A Suggestion for Policing the Police

This is the fourth piece in a series. It offers a suggestion for holding police accountable for bad acts, as the current system we have does not seem to work.

My Previous Reporting and the Current Situation

Right now, the nation is reeling and angry after witnessing the death of George Floyd of Minneapolis. Four police officers involved in that arrest have been charged with crimes. This was the series that I had before the current one.

In that reporting:

  • I have already explored the available video evidence, including the initial 911 call here. Significantly, drug use seems to be the motivating factor, despite the arrest for passing a counterfeit bill.
  • I have already explored the problems with the prosecution of Derek Chauvin for manslaughter and third-degree (no second degree) murder here. Significantly, the Minneapolis Police Department Use of Force guidelines explicitly authorize an officer’s knee to be placed on the neck of an arrestee like George Floyd.
  • I have already explored the extreme danger of Excited Delirium (EXD), which was explicitly mentioned by the officers while restraining George Floyd, here. Significantly, what it shows is that the extreme restraint of George Floyd might have been the best the officers knew what to do in order to save George Floyd from death until the ambulance arrived.
  • I have already explored the fact that there is no physical evidence that the restraint of the police, including the knee on George Floyd’s neck, was the real cause of George Floyd’s death here. Significantly, the second autopsy cited “video evidence” but not medical evidence.
  • I have already explored the fact that the medical examiner issued a press release that Fentanyl and Meth were in George Floyd’s system at the time of his death here. Significantly, this corresponds the the observations made by bystanders, the call of the ambulance before Floyd was being restrained, and the officer’s efforts to control George Floyd that seemed excessive without context.
  • I have already explored the problems with the prosecution of the other three officers for “aiding and abetting” the murder of George Floyd by Derek Chauvin here. Significantly, there is no physical evidence that the only contact of Derek Chauvin (his knee) killed George Floyd, there are no other allegations of a murderous act, and the only actions of the other officers are checking Floyd’s pulse, suggesting alternative actions, and keeping away an aggressive crowd, none of which “aids” or “abets” Derek Chauvin.

But let’s be honest. None of that matters. The problems this nation has were not caused by this incident, and they will stay even after this incident is over. We need to talk about how we police the police

How We Currently Police the Police

We need to talk about four subjects: Qualified Immunity, Police Policy, and Ordinary Laws

Qualified Immunity

The first big issue when it comes to policing the police is the doctrine of “Qualified Immunity.” What this means is that when a government official does something within the official’s discretion, that official cannot be punished by later government officials or courts for that action.

We think of this as a “police” issue, but it is much broader than that. The reason George W. Bush, Lyndon B. Johnson, Bill Clinton, and Barack Obama cannot ever be sued for engaging in wars is the doctrine of Qualified Immunity. Engaging in military actions is a part of being president, and presidents are often forced to act when facts are unclear, when intelligence is murky, and when adversaries are deliberately fashioning lies. Presidents are often wrong. But they still have the authority of their office. That is why they have immunity, even when they kill people.

But this immunity is qualified by “clearly established rights.” Despite the ability for presidents to be wrong, it is clearly established that you do not literally nuke Mexico City because of immigrants at the border. There are a million other options that are allowed that do not involve the nuclear football. There is immunity, but there are also limits. Our laws give those limits.

However, things get difficult with the very-in-the-weeds work of the police. The ordinary job responsibilities of police are literal felonies when other people do them. If you personally stop someone at gunpoint, bind their hands, put them int the back of a car, and take them to where you think they should go, that is kidnapping.

But there is an explicit exception for law enforcement officials. When a police officer does this pursuant to a valid warrant, or due to his own inherent power as a law enforcement official, that’s GOOD, and we LIKE IT.

Isn’t that weird? No, it’s not. This is what it means to have a government. We do not have a “free market” of justice. We come together, we create a system, and we use that system to turn anarchic vigilantism into ordered liberty.

This is why proposals to end qualified immunity, however well-intentioned, are BAD. It destroys the entire idea of “government.” The good news is that there are other ways to address this problem.

Police Policy

When I was a child, I remember hearing that police in Los Angeles created a rule the ended high speed chases. I remember thinking this was ridiculous. “Won’t they get away?” I thought.

What I as a kid in rural northern Louisiana did not know is that Police Helicopters are “a thing.” For police jurisdictions with lots of road, lots of traffic, not many trees, and LOTS of helicopters, a pursuing police vehicle is not as important as I thought.

The same could be said for a number of other factors. For example, growing up in that rural town, I know the actions I would need to take to carry a firearm into a store like Walmart. Why? Because stores like Walmart repair and clean guns (or at least they did once). You remove the bolt of the rifle or the clip or the barrel or the chamber, or whatever thing your particular gun has that makes it inert, and you walk in, holding it in two pieces. Neither I nor anyone I knew was ever afraid of “guns” or people carrying guns where I came from. However, as soon as I moved to the DC region and finally understood what population density really was, I began to think to myself, “Geez, suddenly, I don’t like the fact that just any one of these crazy people might have a gun.”

Additionally, I imagine few people in Washington D.C. even know what a “Game Warden” is. But in Louisiana, he is the most feared law enforcement official of them all.

As this personal observation showed me, these random facts of geography and demography could have HUGE affects on what is necessary to “police” a place. Why can some officers wait for backup while others must shoot? Sometimes, THERE IS NO BACKUP. Every situation is different.

In light of these differences across our country, police have very unique and non-uniform policies. They have unique training. They have unique missions. We should keep this in mind. These policies are important and almost always come from the local jurisdiction’s Chief of Police, and sometimes the mayor (who almost universally defers to the professionals).

These policies can get police promoted or fired. They determine where and how they act as police. They determine when and where they are on call. They determine if and how force is used against suspects and arrestees. They determine which non-violent means should be exhausted.

They are the closest thing to the nuts and bolts of policing, other than the individual skill and experience of the officers themselves. They are EXTREMELY important. Any police reform MUST address police policies, and that is a highly technical and non-uniform task.

Ordinary Laws

Notice that the four officers (and all officers who have been involved in bad police shootings) have been charged with the violation of ORDINARY laws.

Derek Chauvin is charged with Manslaughter in the Second Degree and Murder in the Second Degree. Officers Lane, Kueng, and Thoa K have been charged with Aiding and Abetting that Murder. These are crimes of which any ordinary citizen can be guilty.

The same is true for officer Jeronimo Yanez, who is the officer who shot Philando Castile. He was charged and tried, but found innocent of “intentional discharge of firearm that endangers safety.” That’s also a crime of which any ordinary citizen can be guilty.

The same is true for officer Mohamed Mohamed Noor, who was convicted of Murder in the Third-Degree and Manslaughter in the Second Degree. Somewhat relevant to our racially charged times is the fact that the person he killed was a photogenic white woman named Justine Damond, while the officer is an African American man named “Mohamed Mohamed Noor.” (Call me crazy, but I don’t think that’s going to play well at the end of the Derek Chauvin case, in which I predict acquittal.)

The Problem With Ordinary Laws For Not So Ordinary Defendants

Because of qualified immunity, the fact that cops regularly and justifiably shoot people, and the fact that cops regularly get shot by criminals, there are some very strange standards of justice when it comes to police officers.

For ordinary people, there is ordinary self defense. If you actually kill someone ON PURPOSE in the United States, you generally will be innocent based on the defense of “Self-Defense” if you meet this following five-point test:

  1. Innocence –
    • You cannot start the fight or altercation. If you’re “the jerk” in the situation, that’s murder.
  2. Imminence –
    • The danger to you must be either happening right now or happening very (and I mean VERY) soon.
  3. Proportionality –
    • You aren’t required to be evenly matched, but if you bring a gun to a fist-fight, you’re in trouble.
  4. Avoidance –
    • If you can avoid the fight, you are obliged to do so, unless you are at your home or (in some places) your place of employment. (States that have passed laws that do not require defendants to meet this element are called “Stand your ground” laws)
  5. Reasonableness –
    • Even if you technically meet all of these requirements, if there is still something “fishy” about what you did, then you could run into trouble on this element.

THIS ISN’T LEGAL ADVICE (and if you’re taking legal advice on killing someone from a blog, you might fail point 5), but yes, those are the basics in the United States for intentionally killing people.

In contrast, here is the portion of Minnesota Law that describes when a cop is justified in killing someone.

Notwithstanding the provisions of section 609.06 (regarding authorized use of force) or 609.065 (regarding justifiable taking of life), the use of deadly force by a peace officer in the line of duty is justified only when necessary:

(1) to protect the peace officer or another from apparent death or great bodily harm;

(2) to effect the arrest or capture, or prevent the escape, of a person whom the peace officer knows or has reasonable grounds to believe has committed or attempted to commit a felony involving the use or threatened use of deadly force; or

(3) to effect the arrest or capture, or prevent the escape, of a person whom the officer knows or has reasonable grounds to believe has committed or attempted to commit a felony if the officer reasonably believes that the person will cause death or great bodily harm if the person’s apprehension is delayed.

And there are other exceptions as well. You can see this is MUCH more broad than the stuff offered to other people. I’m not saying it’s a “bad thing,” but it is a “thing.”

Here’s the thing I think is the bad thing: Do you notice what is NOT in that list of exceptions that make the death of someone at the hands of police “not criminal”? POLICE POLICY – the RULES about how they should be acting! In contrast, do you see the ONLY thing that is referenced in that list of exceptions that governs whether a police’s actions are criminal? THE OFFICER’S BELIEF. In fact, the statute doesn’t even say “believes.” All it says is “has reasonable grounds to believe,” which is even broader than that.

My Humble Suggestion for Policing the Police

I do agree that officers need to have much broader authority to use force against people than ordinary citizens, but I also believe that the system we have to keep them in check is not working.

I don’t mean to say anything about officer behavior in general. What I mean is that if people in a representative government do not BELIEVE that the system is working, then IT’S NOT WORKING.

So what do we do? I don’t know, but here’s my best shot. We create SPECIAL laws for police that are CLEAR, and we have ORDINARY standards of justice applied to these SPECIAL laws, rather than SPECIAL standards of justice applied to ORDINARY laws.

An Example of a “Special” Law

Though it may sound strange to have “special” laws for police, this concept is not new. There are already “special” laws for different kinds of people in our society, whether they’re doctors or lawyers or manufacturers, etc. We make specific laws for specific people.

For example, if a person in a position of public trust, like a state treasurer, does something wrong with the state’s resources, we don’t have “ordinary” laws of “larceny” or “burglary” or “theft.” We have SPECIAL laws of “embezzlement of public funds.” Only someone in a position of public trust can be guilty of that, and the penalties are GREATER than ordinary.

I say the same thing should be done for police officers. Make special and separate code provisions. If the Military has not only its own code of justice, but also its own court system, why can’t police at least have their own laws and governance?

The Special Laws for Police

The goal of these laws is to align the polices of police (especially regarding Use of Force and participating in the prosecution of citizens) with the criminal law. That way, we don’t need to do away with the important doctrine of qualified immunity. Instead, ordinary laws can bring ordinary justice to our communities in these extraordinary times.

I’m not saying that officers need to either be 100% correct or be felons, but I am saying that if an officer shoots Philando Castile like we know he was shot, then that should be more than merely “getting fired.” But then again, it’s also not murder. It’s something ELSE. Cops are in the line of danger, that’s part of their job description. But there is a standard of BRAVERY that we want from our cops, not merely “reasonableness.”

So this list is not at all exhaustive, I am not going to attach sentences to any of these, and I am not going to even attempt to put the legal statutory language into play. But what I do want to do is create “special” offenses are worth putting into law:

Regarding Police Generally Not Following Appropriate Policies:

  1. Intentional failure to follow known police policy regarding [X].
  2. Negligent failure to follow known police policy regarding [X]
  3. Reckless ignorance of relevant police policy regarding [X]

Regarding “Mysterious” Absence of Police Body-Worn-Camera or Dashboard Footage:

  1. Intentional deletion of BWC footage of a use of force, in violation of police policy.
  2. Conspiracy to prevent the appropriate footage of official duties from being recorded, in violation of police policy.

Regarding Run-Of-the-Mill Dishonesty or Perjury Committed By Police:

  1. Deliberately making false statements in an official capacity causing the unjust imprisonment of a person.
  2. Deliberately making false statements in an official capacity contributing to the imprisonment of a person.
  3. Deliberately making false statements in an official capacity that carry the reasonable risk of contributing to the imprisonment of a person, whether or not they are imprisoned unjustly.
  4. Deliberately falsifying evidence (including the planting of evidence) to affect a criminal case.

Regarding Cops yelling “Stop Resisting!” to Create a Record on Camera Instead of Appropriately Instruct the Arrestee:

  1. Making a false statement to justify an action within police polciy guidelines, while knowing that the statement is false and not instructive to the arrestee, not made for the purpose of public safety, when such words are accompanied by uses of non-violent force.

Regarding Dangerous No-Knock Warrants:

  1. The reckless execution of a “no-knock warrant” that failed to follow police policy regarding the safety of the community or the preservation of evidence.
  2. The reckless or negligent execution of a “no-knock warrant” that failed to follow police policy regarding the safety of the community or the preservation of evidence, and resulted in the death of a citizen, the injury of a third-party, the death of a household pet, or the destruction of property.

Regarding Police Brutality on a Non-Lethal Level:

  1. Improper use of force by means that fall within police policy guidelines, but which clearly evidence a personal or passionate motive for the action, when that action does not reflect a reasonable motive of safety for law enforcement officials or order for the general public.

Regarding Situations like the Stoneman Douglas High School Officer (who hid rather than jump into action):

  1. Failure to display the courage or conduct reasonably required of law enforcement officers in a matter of public safety, which results in the death or serious injury of an innocent person or persons, in violation of police policy or direct orders regarding the dangerous situation, when such courage or conduct had a significant chance of preventing that death or serious injury.

Regarding Trigger-Happy Cops:

  1. Negligent failure to follow police policy regarding the safety of a suspect, detainee, or arrestee, resulting in death.
  2. Negligent failure to follow police policy regarding the safety of a suspect, detainee, or arrestee, resulting in serious bodily harm.
  3. Failure to display the courage or conduct required of low enforcement officers, which resulted in the death or serious injury of a suspect, detainee, or arrestee.

Regarding Ordinary And Actual Murders Committed by Cops That Are Hidden by the Authority of Police:

  1. Illegitimately using the color of law by intentionally violating police policy to effect the [murder/manslaughter] of a person.
  2. Illegitimately using the color of law by intentionally withholding information, in violation of police policy, to hide the [murder/manslaughter] of a person.

Conclusion

I don’t think this is exhaustive, and it is applied more to street level cops that higher-up (who have their own failings, I’m sure). I bet I even made some bad rules that comes from my own inexperience in policing.

I also don’t know the punishments that should be attached (some are obviously capital crimes, while others are more like traffic fines or misdemeanors). here’s an entirely separate matter about HOW such cases are prosecuted, which itself is a big issue.

However, I do believe that we need to start incorporating police policies into actual CRIMES for police, so that we can rebuild some trust in the system. Regardless of the intent for the system we have, what we know is that it’s not working right now.

I don’t think this is the be-all-end-all of the discussion, but it’s at least a start. Let’s pray that the situation we’re now in blows over, and better days are ahead.

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