Obstacles and Opportunities in the Fight for Police Accountability (ep. 58)

August 1, 2019
mytubethumbplay
%3Ciframe%20width%3D%22100%25%22%20height%3D%22166px%22%20scrolling%3D%22no%22%20frameborder%3D%22no%22%20allow%3D%22autoplay%22%20thumb%3D%22sites%2Fall%2Fmodules%2Fcustom%2Faclu_podcast%2Fimages%2Fpodcast-at-liberty-click-wall-full.jpg%22%20play-icon%3D%22sites%2Fall%2Fmodules%2Fcustom%2Faclu_podcast%2Fimages%2Fpodcast-play-btn-full.png%22%20src%3D%22https%3A%2F%2Fw.soundcloud.com%2Fplayer%2F%3Furl%3Dhttps%253A%2F%2Fapi.soundcloud.com%2Ftracks%2F659524859%26amp%3Bcolor%3D%2523000000%26amp%3Binverse%3Dfalse%26amp%3Bauto_play%3Dtrue%26amp%3Bhide_related%3Dtrue%26amp%3Bshow_comments%3Dfalse%26amp%3Bshow_user%3Dfalse%26amp%3Bshow_reposts%3Dfalse%26amp%3Bshow_teaser%3Dfalse%22%3E%3C%2Fiframe%3E
Privacy statement. This embed will serve content from soundcloud.com.

Last month, protests erupted when the Justice Department announced it would not bring civil rights charges against the NYPD officer who put Eric Garner in a fatal chokehold in 2014. Mr. Garner's death was one among countless examples of deadly police violence toward Black and brown people. Yet despite a growing outcry, most officers implicated in civilian deaths have escaped punishment. Carl Takei, a senior staff attorney at the ACLU who litigates police practices, joins At Liberty to discuss the way forward in the fight for police accountability.

Direct Download

EMERSON SYKES
[00:00:05] From the ACLU, this is At Liberty. I'm Emerson Sykes, a staff attorney here at the ACLU, and your host. Calls for accountability in response to police violence have grown in recent years. Last month, protests erupted when the Justice Department announced it would not bring civil rights charges against the NYPD officer who put Eric Garner in a fatal chokehold in 2014. Mr. Garner's death was one among countless examples of deadly police violence toward Black and brown people. Yet despite the growing outcry, most officers implicated in civilian deaths have escaped punishment.

Here to talk about police accountability is Carl Takei, a senior staff attorney here at the ACLU who litigates police practices and advocates for bias free and constitutional policing. Among other efforts, he's involved in a lawsuit to shed light on the police shooting late last year of E.J. Bradford in Hoover, Alabama, while he was trying to protect bystanders from crossfire.

Carl, thanks very much for taking time to speak with us. Welcome to the podcast.

CARL TAKEI
Glad to be here.

EMERSON
So, Carl, I want to start off by talking about the case of E.J. Bradford. Can you remind us of the basics of that case and where it stands now?

CARL
Yeah. So the killing of E.J. Bradford is another situation where there was a black man, who was acting as the “good guy with a gun” but got shot by police. There was an active shooter situation going on in a mall in Hoover, Alabama, and E.J. Bradford was there. He had a firearm that he was licensed to carry, and he began running away from the sound of the shooting, then realized that one of his friends was back in the direction of the shooting. He turned around, he drew his gun, and he started running back. At that point, a police officer from the Hoover Police Department, who was responding to the active shooter situation, saw E.J. Bradford running and within seconds, and without warning, shot him from behind and killed him.

EMERSON
[00:02:12] Wow. So this is a really fascinating case because so often, what we talk about is police shootings of unarmed Black and brown people. And this is a case where, it kind of plays right into that narrative touted by the NRA and the president and many others that actually what we need is more guns, and guns in the hands of good guys is actually going to help solve this problem. But what this case really shows is that what they mean is good white guys with guns, not just good guys with guns. Can you talk about the complications of having an armed victim here?

CARL
Right. So there's been a resounding silence from the NRA and other organizations that tout themselves as gun rights advocates, in each of these situations; not just in the killing of E.J. Bradford but also in the killing of Jemel Roberson who was working as a security guard outside of a bar in Illinois. When police responded, they saw that Jemel Roberson was holding a gun in the course of detaining somebody who had been the source of the fight that the police were called about.

EMERSON
Wow.

CARL
And they shot him. And also, you can look back at the case of Philando Castile who was licensed to carry a firearm. He had all of the papers in his car when he was stopped by police. He did everything that you were supposed to do when you have a licensed firearm in the car, he told the officer about the presence of the gun. And yet he was shot, too. And over and over again the NRA and these other gun rights organizations have either said nothing at all or given very muted responses. In the case of Philando Castile, for example, the NRA said, “Oh well, he should have been carrying an NRA Carry Guard card.” And I question, of what use would it have been for Philando Castile to have an NRA Carry Guard card in his wallet? What would have happened if he had tried to pull that out?

EMERSON
[00:04:05] I can only imagine. I mean, coming back to the case of E.J. Bradford, of course there are a number of examples, but this is the one I believe you're working most directly on. What steps are you trying to take right now? As I understand, right now you're trying to get the government to share information about the case.

CARL
Right. We are seeking the body camera footage, the surveillance camera footage, and a number of other documents related not only to the events of the police shooting of E.J. Bradford but also the decision by the attorney general to take over the investigation. This was a highly unusual decision.

Now in most situations, we actually advocate, as a systemic matter, that investigations of police shootings not be carried out by the district attorney's office in that jurisdiction because of the tight connections between the police and the local D.A.’s office. But here it was a very weird exception. It is actually the first time in decades that the attorney general in Alabama has taken the investigation and prosecution decisions away from the local district attorney. That local district attorney happens to be Danny Carr, who is the first Black person ever elected as D.A. in Jefferson County.

EMERSON
Wow. Well it sounds like what you're trying to do is put together as much evidence as you can, as many facts of the situation as you can, in order to build a potential case. But it's an uphill battle to say the least. Can you talk about some of the institutional and structural barriers to holding police accountable in these types of situations?

CARL
[00:05:43] Yeah. So there are a number of barriers and the first is actually the underlying standard for use of force. That is, under a Supreme Court decision, the “Graham standard” governs all uses of force, everything from non-lethal uses of force to lethal uses of force. That standard is “objective reasonableness.” So it means that an officer can use whatever force an objective officer in the circumstances would consider reasonable. It's not a “necessity standard” which is an important distinction. So it means that if an officer acted in a way that killed a person unnecessarily, but another officer looking at that situation is able to judge and say, “Well that was reasonable,” it means that there's no legal accountability.

EMERSON
Well, we would hope that when we license folks to carry firearms and give them authority to detain people and all of the other things that the police are allowed to do, we would hold them to a higher standard. But what we're hearing here is that the standard is actually quite low. And can you also talk about some of the other legal barriers? I know qualified immunity is a huge one.

CARL
So qualified immunity is another barrier that is layered on top of that underlying legal standard. Under qualified immunity jurisprudence, which is something that has developed over the last several decades in the Supreme Court, it's not something that's embodied in statutes or the Constitution, you basically have an additional barrier: that even if the court decides that the actions of the officer violated the Constitution, that officer still cannot be held liable for damages unless no reasonable officer in the circumstances would have believed that what they were doing was lawful.

EMERSON
Right. So it's not just a “reasonableness” standard but nobody would have thought that this was possibly a mistake. And then, as I understand it, there's all these absurd situations in terms of qualified immunity where the officer has to have specific notice that the exact situation that they were in had specific rules governing their actions. So if it's a novel situation and as much as, you know, some random factor about this situation was different, a different time of day or whatever it is, if it's not clear from previous cases that this is unlawful conduct, the officer can still be let off.

CARL
[00:08:12] Yes that's right. So this is something that the ACLU, one of our colleagues Emma Andersson recently filed a brief in the Baxter case seeking cert in the Supreme Court over a situation where Alexander Baxter was sitting with his hands in the air and had already surrendered to police and an officer sicced a police dog on him. And a lower court held that that was protected by qualified immunity. And there are all of these cases like this, where police acted in ways that should have led to some form of accountability. And yet because of the qualified immunity rule nobody was held accountable.

EMERSON
So in that case, the action was unreasonable. Other officers may have even thought that the action was unreasonable but because that exact fact pattern had not been presented before, the officer was let off the hook.

CARL
Right. There are so many examples of this. I can actually point to one from just a couple of weeks ago in the 11th Circuit, Corbitt v. Vickers, where a group of police officers were chasing after one individual who was suspected of a crime. That individual crossed over onto the property of a family, the Corbitt family. There were kids playing in the yard, one of the parents was outside. The police officers ordered everybody, adults and children, onto the ground. And at that point everybody was on the ground, the family dog came out from under the house. The officers shot at the dog once, the dog retreated back into the house.

[00:09:54] But then after a few moments came back out and approached the family members again because it was the family dog. And the officer, with one of the children 18 inches away from him, shot at the dog, missed, and hit one of the children. And the 11th Circuit held that that was protected by qualified immunity and that the status of the child as an innocent bystander actually made the case more difficult, not less difficult to decide because most of the cases involving these kinds of shootings involve somebody who is being arrested or who is the target of the investigation.

EMERSON
Wow. Well, is there any hope that qualified immunity can be reformed? I know you mentioned the efforts by Emma Andersson and others. Is there any hope that this really problematic and flawed doctrine can be fixed?

CARL
Yes. In Kisela v. Hughes, Justice Sotomayor gave a very strong dissent. This is a case where Amy Hughes was the subject of a welfare check call. So this is when police are called because there's somebody acting erratically, oftentimes these involve mental health issues.There were three officers who responded and, it was a report about her attempting to chop down a tree using a kitchen knife, which has all of the earmarks of a mental health issue.

Three officers responded. They saw her carrying the knife. She was calm. The knife was turned away from the officers, at her side. She was not making any threatening gestures. And the officers all drew their guns. They ordered her to drop the knife. Two of the officers were planning to continue talking to her to try and de-escalate the situation. There are some underlying problems with the fact that they were doing this with guns drawn and barking orders. That is not what you're supposed to do.

EMERSON
Not exactly deescalation.

CARL
[00:11:51] Right. But that was their plan. A third officer, without making any warnings, dropped to the ground and shot four times through the fence at Amy Hughes. Fortunately, she lived. She was seriously injured though because of the bullets, and this case went to the Supreme Court. Again, a majority of the court held that the officer was protected by qualified immunity. But Justice Sotomayor wrote, “If this account of the officer's conduct sounds unreasonable that is because it was. And yet the court insulates that conduct from liability under the doctrine of qualified immunity.”

Justice Sotomayor is not the only justice who is becoming more skeptical of the qualified immunity jurisprudence. Clarence Thomas, actually, has expressed his own growing concern over the qualified immunity rule. And there is a broad cross-ideological coalition, including us and the Cato Institute leading along with, some of the broadest sets of unlikely allies together, who are all urging the court to either abandon qualified immunity or significantly modify it.

EMERSON
Well, we can hope for the best. I mean, I think, qualified immunity, is clear to me that it needs to be relegated to the dustbin, but I hope that the court will agree.

So there are all these legal challenges and barriers to accountability and I'm sure there are many more that we could spend all day talking about, but I also want to get to the other big piece of this picture, which is bias. Because as we talked about, these victims are disproportionately Black and brown. And there are these structural issues between police and communities of color. But then there's also sort of this wrinkle that's presented by the case of Officer Noor in Minnesota. Can you talk about the role that bias plays in addition to these legal challenges?

CARL
[00:13:47] So with Officer Noor in Minnesota you had a departure from the usual situation: a police officer killing a Black or brown person. Instead, Officer Noor, without cause, killed a white Australian woman, Justine Damond, and he was rightly convicted of murder. But the line of cross-examination that the prosecutor took was asking, “Well, you know, what about her, the pajamas, the blond hair, was the threat?” And all of that brings up all of these very complicated issues about white victimhood and especially white female victimhood. Especially considering that officer Noor is not only a Black man but a Black, Muslim man.

EMERSON
Well it seems as though bias also plays on multiple levels, right? Like there's implicit bias that we all hold, including police officers, that may influence their split second decisions, and then there's bias on the part of police leadership as to how they interpret and react to actions, and then bias within the court system, as well. Do we have any strategies for combating this type of societal bias? Can we attack the legal structures without dealing with the underlying societal problems, or do they have to be done in tandem?

CARL
Well, so a lot of this is not just based on the individual bias of particular officers. You know, of course, it is important to have things like implicit bias trainings. It is important to fire officers who express white supremacist beliefs. You know, there are a number of officers who got caught out because they were posting white supremacist, racist, sexist statements on Facebook.

[00:15:39] But this is not just an individual issue; it's also a systemic issue. And it's one that is baked into even issues like how police are deployed and where they are deployed. That's one of the big concerns we have, for example, about predictive policing algorithms. They are based on past patterns of where police have patrolled and where they have arrested people. And all of that has reflected an intense focus on, in particular, poor Black and brown neighborhoods that have historically been the focus of a great deal of police attention, even though much of the conduct that folks are getting arrested for in these neighborhoods is actually the same conduct, you know, drug use, for example, that goes on in wealthier, predominantly white neighborhoods but does not attract police attention. And so, there's a real risk here that we will not only continue these same biased patterns of enforcement but sort of “tech-wash” them by running them through an algorithm.

EMERSON
Yeah and that's an issue that we've talked a bit about on some of the other podcast episodes. So, I mean, if we're thinking about officer level accountability, police department level accountability, you talked about the role of the DA and of the state attorney general, can you say just a word about the role of the federal government, and specifically the Justice Department? I know that was the reason for the most recent protests around Eric Garner.

CARL
So, under this administration, there's been a very clear message: that the Justice Department is not going to intervene in police violence and in addressing any of the systemic problems that we have with fair and constitutional policing in this country. Under Attorney General Sessions there was a tremendous pull back from the use of consent decrees, which are one of the most effective tools that the Justice Department has to try and reform troubled police departments. That also filters down to individual cases.

You brought up Eric Garner. It has been five years since Officer Daniel Pantaleo choked Eric Garner to death, and the Justice Department took five years to decide that it was not going to prosecute Officer Pantaleo. This was sort of a football that went back and forth inside the Department. There was momentum to bring charges under the Obama administration, but all of that has been stalled, and ultimately stopped by the Justice Department leadership that was put in place by President Trump.

EMERSON
[00:18:19] Well, I want to maybe transition from talking about the breadth and depth and complexity of the problem of police accountability to some of the measures that we're using to push back. Can you start out by telling us some of the coalition partners and some of the grassroots organizations that you've been working with to try to increase police accountability?

CARL
Yeah. A key example is in California where both houses of the legislature just passed, by overwhelming majorities, a bill called AB 392, and this is legislation that we anticipate will be signed by the governor any day now that will raise the standard for lethal use of force in California. That means that instead of being governed by this objective reasonableness standard, it will be governed by a necessity standard that takes into account the entire course of the interaction. And that's especially important because it means that when courts look at whether the use of lethal force was necessary, they have to take into account the opportunities that the officer had to de-escalate but didn't take.

And this is legislation that the ACLU supported and that was led by the families of those who have been killed by police in California. So, it was actually an incredibly moving emotional scene: every time that this bill went up for a committee hearing there were lines out the door of people carrying pictures of their family members who had been affected by police violence, lining up to testify about their experiences and why raising the legal standard, which otherwise might be an arcane issue, was so personally important to them.

EMERSON
[00:20:02] It's quite a powerful image, and it begs the question, you know, if you look at the news, especially the mainstream media, you might get the impression that things are actually getting worse in terms of police violence towards Black and brown communities because it's getting more and more coverage and more and more talking heads are discussing it. But this has been a longstanding issue from the beginning of this country, and Black and brown communities have been talking about it forever. What do you attribute this sort of change in the national narrative around this issue to?

CARL
A big part of it is the fact that everybody is carrying around a cell phone in their pockets and that cell phone has a camera. And it means that there is no longer room for white people, who are not experiencing these types of situations, to doubt what's going on because they can see what's happening, and, it's unfortunate that that is what it took for a large portion of the country to understand what has been going on for decades. But it is good, now, that there is that broader awareness that police violence is such a serious issue and that it is driven, in many ways, by police culture, rather than being something that can be blamed on the victims of police violence

EMERSON
That is a really important reminder of the importance technology can play on both sides of this equation. And I want to get to some of the positive advocacy that you've done because part of this is holding police officers accountable and departments accountable for past conduct, but I know there are also some affirmative steps that you hope police departments will take. Can you talk about some of those positive practices?

CARL
[00:21:42] So one example is the work that we've been doing around “living while Black” calls to police. This is something that received significant attention, starting with the Starbucks incident that you may remember in Philadelphia. And we have developed a model policy for college campus police. And there is an important strategic reason why we began with college campuses. One, there are a number of situations that have come to light where a college campus police are being weaponized against the very students and faculty that these campus police departments were explicitly created to protect.

And it is a situation that is much easier to change than a large municipal police department, because in a university or college setting everybody in the police department, everybody in the dispatcher's unit, ultimately answers to the college or university president. And in each of these campuses, the college or university is one that has made statements about their dedication to diversity and equity. And so it really is in the hands of a single person, or a small handful of people, to take the steps necessary to make those statements about diversity and equity a reality, rather than allowing this campus police department to be used as a weapon against their Black and brown students faculty and staff.

EMERSON
It's easier to convince a chancellor than the Alabama attorney general, for example.

CARL
Right. And so we've actually had some success in that area. I represented Oumou Kanoute, who is a student at Smith College. You may remember that she was working there for the summer for a program mentoring high school students. During a break in that program, she sat down to have lunch in one of the college common rooms and a Smith College employee called the police on her. This incident, and the ACLU getting involved, created an opportunity for Smith College that fortunately they chose to take, of really examining their policies and how those policies had allowed this situation to play out in the way that it did.

[00:24:15] So they've now issued new guidance to their staff members about under what circumstances they should or should not call the campus police, and they have issued new policies governing how campus police respond to these calls. And that's important because the college’s own data showed that these types of suspicious person calls disproportionately affect Black people, in particular, who are on Smith College's campus. And our hope is that with the adoption of these new policies and new guidance, they will change those statistics and make it so that Black and brown people who are students and work at Smith College can truly feel comfortable and know that their campus police department is not going to be weaponized against them.

EMERSON
Well, it makes a lot of sense to focus on the college campuses for the reasons that you mentioned, but coming back to the big municipal police departments, I'm guessing that most of them are quite antagonistic when you try to hold their officers accountable. But I'm wondering, are there any allies that you've been able to find in police departments? What have the interactions been like with police departments when you try to call them out for past behavior?

CARL
So there's very little uniformity. One of the things that many people don't realize is just how many police departments there are across the country. If you combine both city police departments and sheriffs, there are more than 18,000 different law enforcement agencies across the country. The majority of them have fewer than two dozen employees. So, this is something where change plays out in very different ways in different parts of the country and even different cities within the same county.

[00:26:11] There are some police chiefs around the country who are dedicated to changing the way that police operate in this country. For those police chiefs, sometimes they have support from within rank and file officers. Many times they do not. And that's one of the very difficult issues: that a lot of officers and a lot of police officer unions around the country are major barriers to creating a better police culture and creating more mechanisms for officer accountability.

EMERSON
Well, maybe as a final question: The problem is vast, there are thousands of police departments, and I wonder, what can individuals do? Is this a problem that we have to solve police department by the police department? You mentioned some potential fixes from the Supreme Court, at least in terms of the doctrine, but the culture is going to have to change from the ground up. What can people do to push back against this impunity that is often given to police officers?

CARL
As we've been saying, policing is an intensely local issue, so it means that you can affect change in your local police department, in your local sheriff's agency. And, you know, of course, there are things that can be done on the larger stage. We are active in federal advocacy and in legislative work at both the state and federal level. But all of that depends on the ability of movements on the ground, in communities around the country to be partners with us and also to allow us to be led by those grassroots groups. There has been tremendous work done by Black Lives Matter and other grassroots organizations that are rooted in Black and brown communities and-tremendous leadership by those groups.

[00:28:08] One of the things that we're doing from ACLU national is figuring out what strategies we can adopt that will increase the impact of the work that is being done on the ground by these small local grassroots organizations. And so I actually have a lot of hope for the future of getting changes to how policing is conducted in this country and making it so that we have a profoundly different culture of how police operate and also, in what circumstances they intervene in this country.

EMERSON
Well, Carl, I really appreciate you taking the time to speak with us about these really important issues, and thank you for all of your work.

CARL
Thank you. Glad to be here.

EMERSON
Thanks very much for listening. If you like this episode, please be sure to subscribe to At Liberty wherever you get your podcasts and rate and review the show. We really appreciate the feedback. ‘Til next week, peace.

Stay Informed