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We are at a pivotal point in history. We sit at a critical juncture where the outrage over the brutal and unjustified law enforcement killings of George Floyd, Tamir Rice, Breonna Taylor, and other Black Americans still burn in hearts and minds. Yet, the white hot motivational outrage over those incidents of injustice has started to settle as the attention by the media and the public has turned to other headlines. It is in this moment that NACDL should stand up, adding its voice to efforts to address police misconduct and brutality in this country and pushing for transparency and accountability from law enforcement agencies. It is also the right thing to do and why I will focus on these issues during my year as president of NACDL.
Americans have historically accepted police conduct and practices — as well as police misconduct and corruption — out of blind nostalgic allegiance to the notion that officers are the guardians of safety and that they are there at all times to help. I tell my clients that when an officer wants to speak with them, he (or she) is not coming over for light conversation over a cruller and a cup of coffee or to get the cat out of the tree. Those days are gone, and the tense divide between law enforcement and communities is growing. Thoughtful, substantive, healthy debate about the unfettered and unchecked expansion and influence of the most powerful institution in our communities — the police — has been shouted down by an unapologetic allegiance to the law enforcement machine. This machine operates now just as it was intended at the inception of policing in this country: as slave patrols formed to quell the perceived threat Black people posed to modern urban society.{1} 1 Jill Lepore, The Long Blue Line, The New Yorker, July 20, 2020. Over time, these slave patrols burgeoned into large, well-financed, militarized forces responsible for what historian Khalil Gibran Muhammad termed the “criminalization of Blackness.”{2} 2 Khalil Gibran Muhammad, The Condemnation of Blackness: Race, Crime, and the Making of Modern Urban America (2d ed. 2019).
The militarization of U.S. police departments started in 1909 with Berkeley police chief August Vollmer when he declared war on “the enemies of society.”{3} 3 Julian Go, The Imperial Origins of American Policing: Militarization and Imperial Feedback in the Early 20th Century, 125(5) J. Soc. 1193 (March 2020). Vollmer’s widespread militaristic influence on modern American policing was followed by Lyndon B. Johnson’s declaration of the “war on crime,” the redistribution of billions of dollars in arms recycled from past American-involved military conflicts to police departments, and hiring preferences favoring returning veterans whose wartime experiences and PTSD, it has been suggested, lead them to use firearms during citizen encounters more often than officers who have not seen conflict.{4} 4 https://www.themarshallproject.org/2017/03/30/when-warriors-put-on-the-badge. All of these developments brought policing in the United States to its current militarized state. The result: civic warriors have American communities, particularly minority communities, in a state of insecurity, fear, hypervigilance, and unrest.
Add the politization of police forces in the name of “public safety,” and the law enforcement machine further strengthened into a well-financed lobby resistant to change, standardization, or oversight. It is in this context that Black and brown communities have been targeted and terrorized through pretextual stops, no-knock warrants, unlawful arrests, unnecessary and intentional violent use of force strategies, public executions, and the overall degradation of their populations, particularly Black youth.
The role of prosecutors in maintaining this paradigm also bears mention. No incentive exists to pump the brakes on police brutality, misconduct, or corruption when there is a general disinterest, and in some counties outright refusal, by prosecutors to hold officers accountable for illegal conduct through arrests and prosecutions. Conflicts of interest evident in decisions to prosecute officers, particularly by elected state attorneys or district attorneys, and departmental self-governance with expansive officer “bill of rights” provisions, have allowed the “bad apples” to remain on the force. If unethical officers are neither reigned in nor have reason to believe there will be appropriate consequences if they are, they become emboldened. Patterns of misconduct become institutionalized and repeated by their successors.
A culture shift is needed. There is growing distrust within the communities officers vow to protect and serve. Transparency and accountability in policing represent fundamental values that should be accepted as the norm, not seen as mechanisms to unjustifiably attack those in uniform. When an officer commits an act that is perjurious, corrupt, dangerous, criminal, racist, or dehumanizing, it is not just the citizen under the boot — or the knee — who is at risk. The integrity of the entire system is undermined. We are a reflection of the conduct of our public servants. Perhaps most troubling, our moral values and democratic ideals are eroding because of this loyalty without limits.
The criminal defense community is uniquely positioned to lead in the reform space around law enforcement accountability and misconduct. Criminal defense lawyers are often the first to hear of clients’ experiences at the hands of corrupt officers. We have the ability and the obligation to challenge unconstitutional encounters, expose racist policing practices, and demand that officer misconduct be challenged and tested in court and in internal affairs proceedings. On a larger scale, collaborative legislative initiatives, strategic litigation, targeted communications strategies, and advocacy in our local communities are worthy efforts in this space.
Law enforcement misconduct initiatives touch upon a wide range of concerns. As a starting point, there is a real need for measures concerning the extent of the problem. We need data to illustrate that incidents like the deaths of Michael Brown, George Floyd, and Tamir Rice are not isolated situations in which “one bad apple” is to blame. Evidence is needed regarding the systemic problem of racism in this country that has, understandably, infiltrated police forces. Yet, institutional obstruction to efforts to obtain even basic information has been successful. Law enforcement pushback against collecting, maintaining, and producing the data in order to evaluate this industry has created serious impediments to progress in the area of reform. Law enforcement simply refuses to participate in information and evidence gathering that could be used to challenge, for example, annual demands for bigger budgets, use of force policies, or race-based decision-making in street-level encounters.
The data sets that have been compiled provide motivation for continued in-depth examination of law enforcement practices and procedures. For example, data collected regarding the issues of race and policing show that, out of the approximate 1,000 citizens killed each year by officers in the United States, Black men are 2½ times more likely than white men to be killed by police.{5} 5 F. Edwards, L. Hedwig & M. Esposito, Risk of Being Killed by Police Use of Force in the United States by Age, Race, Ethnicity, and Sex, 116 Nat’l Acad. Sci. USA 16793-16798 (2019). Yet, Black people shot fatally by police are twice as likely to be unarmed compared to their white counterparts.{6} 6 J. Nix, B.A. Campbell, E.H. Byers & G.P. Alpert, A Bird’s Eye View of Civilians Killed by Police in 2015, 16 Criminology Pub. Pol’y 309-340 (2017). We generally know this reality as criminal defense lawyers, but our input is anecdotal without facts and figures. We need to “show the math” in order to forensically disabuse the notion that each law enforcement incident of misconduct is simply a one-off unworthy of scrutiny, accountability measures for those responsible, or systemic reform.
NACDL has an important initiative underway that is a game-changing tool for use in courtrooms while also serving as a repository for officer misconduct data that advocates can use to aid in law enforcement reform measures in the future. NACDL’s Full Disclosure Project aims to disrupt the culture of secrecy that has historically been used to continue race-based policing patterns and practices. The Full Disclosure Project provides the tools for the defense community to track, expose, and alter police misconduct one officer at a time, one department at a time, and one jurisdiction at a time. One aspect of the project is the development of a database application where information about officers can be warehoused for use by NACDL members instantaneously in court. Cohorts involved with the project upload documents and information pertaining to an officer — such as depositions, trial transcripts, employment history, officer arrest history and patterns, past internal affairs investigations and findings, social media posts of concern, civil suits, media reports, body-worn camera footage, and police reports. The database is a repository for information about individual officers that can be used in court in defense of clients. This information can also be aggregated and analyzed to show patterns within a particular department, expose bad officers in an effort to keep them from being hired by other departments in the future, and create a record of abuses needed for the reform measures our clients and this country desperately need.
The Full Disclosure Project puts defense lawyers one step ahead of law enforcement officers who skirt the law and think their conduct will never see the light of day. Importantly, this effort is not without cost. This groundbreaking criminal justice tool is grant-supported, and funding is needed to ensure the full capabilities of this initiative are realized. Support this effort by donating to NACDL’s Foundation for Criminal Justice.
About the Author
Nellie L. King (NACDL Life Member) is the owner of the Law Offices of Nellie L. King, P.A. She practices criminal defense in state and federal courts throughout the United States and lectures on criminal legal reform and constitutional issues. She is a Past President of the Florida Association of Criminal Defense Lawyers.
Nellie L. King
Law Offices of Nellie L. King, P.A.
West Palm Beach, Florida
561-833-1084
Nellie@CriminalDefenseFla.com
www.criminaldefensefla.com
