‘Laws Are Incredibly Deferential to Police Using Lethal Violence’

Janine Jackson interviewed Chase Madar about prosecuting abusive police officers for the October 23 CounterSpin. This is a lightly edited transcript.

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Chase Madar: “If there’s any conceivable way to justify what a police officer has done, it is probably going to hold up in court.” (image: TomDispatch)

Janine Jackson: When the Cuyahoga County prosecutor released two reports asserting that Cleveland police officers acted reasonably in shooting a twelve-year-old boy holding an air pistol within seconds of arriving on the scene, it was seen by many as preparing the public for the fact that the prosecutor would not be strenuously pursuing indictment of the officers before the grand jury.

And for many, that’s depressing but not terribly surprising. There are some who believe law enforcement don’t make mistakes, or any mistakes they make should be overlooked because they have a hard job. Those that don’t share that view look to the legal system to bring justice when police officers fail, but every day brings evidence that that faith is misplaced, that the mechanisms that in theory should serve as checks on police power either exist in theory more than in practice or don’t exist at all.

How can those outraged by police violence turn anger into change? Here to discuss the issue is Chase Madar; he’s a civil rights attorney and the author of the book The Passion of Chelsea Manning. Welcome to CounterSpin, Chase Madar.

Chase Madar: Great to be talking with you.

Tamir Rice

JJ: The fatal shooting of Tamir Rice by Officer Timothy Loehmann was heartbreaking. It didn’t come out of the blue, though. The Cleveland Police Department has already been cited by the Justice Department for excessive force for which officers are rarely disciplined. A 2013 investigation by the state attorney general found “systemic failure,” that was their term, systemic failure in the department. There’s just a lot of wrong in this story, from the failure to vet Loehmann, who had a terrible record, to the harassment of Rice’s family; it’s staggering.

But now all the attention is on the prosecutor and the grand jury, as if some measure of justice will come from that process. But the law on police shootings just doesn’t work the way that people might imagine it does, does it?

CM:    No, it doesn’t, and it’s important to face that head on from the very beginning. I think there is a very hard-wired tendency among Americans in general, and liberals in particular, to think that even when things are going wrong, that the law is good and fundamentally on our side. That the law is synonymous with justice.

And people like to think this whether it is regarding the dysfunction of our financial system, that it must be the result of crime rather than the ordinary workings of our financial laws. People think that anything that goes wrong in wartime must be a crime, even though the laws of war are incredibly permissive, really have the function of the licensing act of lethal violence, rather than restraining it.

And this goes double, triple, quadruple for police violence. In fact, the laws as they actually exist in the United States, not as we wish they might be, but as they actually exist, are incredibly deferential to police officers using lethal violence. And this is not just a matter of local aberrations in places like Ferguson, Missouri, or Staten Island; the laws really shielding police violence from accountability—that goes all the way up to the Supreme Court, and it’s a part of Supreme Court jurisprudence that police can really fire with a great degree of latitude.

Supreme Court Building (photo: Daderot/Wikimedia)

JJ: What is that legal underpinning; there’s something called “objective reasonableness” that seems to get to the heart of the actual standard in play when police kill somebody.

CM: In the 1985 landmark US Supreme Court case of Tennessee v. Garner, the Court set up an “objectively reasonable” standard for whether or not a police officer can use lethal force. And, of course, this sounds wonderful; what could be better, an objectively reasonable standard, you got to be objective, that’s good; and reasonable, who could be against that?

But the way this has worked out in actual practice in courts, including the Supreme Court in subsequent decisions about police violence, is that it is incredibly deferential to police officers; it’s really what seemed objectively reasonable to the police officer at that moment, without any second-guessing being allowed, without any hindsight being allowed, and it’s more of a subjectively reasonable test.

Now, there are limits, I don’t want to say that absolutely anything goes, and some listeners will remember the case of Abner Louima in New York City, a man who was taken by the police, he had gotten in a scuffle outside a nightclub, I believe. And he was sexually tortured by New York police with a plunger handle in the bathroom of a police precinct. And the law was very clear that what the police did there was wrong, and they were punished by federal prosecution very swiftly. Even the most die-hard defenders of the police won’t say that’s OK.

But if there’s any conceivable way to justify what a police officer has done, it’s probably going to hold up in court. And those who know the law were therefore not so surprised by the no bill of indictment handed down for the police shooting of Michael Brown in Ferguson, or by the police strangulation of Eric Garner in Staten Island, which also came up with a no bill of indictment in the grand jury. And what I mean by that is that these cases were not even brought to trial, they were deemed by the grand jury to be not trial-worthy, not strong enough.

Looking at the other mechanisms that you think might be able to restrain police violence, or control and regulate the police use of violence, they usually come up empty-handed too. You might think that suing a police department, OK, while it doesn’t result in a criminal conviction or prison sentence for police officers, shouldn’t that install good behavior or better behavior, shouldn’t that incentivize good behavior? Surely the financial hit of a big multi-million dollar payout will set up a new incentive structure and will deter bad behavior in the future.

It makes common sense, but it turns out to be all wrong. In fact, the payouts that police departments routinely give out, especially in big cities, that money does not come from police department budgets at all, it comes from, usually, a general city budget, the individual police officer at fault doesn’t have to pay any money himself or herself. And in New York City, even if there is a successful suit against a police officer, I was told by Ron Kuby, a veteran civil rights litigator who sues the police routinely, that the report of this lawsuit won’t even be put in a police officer’s permanent record or in his or her file.

JJ: Ultimately the taxpayer is paying for —

CM: Yes, ultimately it’s the taxpayer; that’s the cruel irony of this.

JJ: I think people want police who kill people who pose no threat to them to go to jail, just like criminal bankers, not because they think jail fixes everything. I think it’s the double standard that galls, the “one law for me, another for thee.” We have people doing life without parole for marijuana offenses. But if we want institutional change, how far would even criminal prosecutions go toward achieving that?

CM: They should be used, and they should even result in convictions sometimes, but if we want real institutional change, then I think we’re going to have to have a different focus, and a broader focus than that. Because criminal prosecutions, using that as the spear tip, really doesn’t seem to work to reform police departments, to change police behavior. And I think when it comes to reforming police departments and police behavior, it’s either go big and look at the really big picture, or just–that’s just the only way. Or nothing.

JJ: Well, let’s go bigger. I mean, when they take up these questions, corporate media evince what I would call a polite dismay. Gosh, they sure wish this would stop happening somehow. But the responses never step outside the system, and of course they privilege the police perspective in the day-to-day. It’s completely legitimate for a story to contain only comments from law enforcement, they just aren’t seen as interested actors, as non-neutral, it’s almost like the state, they are benign by definition.

But if we want to think bigger, well, first of all you have to give a damn, you have to see a problem. You wrote in The Nation last year that the fact that the federal government doesn’t keep a strict national tally of police homicide shows just how seriously it takes this problem. The Guardian has just reported that the FBI data that they obtained doesn’t include Tamir Rice, Eric Garner, John Crawford. Florida hasn’t submitted any data on police-related deaths in ten years, and the FBI data doesn’t even know if the victims were armed. But the FBI’s James Comey keeps coming out with–he’s really sorry about it, man. Data collection seems like a place to at least start?

The Nation (11/25/14)

CM: Yeah, it certainly does, but I’m sad to say that almost a year after I published this long article in The Nation, called “Why It’s Impossible to Indict a Cop,” it is still the case that there’s no good national record-keeping. I went to a talk last night of another journalist, who was saying that he was talking to people in Washington, and they are still dependent on following the Guardian newspaper and the sports website DeadSpin, which are doing a better job. And our government even, for all its resources, is dependent on the sports website DeadSpin and a British newspaper, the Guardian, for their statistics; it’s quite pathetic.

JJ: What would it look like?

CM: What would meaningful police reform look like? Many of the reforms that are getting tossed about right now are very small-scale reforms: new and better training; body cameras is a big one; more women, who might be less confrontational, more reasonable on the police force than men.

I don’t want to dismiss these out of hand; I don’t think they’re necessarily useless. There might be some good things, and there might be some real liabilities to some of these reforms, especially with body cameras, which has a certain dystopian potential, and very often is much better at shielding the police from liability rather than actually bringing newer responsibility to them.

But bigger reforms, and bigger thinking about reforms are needed. One example of this is from recent headlines here in New York, where the police department and the mayor have announced that police are going to be rousting homeless people who are sleeping or just kind of aimlessly riding the New York subway system. This is what the city’s resources are going to be directed towards — social policy about homelessness that is heavy on the police. And we need to think about what’s the opportunity cost here: Why can’t that money be spent, instead of on police and police solutions, on making the homeless shelters more habitable?

And that’s just one example. It seems that so often, social policy in the United States has to involve law enforcement, and armed law enforcement, and everything becomes a police matter, every social problem. It’s important to recognize that a great many social problems are best not handled by the police.

I mean, drug addiction. I was just in Portugal, and interviewed some people who work in government there, Portugal has decriminalized drugs to a very high degree, they have not legalized them like in Colorado or Washington, but they have decriminalized them, meaning that all drug consumption issues and drug use issues are handled by the department of public health, not by the police, and they’ve had very good results. And now that policy, after ten years, enjoys very broad and deep multi-partisan support; even the right-wing parties are all behind it because it’s been so successful. We need to think about that here, not just for marijuana, but also for heroin, meth and crack use. And that’s one way we can strongly improve our police departments, is by ending the war on drugs in a reasonable and sane way.

I just wrote something for Al Jazeera, I think it might alienate some of my left-of-center friends, about business crimes, and how we need to recognize that not everything on Wall Street that we hate is actually criminal. I think that more than 90 percent of what led to the most recent Wall Street Crash in 2008 was actually perfectly legal. And it really lets the systemic issues off the hook if we pretend it’s just a few criminal bad apples there. I think we need major financial system reform and regulatory reform; we should recognize that the priorities should be restructuring the financial markets through civil law and administrative law, rather than having a show trial prosecution every couple of months that makes people feel good but leaves the overall system in place.

JJ: Absolutely, and that’s kind of what we’re getting at here, the idea that we really want things to fundamentally change. And on that note, when I hear that left and right agree on criminal justice reforms, I tend to worry, but at the same time I think it’s a luxury to allow the perfect to be the enemy of the good. So people are talking about mass incarceration, they’re talking about sentencing disparities, I don’t really feel that they thought, wow, we’ve done a lot of harmful and stupid and misdirected things. But I do see that there’s some kind of political zeitgeist happening to at least put these things on the table.  But how radical, in terms of going to the root, do you feel that it is? What do you read as the hopefulness quotient of the current interest at all levels in at least talking about criminal justice reform?

CM: I think it’s a good thing. Yesterday there was a big story in the New York Times about how police chiefs and district attorneys from all over the country, representing big cities and jurisdictions, not everybody, a lot of them are getting together. They formed a new group, I can’t remember what it’s called, that is admitting that mass incarceration is a huge problem in the US, it’s gone too far, and we need to find other solutions.

Now, I rolled my eyes a bit at this, and other people I know and respect who have worked in this area a lot longer than I have did too. But the only thing worse than having these police chiefs spout some rhetoric that is sort of on your side, but you’re skeptical, is to have them against you. And I think that it’s a good thing, or it’s an indicator of the political mood, that they are at least whistling a different tune.

I think getting real practical reforms is going to be something else. It’s important to be both radical and practical, and that means being skeptical of big reform packages that are getting advertised as wonderful, bipartisan and super-nice. The sentencing reform that’s moving forward in the Senate is an example of this; you have this utterly retrograde senator from Iowa, 82-year-old Chuck Grassley, who is almost single-handedly restraining good, meaningful sentencing reform. There are plenty of Democratic laggards there, so there was a package of sentencing reforms that were put together in a single bill. It’s very mild, it doesn’t do a whole lot, it’s better than nothing I suppose, but given how hard it is to get a single bill passed, I just hope it doesn’t suck all the air out of further efforts to do real reform at the federal level.

JJ: So maybe we use it as a chance to push for the harder, the more serious reforms, the more overarching reforms that we would like to see?

CM: Yeah, yeah.

JJ: We’ve been speaking with Chase Madar; his book is The Passion of Chelsea Manning. Chase Madar, thank you so much for joining us this week on CounterSpin.

CM: Wonderful to chat with you, Janine.