The Crime Report
June 8, 2020
In a report on police
use of force issued in 2018, the United States Commission on Civil
Rights recommended, “Officers should be trained on de-escalation tactics and
alternatives to use of force.”
The training should include “strategies to create time,
space, and distance, to reduce the likelihood that force will be necessary and
should occur in realistic conditions appropriate to the department’s location,”
the report said.
But the problem with policing today is not a lack of
training or inadequate training, or even the wrong training. It’s more
fundamental: what are the boundaries of policing, and how do we hold the police
accountable if they go beyond those boundaries?
Lawyers, litigators and the U.S. Supreme Court may hold the
key to those questions.
During the first half of the 20th Century, police throughout
America have ignored constitutional guarantees against unreasonable arrests and
searches and the use of the “third-degree” when questioning suspects, wrote
Lewis R. Katz in the Case Western University School of Law
Faculty Journal.
Katz explained the “third-degree” using court records of a
1936 Mississippi case.
A black man was accused of killing a white man. A deputy
sheriff, accompanied by others, came to the home of the defendant. After he
denied the crime, “they seized him, and with the participation of the
deputy…hanged him by a rope to the limb of a tree; and having let him down,
they hung him again, and when he was let down the second time, and he still
protested his innocence, he was tied to a tree and whipped, and still declining
to accede to the demands that he confess, he was finally released . . .”
According to Katz, the deputy returned to the home of the
defendant a day later and arrested him.
The deputy again severely whipped the defendant, “declaring
that he would continue the whipping until he confessed, and the defendant then
agreed to confess.”
This type of conduct was commonplace. Local police officers
could literally beat a confession out of a suspect. In addition, the police
often ignored Fourth Amendment protections from unlawful search and seizure;
the Sixth Amendment right to counsel; and, of course, the Fifth Amendment right
to remain silent.
Then, in 1961, came Dollree Mapp. She was arrested in
Cleveland, Ohio, after the police searched her home without a warrant. She was
convicted, and her appeal made its way to the U.S. Supreme Court.
Through Mapp, the High Court created accountability for
local police misconduct. The exclusionary rule, having been used in federal
courts, would now apply to the states. If the police gathered evidence by
violating a suspect’s constitutional rights, that evidence would be excluded
from use at trial.
With a single swipe of the pen, the Supreme Court wiped out
years of over-zealous police conduct.
Policing and police training improved and the overall
conduct of police officers changed. In fact, in 2006, the late Supreme Court
Justice Antonin Scalia wrote that
the exclusionary rule was responsible for ‘‘wide-ranging reforms in the
education, training, and supervision of police officers.’’
He believed the decision in Mapp v. Ohio was so
successful that the country no longer needed the exclusionary rule.
The reason for the success of the Exclusionary Rule was
simple—accountability.
Once again, the U.S. Supreme Court is in a position to have
a profound and dramatic impact on policing by striking down qualified immunity.
The Supreme Court established qualified immunity as a judicial doctrine that
shields the police and other state officials from liability for misconduct. The
Court ruled a state actor would be immune from liability if, at the time of the
harm, the conduct “was not clearly established” as a civil rights violation.
This country’s primary federal civil rights statute can be
found in Title 42 of the U.S. Code. “Section 1983”—as it is commonly
called—provides that any police officer who violates a person’s constitutional
rights “shall be liable” to the party injured.
Demonstrating “clearly established” conduct has proven
difficult for plaintiffs. For a claimant to prevail in the face of a qualified
immunity defense, she would have to show that the harm inflicted was
established as a civil rights violation in a prior case with identical facts.
It is not unusual for a court to tell a plaintiff that her civil rights were
violated but that there is no similar case in point—so you lose.
The Supreme Court is currently considering, for formal
review, a number of cases that deal with qualified immunity.
Financial liability for wrongdoing is accountability. This
is where litigators and lawyers come in. If the Supreme Court scraps the
judicially-created protections for over-the-top, inappropriate and often
violent conduct by police, policing will improve.
Over the years, litigation has improved standards in the medical
profession. It has held tobacco companies accountable for killing people. It
has made automobiles safer. It has protected people from the harms of defective
products.
Policing the police is a by-product of the bright light of
an open courtroom, zealous litigants, and a citizen jury sifting through the
facts of a case and holding, when appropriate, bad actors accountable.
Matthew T. Mangino, a former district attorney in
Pennsylvania, is of counsel with Luxenberg, Garbett, Kelly & George P.C.
His weekly column on crime and punishment is syndicated by GateHouse Media. He
is the author of The Executioner’s Toll, 2010. You can reach him at www.mattmangino.com and follow him
on Twitter @MatthewTMangino
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