Monday Morning Thoughts: Both Parties Fall Short on the Issue of Police Accountability

The recent incidents in South Carolina and Baltimore, on top of the incidents from last year in Ferguson and Staten Island, have led most people to believe we need to reform police oversight and accountability. However, those efforts are being undermined, not only in places where we might expect, but also in places where we would not expect.

While many on the left have been disappointed overall with the Obama Administration’s insistence on using drones to continue to fight wars in the Middle East, disturbed over domestic surveillance and other issues, they have been supportive of Eric Holder’s moves to reform the criminal justice system.

However, an article in the New York Times two weeks ago calls some of that into question, noting that “At Supreme Court, Eric Holder’s Justice Dept. Routinely Backs Officers’ Use of Force.”

The article noted the case out of San Francisco where Teresa Sheehan was in her apartment at a mental health center “clutching what her lawyers said was a small bread knife and demanding to be left alone. San Francisco police officers, responding to a call from a social worker, forced open the door, blinded her with pepper spray and shot her.”

Writes the New York Times, “It was the kind of violent police confrontation that Attorney General Eric H. Holder Jr. has frequently criticized in Cleveland; Albuquerque; Ferguson, Mo.; and beyond. But last month, when Ms. Sheehan’s civil rights lawsuit reached the Supreme Court, the Justice Department backed the police, saying that a lower court should have given more weight to the risks that the officers faced.”

In fact, “At the Supreme Court, where the limits of police power are established, Mr. Holder’s Justice Department has supported police officers every time an excessive-force case has made its way to arguments. Even as it has opened more than 20 civil rights investigations into local law enforcement practices, the Justice Department has staked out positions that make it harder for people to sue the police and that give officers more discretion about when to fire their guns.”

Civil rights lawyers are angry, believing “the government can have a far greater effect on policing by interpreting law at the Supreme Court than through investigations of individual departments.”

Meanwhile, conservative New York Times columnist Ross Douthat this weekend noted that for decades conservatives have argued that “public sector unions do not serve the common good.” But, he argued, “this argument also applies to a unionized public work force that conservatives are often loath to criticize: the police.”

While there are conservative critics of police unions, Mr. Douthat argues, “thanks to a mix of cultural affinity, conservative support for law-and-order policies and police union support for Republican politicians, there hasn’t been a strong right-of-center constituency for taking on their privileges. Instead, many Republican governors have deliberately exempted police unions from collective-bargaining reforms — and one who didn’t, John Kasich of Ohio, saw those reforms defeated.”

He argues that this has “left those unions in a politically enviable position, insulated from any real pressure to reform. Yet reform is what they need.”

He compares police officers to teachers, arguing, “Both belong to professions filled with heroic and dedicated public servants, and both enjoy deep reservoirs of public sympathy as a result. But in both professions, unions have consistently exploited that sympathy to protect failed policies and incompetent personnel.”

However, even the worst teacher, he argues, has diffuse effect across many years and students, and “it’s hard for just one teacher to do that much damage to any given student. A bad cop, on the other hand, can leave his victim dead or permanently damaged, and under the right circumstances one cop’s bad call — or a group of cops’ habitual thuggishness — can be the spark that leaves a city like Baltimore in flames.”

With the death of Freddie Gray, he argues that “no issue looms larger than the need to discipline, suspend and fire police officers who don’t belong on the streets — and the obstacles their unions put up to that all-too-necessary process.”

The Sacramento Bee editorial this week argues “Police need to get tough enough for transparency.” They note that “as faith in law enforcement has been undermined by a seemingly endless string of police abuses, one reform has come up repeatedly.” That is the body camera.

“That’s good,” they say. “There’s nothing like an electronic witness to keep cops and civilians alike on the straight and narrow.”

They continue, “But the body cams now being shipped to departments across the country also come with major side issues, from data security to the ethics of mass surveillance. Right now, departments are handling these issues piecemeal, but state lawmakers have introduced a package of bills to impose some uniform rules across the state.”

While those issues are being worked out, however, “law enforcement lobbyists threw the first serious attempt at a statewide body-cam policy into a legislative chokehold last week. “

The Bee writes: “In terms of sheer, brute force – and emotional weakness – the spectacle that accompanied Assembly Bill 66 on Thursday at the Assembly Privacy and Consumer Protection Committee was not a good sign. If police and sheriffs’ deputies can’t be made to realize how furious the public has become, and how crucial it is that they overcome their kneejerk fear of independent oversight, the millions of dollars being spent on this new technology will do zero to restore public trust.”

AB 66 attempts to prevent officers from studying the body-cam footage before putting their initial report on the record.

This is very important as Chauncee Smith, a Racial Justice Advocate for the ACLU of California, told the Vanguard earlier this year. The officer’s initial statement should be made prior to them viewing the video to “get their natural perception of the incident in question if there’s evidence of a crime.” The fear is that, by allowing the officer to view the video in advance, they can tailor their explanation to the video.

As we saw in the death of Walter Scott, a key finding was that the officer involved was simply not truthful in what happened. Had he viewed the video in advance, he might have been able to forge a story more consistent with video evidence.

As Mr. Smith pointed out to the Vanguard, the subject of the law enforcement charges does not get to view the video prior to making their initial statement. Instead, the subject’s statement is compared to the video evidence to evaluate the truthfulness.

As the Bee points out, “Lethal-force cases often hinge legally on the perceptions of officers in the moment that they pull the trigger. Civil liberties groups argue that access to potential evidence against them might taint officers’ memories or tempt them to tailor their reports.”

The Bee writes, “The Oakland Police Department follows this policy with its body cams, and officials there testified that it has been successful. But the notion of questioning an officer’s word unleashed blowback from law enforcement lobbyists.

“Such a policy, they insisted, would open the door to inaccuracies that defense lawyers would tear apart in court to make good cops look bad. Lethal-force cases, they pointed out, also usually stem from chaotic events that are hard to recall accurately because they unfold in a rush.”

The Bee, as usual, argues for a middle ground – LA’s new police policy that allows the officers to view the footage only with the authorization of the supervisor. However, “law enforcement lobbyists and their friends on the committee refused to compromise.”

The Bee concludes, “Meanwhile, law enforcement needs to understand that these demands for oversight aren’t some passing fancy. America’s worst fears about bad cops have been borne out on video from Los Angeles to South Carolina. It’s a new world, one in which everyone is watching – and wondering whether the police will ever become tough enough for transparency.”

It is important to understand that police oversight is not a partisan issue. As the Bee notes, “Assemblyman Jim Cooper, D-Elk Grove, in particular, appeared to have decided that he’d been sent to the Capitol to represent, not the public, but his old work pals back at the Sacramento County Sheriff’s Department. Memo to Cooper: The deputies already have lobbyists. Lawmakers are supposed to look out for the whole state.”

So we see clearly that there are key barriers to reform. First, we have the Obama administration, which has been outspoken on these incidents, but unwilling to fight for police accountability at the court level where it might make a bigger difference.

Second, we have the police unions who have become barriers to accountability and oversight.

Finally, we have the police lobby in Sacramento which has allies on both sides of the aisle.

In order to get reform, all of these barriers need to change – and we need to recognize that both parties and both sides of the aisle play a role here.

—David M. Greenwald reporting

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