Too often public officials pay lip service to the idea of police reform. In the wake of the George Floyd killing we heard numerous federal, state, and local officials talk about rooting out bad apples in the police department. Now, Letitia James, the Attorney General of New York has decided to take the extraordinary step of bringing suit against the New York City Police Department and several of its members stemming from illegal and excessive force used against citizens during the New York City George Floyd protests.
The suit itself is not extraordinary. It is a claim for damages under section 42 USC 1983 which holds law enforcement officials responsible for damages caused when they use improper and excessive force. This is the same statute that virtually every individual who sues a police officer or a police department uses. What is extraordinary is that the suit is being brought by the New York Attorney General’s office instead of an individual plaintiff. The Attorney General’s office decided to use the legal theory of paren patriae, to vindicate the rights of three individuals who were unlawfully beaten by police officers. Under that theory, the state is empowered to start a lawsuit when it seeks to protect a public interest such as the health, safety, and welfare of its citizens.
In doing so, James argues that there is a pattern and practice of illegal behavior on the part of New York City police when it comes to handling peaceful protesters. The history of police misconduct during protests is well documented in New York City. In 2003, the New York Civil Liberties Union (NYCLU) documented more than 198 instances of police misconduct against peaceful protesters during an antiwar protest. In 2004 at the Republican National Convention, more than 200 complaints were made to the NYCLU of police misconduct and in 2011 at the Occupy Wall Street protests nearly 150 complaints of police abuse were made. Fast forward to the year 2020 and the George Floyd protests where the story is exactly the same; senseless unwarranted beatings against individuals who were peacefully protesting, individuals who were government sanctioned observers and individuals who were on the scene to provide medical attention.
During a press conference announcing the suit, James made the point that the city has paid out enormous sums of money over the years and excessive force lawsuits and yet despite monetary sanctions, oversight committees and command changes there has been virtually no change in the way that New York City police officers approached protesters. This is not simply a New York City problem; it is the problem with policing nationwide. Lawsuits, even if they are successful, are paid by the municipality and out of citizens’ tax dollars. Where there is no financial sanction against individual police officers, there is no incentive for a change in behavior.
The New York Attorney General’s lawsuit highlights what most of us who are observers of police culture understand; that despite bias training, sensitivity training, de-escalation training, use of force training and every other training offered to police officers to incentivize lawful behavior, it hasn’t worked. And it hasn’t worked, quite frankly, because from the police officer’s perspective there is no reason for change.
Police officers enjoy protections that very few others in society have. The doctrine of qualified immunity which says that unless the officer’s improper act has been clearly established to be improper primarily in case law, an officer cannot be held responsible for his act of excessive force, shields the vast majority of officers from liability. And if by chance qualified immunity doesn’t work, any award of damages based upon the officer’s conduct is going to be paid by the city. Even where juries have specifically said that they want to punish an officer through punitive damages, most municipalities will pay that tab as well.
Police unions have emerged as one of the biggest obstructions to justice. Most police union contracts are replete with terms that make it almost impossible to discipline and remove an offending police officer. And at a time when proactive identification of officers with a history of abuse is sorely needed, unions universally oppose proactive reforms. Simple reforms such as random drug screens for police officers are vigorously opposed by most unions. Airline pilots are randomly tested for drug use because of their awesome responsibility to human life. How is it that we fail to extend the same mandate to the only group that we give a license to use deadly force and take human life? It could very well be because we don’t value the lives most frequently taken by police officers—Black men and women.
Now, the recent insurrection in Washington DC has highlighted another long-standing problem. There is a pervasive presence of White supremacists in our nation’s police forces. There are far too many documented instances of local police officers showing up at White supremacist functions, rallies, and gatherings. This infiltration of White supremacists and nationalists could explain, in part, the resistance to true reform when it comes to policing communities of color. Simple measures such as regular inspection of police officer social media and regular psychological examination would go a long way toward identifying these officers. The FBI has been adept at identifying the patterns of ideological radicalization for both terrorists and hate groups. Those tools need to be employed by our individual police departments.
History has shown us that the negative behaviors we see in our police departments cannot be “trained” away. They require radical restructuring. And that is what makes the New York Attorney Generals lawsuit important, because James has taken the extraordinary step of naming both the Mayor and Police Commissioner for their failure to impose radical change. Individual victims of police brutality suffer the effects on the street, but true accountability must start at the top.
NY Attorney General Letitia James has thrown down the gauntlet. She clearly understands that the role of the Attorney General is not simply to be the chief law enforcement officer of the state but more importantly to protect the rights of the citizens of the state. There is a special responsibility to protect those who are most vulnerable to police violence. The Black community has borne the full brunt of police brutality. For years, people of color have been looking for a champion and a defender. In Letitia James it appears they finally found one.
Robert Tarver is the NorthStarNews.com Legal Analyst and a former prosecutor and television media legal commentator now in private practice in New Jersey.
