Ticketed Motorist Pointing Finger Just The Green Light Cop Needed (The Onion)
Recalling the provocation that came midway through a routine traffic stop, Danville police officer Dylan Hayden told reporters Thursday that driver Donald Watkins’ decision to frustratedly point his finger at him was just the green light he needed. “Legally, I’m not allowed to touch the motorist after pulling him over, but when he extended his index finger directly toward me, I knew that gave me the go-ahead right there to take whatever action I deemed necessary,” said Hayden, adding that as soon as he noticed the conceivably threatening hand gesture, he had full authority to skip right ahead to exerting force. “Frankly, I probably would’ve had the okay to rock and roll after he cursed under his breath, but I wanted to be absolutely certain that I was in the clear. Once he pointed his finger at my chest from inside his vehicle, I knew I’d be covered no matter what happened next. He really left the door wide open for me with that one.” Hayden expressed confidence that there was probably someone wanted for robbery who looks similar enough to Watkins to legally justify pulling him over in the first place.
To Make Police Accountable, End Qualified Immunity
In their preference for a policy that protects police, conservatives abandon their commitment to textualism and embrace pro-government judicial activism.
If you haven’t watched the video of (former) Minneapolis police officer Derek Chauvin killing George Floyd by jamming his knee into Floyd’s cervical spine for nearly nine minutes until he loses consciousness, you really should. And if you can’t understand why large swaths of urban America have been in flames these last few nights, do two more things: (1) instead of George Floyd, who you probably don’t know, imagine the person pinned under Chauvin’s knee—prone, handcuffed, unresisting, and begging for mercy—was someone you love; and (2) listen to conservative pundits dissecting Chauvin’s merciless assault on Floyd with all the sangfroid of a referee performing an instant replay review to see whether the runner’s knee was down when the ball came loose. No wonder it seems as though the country is coming apart at the seams.
In determining the relationship between government and governed, one of the most important decisions a society can make is how accountable those who wield official power must be to those against whom that power is wielded. Congress made a clear choice in that regard when it passed the Enforcement Act of 1871, which we now call “Section 1983” after its location in the U.S. Code. Simply put, Section 1983 creates a standard of strict liability by providing that state actors “shall be liable to the party injured” for “the deprivation of any rights.” Thus, if a police officer walks up to your house and peeks inside one of your windows without a warrant—a clear violation of your Fourth Amendment right against unreasonable searches—he is liable to you for the violation of that right.
But many conservatives do an odd thing: In their preference for a more forgiving policy that gives police and other government officials substantial leeway in the exercise of discretion, they abandon their stated commitment to textualism and embrace an “interpretation” of Section 1983 that is utterly divorced from its text. The vehicle for this conservative brand of what we might call “living statutory interpretivism” is the Supreme Court’s qualified immunity doctrine, which judicially amends Section 1983 to provide that the standard for liability will no longer be the deprivation of “any rights”—as Congress expressly provided—but rather the deprivation of any “clearly established” rights.
As documented in considerable detail on Cato’s Unlawful Shield website, those two words—“clearly established”—do an extraordinary amount of work in keeping meritorious cases out of court and ensuring that plaintiffs whose rights have been violated by police or other state actors will receive no recovery unless they can find a pre-existing case in the jurisdiction with nearly identical facts. But that is plainly not the statute that Congress wrote, nor is it the standard of accountability that Congress chose. Moreover, as Professor Will Baude demonstrates in his masterful article, “Is Qualified Immunity Unlawful?,” there is no credible textual or historical basis for the qualified immunity doctrine; it is a blatant act of pro-government judicial policymaking—activism, if you will—and nothing more.
So now back to the killing of George Floyd. Watching that horrific video, one cannot help but notice the look of utter complacency on the face of Derek Chauvin as he drives his knee into Floyd’s neck. There is no life-or-death struggle—indeed, no struggle at all; nor is there any evident anger or passion—there is simply the banality of a man wearing a badge, surrounded and supported by other men with badges, methodically squeezing the life out of another human being.
It is well known that prosecutors rarely bring criminal charges against police officers, and indeed it seems unlikely Chauvin would have been charged had his assault on George Floyd not been captured on a viral video. That means the only avenue of accountability for most victims of police misconduct is a civil rights lawsuit that they themselves can initiate without the largesse of some prosecutor or citizen review board. But the Supreme Court has largely gutted that remedy with a judicially confected gloss that transforms the legislatively chosen policy of strict liability into one of near-zero accountability.
Cities are burning, and many people are venting their rage—yet again—about how cavalier police have become with the use of force, including lethal force, against the very citizens they are sworn to protect. Those people are right to be angry, and they’d probably be even angrier if they understood that it was never supposed to be like this—that Congress specifically chose a system of robust government accountability that was repudiated and perverted by the Supreme Court.
This Monday we will find out whether the Court will take the unprecedented opportunity it now has to revisit qualified immunity. It will be particularly interesting to see which self-styled conservatives—on and off the Court—place their stated commitment to textualism and judicial deference above whatever personal preference they may have for continuing our half-century experiment in near-zero accountability for law enforcement.
No More Money for the Police
Redirect it to emergency response programs that don’t kill black people.
The only way we’re going to stop these endless cycles of police violence is by creating alternatives to policing. Because even in a pandemic where black people have been disproportionately killed by the coronavirus, the police are still murdering us.
On Monday, a worker at a store in Minneapolis called 911, claiming that George Floyd had used counterfeit money. The incident ended with a police officer suffocating Mr. Floyd to death, despite his and bystanders’ pleas for mercy. Protests have since erupted across the country while the police respond with military-style violence.
As the case of George Floyd makes clear, calling 911 for even the slightest thing can be a death sentence for black people. For many marginalized communities, 911 is not a viable option because the police often make crises worse. These same communities, who often need emergency services the most, are forced to make do without the help.
More training or diversity among police officers won’t end police brutality, nor will firing and charging individual officers. Look at the Minneapolis Police Department, which is held up as a model of progressive police reform. The department offers procedural justice as well as trainings for implicit bias, mindfulness and de-escalation. It embraces community policing and officer diversity, bans “warrior style” policing, uses body cameras, implemented an early intervention system to identify problematic officers, receives training around mental health crisis intervention, and practices “reconciliation” efforts in communities of color.
George Floyd was still murdered. The focus on training, diversity and technology like body cameras shifts focus away from the root cause of police violence and instead gives the police more power and resources. The problem is that the entire criminal justice system gives police officers the power and opportunity to systematically harass and kill with impunity.
The solution to ending police violence and cultivating a safer country lies in reducing the power of the police and their contact with the public. We can do that by reinvesting the $100 billion spent on policing nationwide in alternative emergency response programs, as protesters in Minneapolis have called for. City, state and federal grants can also fund these programs.
Municipalities can begin by changing policies or statutes so police officers never respond to certain kinds of emergencies, including ones that involve substance abuse, domestic violence, homelessness or mental health. Instead, health care workers or emergency response teams would handle these incidents. So if someone calls 911 to report a drug overdose, health care teams rush to the scene; the police wouldn’t get involved. If a person calls 911 to complain about people who are homeless, rapid response social workers would provide them with housing support and other resources. Conflict interrupters and restorative justice teams could mediate situations where no one’s safety is being threatened. Community organizers, rather than police officers, would help manage responses to the pandemic. Ideally, people would have the option to call a different number — say 727 — to access various trained response teams.
The good news is, this is already happening. Violence interruption programs exist throughout the country and they’re often led by people from the community who have experience navigating tricky situations. Some programs, like one in Washington, D.C., do not work with the police; its staff members rely instead on personal outreach and social connections for information about violence that they work to mediate and diffuse. We should invest in these programs, which operate on shoestring budgets, so they have their own dedicated dispatch centers outside of 911.
Dallas is pioneering a new approach where social workers are being dispatched to some 911 calls that involve mental health emergencies. The program has shown success, and many of the people receive care that they would never have gotten in jails or overcrowded hospitals.
In California, the Bay Area Transformative Justice Collective deals with child sexual abuse without the police. The collective develops pods — groups of people including survivors, bystanders or people who have harmed in the past — that each pod-member feels they can turn to for support when needed.
Here’s another idea: Imagine if the money used to pay the salaries of police officers who endlessly patrol public housing buildings and harass residents can be used to fund plans that residents design to keep themselves safe. The money could also pay the salaries of maintenance and custodial workers; fund community programs, employment and a universal basic income; or pay for upgrades to elevators and apartment units so residents are not stuck without gas during a pandemic, as some people in Brooklyn were. The Movement for Black Lives and other social movements call for this kind of redirection of funds.
We need to reimagine public safety in ways that shrink and eventually abolish police and prisons while prioritizing education, housing, economic security, mental health and alternatives to conflict and violence. People often question the practicality of any emergency response that excludes the police. We live in a violent society, but the police rarely guarantee safety. Now more than ever is the time to divest not only from police resources, but also the idea that the police keep us safe.