneapolis, the four police officers involved in George Floyd's death were all fired the same day Floyd was killed. At first glance, that looks like progress...a police department that has had enough of overly aggressive cops.

History, though, shows us that firing bad cops is not a sure thing.

In Omaha NE, June 2017, Zachary BearHeels, in the midst of a mental health crisis, was tasered a dozen times by one of the police officers who were called to help him. Another officer punched BearHeels 13 times in 15 seconds. Bearheels died after those assaults. 

There was video, and Omaha Police Chief Todd Schmaderer fired the four cops involved in BearHeels' death. The city breathed a sigh of relief and gratitude that Schmaderer saw things clearly.

Three years later? Three of those cops are back on the force, thanks to efforts by the Omaha Police Officers’ Association, the police union. The Omaha World-Herald reports,

All three will receive back pay since they were fired, minus any income they may have earned in that time, in den Bosch said. Those amounts have not been calculated yet. McClarty’s payment will have 20 days — the length of the suspension period imposed by the arbitrators — taken out of his back pay.

In a statement, Schmaderer said it is time to move forward.

“Omaha police officers have a very difficult job and my focus is on keeping my officers safe in the coronavirus environment while simultaneously protecting the city,” he said.

Tony Conner, the president of the police union, said the process was fair and that “every American citizen has the right to due process, including any police officer.”

In addition to qualified immunity, law enforcement officers have powerful unions to protect their jobs. In a USA Today opinion piece, former union official Benjamin Sachs explains:

Among the many outrages in the death of George Floyd is this one: Derek Chauvin, the police officer who killed Floyd, had been the subject of at least 17 misconduct complaints and yet he remained an armed member of the Minneapolis Police Department. How does that happen? Part of the answer is the collective bargaining agreement reached between the police department and Chauvin’s union.

Like other such police agreements, the one in Minneapolis gives cops extraordinary protection from discipline for violent conduct. It mandates a 48-hour waiting period before any officer accused of such conduct can be interviewed, a common delay and a luxury not afforded even to criminal suspects and one that allows officers time to develop a strategy to avoid accountability.

Like many police contracts, including those in Baltimore, Chicago and Washington, D.C., the Minneapolis agreement also requires the expungement of police disciplinary records after a certain amount of time.

When people call for an end to police unions or a limit to their bargaining power, this is why.

There are other elements that lead to overly aggressive and violent policing, including the militarization of America's police as detailed in the Radley Balko book, The Rise of the Warrior Cop. Look at the armored vehicles used against protesters in the current demonstrations and riots across the country. Look at the riot gear. Look at how those military tools are used against young protesters.

Something is wrong with policing in this country. Police assume a warrior attitude of cops vs citizen, even though they are sworn to protect and serve the community.

Until we make changes that will hold law enforcement officers accountable to their communities, the vulnerable in our communities will pay for our lack of will to push for change.

The cry to "defund the police" is one that puzzles some people--generally people who work from the assumption that the cops are here to deal with criminals for us. Defunding police departments--or reducing the law enforcement budget--would  force those departments to rework their priorities. Can they do more with less? Can they do without spending money on ever more advanced riot gear? Can they operate without flashy surveillance equipment? 

The combination of over-criminalization and over-policing is not found in every neighborhood. Some of us live where police officers come to the block party carrying beer. Others live where cops cruise the neighborhood waiting to arrest someone. Big difference.

Until people can see that some communities suffer from over-policing, they will continue to think that those communities have more criminals and that's why so many of those families have a loved one who is incarcerated. 

And that is where racism shows up: the willingness to believe that people of that race or that neighborhood are inherently worse than we are. 

When the power of the state is brought to bear against an individual like George Floyd, a list of people convicted of a certain category of crime, a neighborhood or a demonstration, we had better make sure that we have a way to fight that power. When the state puts policies in place that prevent us from holding the state--law enforcement--responsible for its crimes and misdeeds, the power of the state is magnified. Magnified power is hard to destroy.

We must demand change to reduce that power.

Yes. Black lives matter. They matter enough this time to cause riots. Are we listening? Are we watching? Are we demanding changes that will decrease the power of law enforcement?