There are so many tragic aspects of police brutality that it is easy to lose sight of positive developments. But there are victories and accomplishments to celebrate! Despite setbacks, in just a few years the situation regarding police brutality has improved significantly in the following important areas (click on the hyperlink to go directly to that section):
- Media Exposure. Never has there been so much media attention on, and public exposure to, the problem of police brutality. Beginning at least with the police shooting of Michael Brown, the media has devoted unprecedented attention to police brutality cases. Across the country, this has included intensive media attention on the police killings of Eric Garner, Oscar Grant, Kelly Thomas and Ezell Ford, and the police beating of Marlene Pinncok, to name just a few. Beyond individual cases, the media also has begun to scrutinize big-picture policing and accountability issues. These in-depth investigative pieces have focused on, and increased public awareness of, the following topics among others:
- Police shootings in Los Angeles and the lack of criminal prosecutions (KPCC's Officer Involved: A KPCC Investigation into Police Shootings in Los Angeles County)
- Excessive force regarding tasers by the Border Patrol and the LAPD (LA Times' Special Report How tasers became instruments of excessive force for the Border Patrol and LA Times' One of the LAPD's preferred weapons to help officers avoid shootings often doesn't work)
- Sexual assault by police officers (AP's Hundreds of officers lose licenses over sex misconduct and HuffPost Live Investigation Uncovers Police Sexual Misconduct)
- Disproportionate impact of police shootings on people suffering from mental illness (Washington Post's Distraught People Deadly Results)
- Citizen Groups and Politicians. It is not just journalists who have tackled the problem of police brutality. Grassroots groups like Black Lives Matter, the October 22nd Coalition and the Stolen Lives Project have been instrumental in keeping the issues of police brutality and systemic injustice at the front and center of the national discourse. Even presidential candidates have helped with public awareness of police brutality, by discussing police shootings and inequities in the criminal justice system. President Obama contributed by convening the President's Task Force on 21st Century Policing.
PROGRESSIVE JUDICIAL OPINIONS
- Legal Interpretations. Where would we be without progressive judges and legal interpretations that expand the ways victims can access justice for wrongs perpetrated against them? For sure we would be much farther behind! Though not all recent opinions have been favorable for police brutality victims, there are many progressive judicial opinions and legal advancements to be celebrated when it comes to the fight against police brutality:
- Over the past several years, the Ninth Circuit has rendered important opinions in the area of (1) survival damages in Section 1983 cases (Chaudhry v. City of Los Angeles, 751 F. 3d 1096 (9th Cir. 2014)); (2) provocation theory of Section 1983 liability (Mendez v. County of Los Angeles, Nos. 13-56686 and 13-57072 (9th Cir. filed March 2, 2016)); (3) ability to sue high level police officials in their personal capacities under Section 1983 for injustices that happen on their watch (Starr v. Baca, 652 F. 3d 1202 (9th Cir. 2011)); (4) greater opportunity for families of deceased victims to challenge the "police officer's story" by surviving summary judgment in cases of "we said, he's dead" (Cruz v. City of Anaheim, 765 F. 3d 1076 (9th Cir. 2014); Newmaker v. City of Fortuna, No. 14-15098 (9th Cir. filed Nov. 22, 2016)); (6) evolving Section 1983 jurisprudence that takes into consideration an officer's immediate escalation to use deadly force as a factor in finding a Fourth Amendment violation under Graham v. Connor analysis (A.K.H. v. City of Tustin, No. 14-55184 (9th Cir. filed Sept. 16, 2016)); and (7) the ability of people who were wrongly convicted as a result of police corruption to get justice in the form of monetary compensation (Carrillo v. Cty of Los Angeles et al., Nos. 12-57229 and 13-56817 (9th Cir, filed August 25, 2015).
- On the State Court Level, the California Supreme Court issued an important opinion regarding evaluation of preshooting negligence in police shooting cases (Hayes v. County of San Diego, 305 P. 3d 252 (2013)).
- On the National Front, in 2012, the United States Department of Justice Civil Rights Division provided guidance in the area of filming police brutality. The DOJ clarified that filming police officers in public in connection with the performance of their duties is lawful and protected by the First Amendment, and that police seizure and destruction of such footage without a warrant violates the Fourth and Fourteenth Amendments. In 2015, the Los Angeles Sheriff's Department apparently took heed of the constitution and settled a lawsuit involving photographing brutality. The LASD acknowledged that members of the public have the right to film officers engaged in the public discharge of their duties and also agreed to train deputies about constitutional rights in regards to filming police and not being hassled for it.
- Body Cameras, Personnel Files and Police Shooting Statistics. Now that the public is getting a more accurate picture of what is really going on with policing, the public is calling for increased transparency to lead to additional accountability. Citizens are no longer content to allow police agencies to police themselves and this increased transparency is another positive development in the fight against police brutality.
- One way the public would like to play a role in "guarding the guardians" is by being able to review footage on police officer body cameras and dash cam videos. When it comes to police-controlled footage the issue is simple -- the one who controls the footage is the one who controls the narrative and if police control the video then what good is it really as an accountability measure? In our work as civil rights lawyers we have seen all kinds of suspicious situations when it comes to police-controlled footage. For example, sometimes a key portion of a video will mysteriously "disappear" or "get erased" without anyone knowing how or why. In other cases, officers will claim their dash cam videos "malfunctioned" at a critical moment or perhaps were turned off and the officers do "not recall" why.
- As anyone who has tried to get a hold of police officer personnel files knows, it is very difficult to do. In California, police officer personnel files and internal affairs reports are privileged and kept under wraps. Even lawyers litigating court cases involving officers who have shot and killed people can only get such files after a legal fight and only then in a manner which requires they be kept confidential. But recently efforts by media and others have helped the cause of justice by filing court cases to dismantle some of these walls of secrecy so that the public can generally get access to the names of officers who have been involved in shootings. A federal judge also recently refused to keep "under seal" a video of a fatal officer-involved shooting that the agency desperately wanted buried for all time and another court mandated that the investigative file in yet another deadly police shooting be disclosed to the public.
- Another critical piece of increased transparency comes in the form of accurate statistics on officer involved shootings. We simply cannot address a problem when we are kept in the dark as to the true scope of that problem. Historically, this data has not been collected in any systematic way. Individual agencies could voluntarily report to the FBI, which resulted in spotty and unreliable data. Now state and federal initiatives are underway that should give us better statistical information, including the Death in Custody Reporting Act of 2013 at the federal level, which mandates that states receiving grants report all deaths occurring in custody and California's new Open Justice website, which provides information on officer-involved shootings and other in-custody deaths. In addition to official government data collection efforts, newspapers like The Guardian and The Washington Post and websites like killedbypolice.net compile information about police shootings.
- Criminal Accountability. When police officers shoot or otherwise brutalize victims in a manner that constitutes a crime, those officers must be help accountable like anyone else. This means they must be tried in a criminal court and, if found guilty, serve appropriate sentences in jail or prison. But the problem is that prosecutors are very reticent to criminally punish police officers. This is a huge problem -- because it leads to a "culture of impunity" -- where officers think they can do whatever they want and they will never be help accountable. However, in the past year, thanks to the national media spotlight shining on police brutality, there has been a slight shift towards holding police officers accountable in a criminal context. One example of the shift towards increased criminal accountability is that Chief Charlie Beck made the unprecedented move of recommending that criminal charges be filed against an LAPD officer who fatally shot an unarmed homeless man in Venice Beach.
- LASD Criminal Enterprise. While the LAPD appears to be doing its part by once or occasionally recommending that criminal changes be filed against officers who break laws, a more systematic effort to root out police corruption and brutality is being done by the US Justice Department when it comes to the Los Angeles County Sheriff's Department. The USDOJ has conducting an extensive investigation into the sordid and brutal world of Men's Central Jail -- which for years was full of guard gangs, beat downs of inmates by guards, staged fights among inmates, lack of mental health treatment and facilities, and all around unsafe, deplorable and inhumane conditions. But as a result of the USDOJ's efforts, nearly 20 LASD deputies were arrested and charged with various crimes. Sheriff Lee Baca, the top LASD brass, was convicted of lying to federal investigators in connection with the scandal. And the indictments did not stop there. Paul Tanaka, Baca's number two in charge and the brass responsible for overseeing the jails, also was convicted of conspiracy to obstruct justice and was sentenced to five years in federal prison.
- Impact on Rule of Law. High profile convictions -- and in fact any convictions -- of police officers who break the law and hurt and kill people are critical to bring legitimacy to the "rule of law" that governs our justice system and mandates that all people must be treated equally before the law.
EVOLVING POLICING MINDSET
- Move to Internalize Reverence for Human Life. A move towards internalizing and implementing a reverence for human life mindset is clearly one of the most important positive developments that has occurred in the fight against police brutality. This is because perhaps the most critical element in creating true change in an institution like policing is the element of humanity that -- when it exists -- can fundamentally alter the way any police encounter occurs. Humanity, empathy and compassion cannot be wrangled by laws and external measures, but any and all such measures can move things in the right direction. At the end of the day, if we change our moral compass in terms of how we view each other and how we view our roles in society, we will see much less power abuse in policing. We will see more lives saved instead of taken, more hope instead of despair, more community trust instead of community suspicion. Towards this end, we should give kudos to the following kinds of police initiatives:
- Los Angeles Police Department's "Preservation of Life" Award.
- Los Angeles Police Department's holistic moves to adopt and internalize de-escalation principles when it comes to use of force.
- Los Angeles Police Commission's directive for officers to use empathy and compassion in interactions with homeless people.
- Any genuine efforts to move towards community policing -- where officers come to know personally the individuals they "protect and serve" in the communities they police, and through those personal relationships become invested in the potential and well-being of those individuals.
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