David Enrich, the business investigations editor for The New York Times, is the author of the forthcoming book, “Servants of the Damned: Giant Law Firms, Donald Trump, and the Corruption of Justice,” from which this article is adapted.
“Early on a Saturday morning in 2013, Mark Bennett, a federal judge, walked into his chambers in the courthouse in Sioux City, Iowa. He’d been out of town for a speaking engagement and was hoping to catch up on work. A surprise awaited him as he entered his office: Cardboard boxes were stacked everywhere. His immediate thought was that another judge might be moving in.
Another judge was not moving in. Judge Bennett was presiding over a case in which Abbott Laboratories, the sprawling health care company that dominated the market for infant formula, was being sued on behalf of a girl, Jeanine Kunkel, who five years earlier had suffered severe brain damage after consuming the company’s powdered formula. Jeanine couldn’t speak, sit up or even swallow, and the tragedy had nearly destroyed her family.
The boxes cluttering Judge Bennett’s chambers were filled in large part with evidence that Abbott’s lawyers wanted to be able to introduce at the upcoming trial.
After more than two decades on the federal bench, Judge Bennett had a pretty good guess as to what was going on. The accusations in the lawsuit posed a threat to Abbott, which had staked its reputation on being family-friendly and devoted to health and safety. Judge Bennett figured that to protect an important client, the company’s outside lawyers, from the international law firm Jones Day, were trying to snow their opponents with tens of thousands of pages of paperwork. Even if the materials were only tangentially related to this particular case, the plaintiffs’ lawyers would need to spend countless hours poring over the documents to see what they contained.”
“Some police departments across the country have embraced the corrupting and unjust practice of raising revenue for their municipalities by pushing officers to write as many traffic tickets as possible.
Policing for profit encourages unfair enforcement of the law. It also increases the likelihood that motorists stopped for infractions largely unrelated to public safety will be killed or injured during encounters with officers who are trained to view traffic stops as moments of mortal peril.
The situation cries out for departments to change how officers are trained. Ultimately, these departments need to stand down from practices that bring many more people than necessary into contact with the law under circumstances that too often lead to what one district attorney refers to as “anticipatory killings” by police officers.
The New York Times lays out these and other issues in an alarming investigation of the culture that too often transforms traffic stops for common violations into unnecessary beatings, car chases or shootings.
“Like everyone else, I look forward to a summer of reconnecting with family and friends and relishing a good ole Fourth of July barbecue — unmasked! But I will be doing so with a pit in my stomach, because just beneath the surface calm in America, volcanic forces are gathering that could blow the lid off our democracy. We are living in a fool’s paradise. Enjoy it while it lasts.
Three recent news stories have me terrified:
First are the unfolding reports about how Donald Trump’s Justice Department secretly seized the personal data of journalists and Democrats in Congress from phone and tech companies while investigating leaks, and even secured Trump’s own White House counsel’s data. Now imagine what would happen if Trump was re-elected in 2024 by his cultlike following and he didn’t have to worry about facing voters again? He’d be out of control.”
David Lindsay Jr.Hamden, CT | NYT Comment:
Bravo Thomas Friedman. When you are good, you’re great. You end, “This is political dynamite for Democrats. The Trump-cult G.O.P. will pound them on this policing issue. Biden needs to keep rallying his party tightly around his right answer: transformed policing and sufficient policing — not defunding the police. Because if people feel forced to choose security over democracy — concerns about stealing outside their door over stealing an election — beware: Way too many will choose Trump and his cult.” I couldn’t take fault with anything in your piece, but I worry that unarmed old progressives like myself would be sorry partners in a civil war. While I enjoyed the top comments, they didn’t ever address directly your essay or its multiple points. It makes me wonder if the NYT comments section, which I love, should add a new category, On Topic, next to, Reader Picks, and NYT Picks, that would steer some of us to comments that actually address the essay that provides the forum, but is often ignored, or replied to only obliquely. While this might be a silly idea, or way to much work, maybe there is a solution. I will start rereading the NYT Picks, to see if they have a quiet bias towards this desire I have, to see writers address the essay at hand. Friedman is right to warn us of how dire this Defund the Police language will be to the future of our democracy. Here in Hamden CT, there are young radicalized progressive no nothings that spout Defund the Police, hurting Democrats.
“Along with many others, I have long argued that the reason so few police officers are ever charged in their killings of unarmed Black people (and few of those charged are ever convicted) is that our legal system has effectively rendered those killings legal. This is the case regardless of how horrendous the killings are or how much evidence, including video, makes clear what took place.
The defense in the trial of Derek Chauvin in the death of George Floyd raised this very concept Wednesday when questioning Sgt. Jody Stiger, a Los Angeles Police Department use-of-force expert who was a witness for the prosecution.
Eric Nelson, an attorney for Chauvin, asked if Sergeant Stiger had ever had anything to do with a training called “awful but lawful, or lawful but awful.” He said that he had. Nelson continued his questioning: “The general concept is that sometimes the use of force, it looks really bad, right, and sometimes it may be so, it may be caught on video, right, and it looks bad, right?”
Sergeant Stiger responds, “yes.”
Nelson then says, “But, it is still lawful.”
The officer concludes, “Yes, based on that department’s policies or based on that state’s law.” “
David Lindsay Jr.Hamden, CT | NYT Comment:
Thank you Charles Blow. It seems that awful should not be lawful. You stop someone for the equivalent of jay walking, and then, if they try to run, you execute them with your gun. How do we make awful unlawful?
The editorial board is a group of opinion journalists whose views are informed by expertise, research, debate and certain longstandingvalues. It is separate from the newsroom.
“Since the death of George Floyd sparked a wave of national protests, at least 42 of the 50 largest cities in the country have adopted new rules aimed at curbing abuses by the police, according to a tally by Samuel Walker, an expert on police accountability who is affiliated with the University of Nebraska Omaha. From May through August, 15 cities banned chokeholds. A dozen passed “duty-to-intervene” statutes, requiring police officers to act if they see a fellow officer endanger a civilian. Still others banned so-called “no knock” warrants or changed policies related to the use of force.
Those reforms are important in and of themselves, and they also serve as a reminder of the power of collective action to influence new policies. Yet this list’s potential to create real change will be seriously limited unless city leaders and state lawmakers take on an entrenched barrier to reform: labor arbitrators. These are the men and women who routinely reinstate abusive officers who have been fired for misconduct.
Labor arbitrators have ordered police chiefs to rehire officers fired for deeds as outrageous as sexually assaulting a teenager in a patrol car, driving the getaway car in a murder and fatally shooting an unarmed driver, according to a 2017 investigation by The Washington Post.
Cases like these have a corrosive effect on society, serving as proof to many Americans that the current system cannot be reformed. These cases also demoralize mayors and police chiefs who have worked hard to remove problem officers, only to face orders from unelected arbitrators to give those abusive officers their badges and guns back. It doesn’t matter how much a police department overhauls its use of force policy, or how strictly a police chief enforces those new rules if unelected arbitrators reverse the punishments of officers who violate the rules.”
“. . . . Much more needs to be done to rein in the power of labor arbitrators, but at least it is a start. Cities that are interested in taking this on could look at municipalities in California, like Burbank and Cathedral City, that have hybrid systems where arbitration decisions are nonbinding. Officers still have the right to argue their cases before a neutral body, but the ultimate decision to terminate an officer is left in the hands of the city manager, who is accountable to the community. That’s where it belongs.”
“Activists gathered in September for a Black Lives Matter protest in Los Angeles.Credit…Frederic J. Brown/Agence France-Presse — Getty Images
“LOS ANGELES — In late August, Los Angeles sheriff’s deputies shot a Black man, Dijon Kizzee, whom they had stopped for a suspected traffic violation as he rode his bicycle. He became the seventh man killed by deputies in Los Angeles since the death of George Floyd in Minneapolis on Memorial Day weekend.
On the same afternoon, state legislators in Sacramento raced to the end of their 2020 session. The most significant police reform measure, heralded in the days of the Black Lives Matter marches that filled the streets, did not even come up for a vote.
A centerpiece of the agenda would have set up a process for yanking the badge of any officer found to have committed serious misconduct. California is one of only five states that has no process for certifying police officers, which among other things enables bad cops to move from department to department with impunity.
Democrats hold supermajorities in both houses. Major newspapers in California editorialized in favor of a slew of police reform bills. Polls showed support. In one of the bluest states in the country, all indications pointed toward action on reform.
But in the end, even here, it was essentially business as usual in a State Capitol where police unions have long wielded enormous power. The measures that passed this year were either noncontroversial or so diluted as to have little if any immediate impact.”
“During this summer of tear gas and turmoil, Kamala Harris has not been quiet.
On “The View,” the California senator spoke about “reimagining how we do public safety in America.”
On the Senate floor, she sparred with Rand Paul after the Kentucky Republican blocked a bill to make lynching a federal crime, and she is among the Democrats sponsoring policing legislation that would ban choke holds, racial profiling and no-knock warrants.
On Twitter, she expressed frustration that police officers who killed a Black Kentucky woman, Breonna Taylor, during a drug raid gone wrong, “still have not been charged.”
As a leading contender to be Joseph R. Biden Jr.’s running mate in the final days before his decision, Ms. Harris has emerged as a strong voice on issues of police misconduct that seem certain to be central to the campaign. Yet in her own, unsuccessful presidential run, she struggled to reconcile her calls for reform with her record on these same issues during a long career in law enforcement.”
David Lindsay: We admired the report the other day of a hard core Republican, who said, if the Democrats ran a can of soup against Donald Trump, he would still vote for the can of soup.
I am not an admirer of Kamala Harris. I will try and find the Nicholas Kristof muck raking report that turned me off – from 2018.05.17.
But as the Attorney General of California, Kamala Harris supported the police unions about 99% of the time, because it was then popular with the majority of voters. I was pleased, on the other hand, to see a report on her on the PBS News Hour last night, that showed a far more nuanced and favorable set of facts. She did push for improvements, but oh so gently. When a police officer killed a person, she always deferred to the local district attorney, to decide whether to investigate the police to respect the current process. And investigations almost never happened. Many many killings went uninvestigated.
New York City police officers in Brooklyn this month responding to a protest against police brutality.Credit…Demetrius Freeman for The New York Times
“American policing is going to emerge changed from this June of protest. The question is whether it will be altered for the better. So let’s consider three possible scenarios for change — one building on the current system, another more ambitious but also riskier, and a third to be avoided at all costs.
The grand bargain
At this point, almost everyone except their union reps agrees that American police officers are too well defended from accountability. Collective bargaining makes police misconduct more common; the terms of union contracts often obstruct disciplinary action. It’s too hard to fire bad cops, too easy to rehire them, too difficult to sue them, too challenging to win a guilty verdict when they’re charged with an offense. All of which means it’s too easy for cops to get away with abuse, violence, murder.
On the other hand, as Charles Fain Lehman of The Washington Free Beacon points out, police departments aren’t as awash in funding as the rhetoric of “defund the cops” — even in its milder or nonliteral interpretations — would suggest. As a share of budgets, state and local spending on the police increased in the 1990s but has been flat or falling for the last two decades. (Indeed, cities may be offering sweeping union protections to their cops as a way to avoid paying them more money.) Despite frequent suggestions that the United States overspends on policing, as a share of gross domestic product, the European Union spends 33 percent more on cops than the United States does — while spending far less than us on prisons.
There are good reasons to think that the Europeans know what they’re doing. A substantial body of research suggests that putting more cops on the beat meaningfully reduces crime. And even the American neighborhoods that suffer most from police misconduct and brutality are often still under-policed when it comes to actually solving murder cases.”
David Lindsay, comment in the NYT:
Thank you Ross Douthat. You wrote: “At this point, almost everyone except their union reps agrees that American police officers are too well defended from accountability. Collective bargaining makes police misconduct more common; the terms of union contracts often obstruct disciplinary action. It’s too hard to fire bad cops, too easy to rehire them, too difficult to sue them, too challenging to win a guilty verdict when they’re charged with an offense. All of which means it’s too easy for cops to get away with abuse, violence, murder.” With such a clear opening statement, you could only add value to a most complicated debate. I would love to hear more about how the Europeans do better than us. I also, as a trained martial artist, would like to see all police officers required to work towards a black belt in Aikido, the modern Japanese martial art about controlling an opponent, while also knowing how not to hurt them, as well as how to hurt them if necessary.
Mr. Epps is an associate professor of law at Washington University in St. Louis.
Buffalo law enforcement and fire department members gathered on June 6 in support of the two officers charged with felony assault for seriously injuring Martin Gugino, a 75-year-old peaceful protester.Credit…Madison Carter/WKBW, via Associated Press
“The national movement galvanized by the killing of George Floyd has created the possibility of transformational change to policing. One reform that has generated broad discussion is eliminating “qualified immunity,” the court-created doctrine that makes it difficult for people whose civil rights are violated by police officers to obtain money damages in lawsuits. There are good arguments for getting rid of this immunity, or at least seriously restricting it. But abolishing it is unlikely to change police behavior all that much.
Qualified immunity shields government officials from personal liability in federal lawsuits unless they violate “clearly established” federal law. That means that even if a police officer violates someone’s constitutional rights, the victim can’t obtain damages from the officer unless he or she can show that the officer violated a right explicitly recognized by a prior court ruling.
In theory, this requirement protects government defendants from unexpected liability when law changes. In practice, courts apply the doctrine aggressively to shield officers from lawsuits unless plaintiffs can point to other cases declaring essentially identical conduct unconstitutional — a difficult hurdle, even when police conduct appears clearly wrong.
Indeed, even if the former police officer Derek Chauvin is convicted of murdering Mr. Floyd, it’s quite plausible that a court could refuse to hold him liable for violating Mr. Floyd’s constitutional rights if his lawyers were unable to point to an earlier case making clear that the specific action Mr. Chauvin took — kneeling on a restrained person’s neck for more than eight minutes — was unconstitutional.”