Intersections, on encountering police

When I lived in New Haven, a young man on a motor scooter crashed into my parked car at an intersection in the Wooster Square neighborhood. I was walking home at the time, and turned the corner as a police officer was writing up some notes. The officer asked if I knew the owner of the car, I said it was me, he told me that the “kid” was going up a one-way street in the wrong direction and, when he saw the officer, tried to speed away and lost control, crashing into my car. The officer told me that he had found drugs on the young man.

newhaven

An intersection in New Haven. (Google Maps)

I fidgeted a lot, worried about the man in the back of the police car. I tried to look at him from where I was standing, to see who he was, but I didn’t want him to feel like I was gawking. New Haven doesn’t have a history of good race relations or of good police conduct. I wanted him to feel my worry and my solidarity, but I wasn’t sure how to convey it. I wanted to ask the officer if I could not press charges, but I knew that neither possessing drugs nor driving the wrong way were crimes “against” me, but against the state. I wanted to ask the young man if there was anyone I could call for him, anybody I could tell about what happened. I was nervous around the officer; I did none of these things. I stood by as he continued talking.

As we were standing there, a middle-aged white woman driving by slowed down and rolled down her window. “THANK YOU THANK YOU THANK YOU!” she shouted at the officer. He waved at her. They might have talked for a moment. She drove away.

I was not thankful for the arrest of another one of New Haven’s black youth. The young man in the backseat of that squad car certainly wasn’t thankful either. But her grateful outpouring for the policing presence was probably enough for the three of us. This experience – the blind appreciation for policing the neighborhood – is ingrained in my memory.

The lived experiences of policing are so, so different depending on where you live or what you look like. The intersections of state and society are not the same for everyone. In every place I’ve lived in, I’ve seen this. SB 1070 in Arizona. Stop and frisk in New York. A one-way street in New Haven. The intersections at which police and everyday people meet, depending on the city, the neighborhood, the block, can be polar opposites.

*  *

gilbert

A street in Arizona. (Google Maps)

When I was a teenager, I was driving home from somewhere. A police car drove past me, and I saw it flip a dramatic U-turn in my rear view mirror. I drove slowly, trying to let him pass to whatever demanded his attention. He didn’t pass. I turned into my neighborhood, and he followed. I decided I would stay on a road with more traffic, and pulled over by the neighborhood mailbox instead of going to my house. The officer pulled over behind me. His lights weren’t on.

I hesitated. My parents – like many parents of sixteen-year-olds – had taught me what to do when pulled over by a police car, but parents don’t usually teach you what to do when an officer follows you for half a mile without turning the lights on and then pulls over behind you when you stop.

Trying to act casual, I got out of my car and I picked up the mail. I stood by my car. I think a few people drove by, but I don’t remember. I do remember wishing that my parents or one of my friends would just happen to be passing. Someone who knew me. I remember standing on the sidewalk, feeling vulnerable, immediately regretting that I was not still in my car. The police officer rolled down his window and looked at me like I might have something to say, but he remained silent.

“Is there a problem, officer?” I asked. I remember asking it like that because I think that’s what they say in movies. He gestured towards his laptop and told me he was checking to see if my car was stolen. He didn’t mention it matching a description or a recent call or similar plates or anything. After a pause, he said everything checked out, and he drove off. I lingered for a while before getting back in my car and driving home, unnerved.

That was before SB 1070, but police have been profiling long before it was law. (I grew up half-white, half-brown in a more-than-half-white town, county, state). This was before I had really come to realize how easily a man in a car with lights on top of it – even if the lights weren’t on – could make you feel like you had done something wrong, like you were in trouble, like you might not make it home. I learned quickly. I learned around the corner from my house. (And that was in a middle class, white neighborhood in which I wasn’t stopped, nor arrested, and no weapon was drawn on me – a huge sign of privilege in and of itself).

*  *

I often think about the guy with the scooter. I wish I had done more, not knowing exactly what more I could have done. Once I think about him, I begin to think about my own encounters with police, as a brown-skinned driver in Arizona, or as a protester in New York (another story, another time), and think about how they compare to my experiences with police when I was in a car accident, or when I needed directions downtown somewhere. I often think about how these situations shift, how much depends on so little. Every encounter depended on what intersection it happened at (and who was involved). Most of my encounters with police have involved no confrontation, they’ve been professional, and no harm was caused. But it’s the moments of unease that remain with me, and even my encounters have been remarkably unremarkable. I was followed once, and I saw someone get arrested. I was wrestled to the ground in a protest once, but I got away scared but relatively unscathed. But these moments are what I think of when I think of police. People remember their vulnerability more than any run-of-the-mill interaction.

I’m not a victim of police violence, that’s for sure. I’ve only ever been inconvenienced and a little unnerved. I’ve never been in the real danger that whole segments of our society know all too well. Policing happens everywhere, but it looks different. I’ve often thought about writing about these anecdotes, but I never know what to say about it all. I’m typing this now because I read about what happened to Steve Locke a month ago.

Locke is a professor in Boston, and he was stopped by police while getting lunch on his way to class because he fit the description of someone who broke into a nearby house. The description was essentially black-person-in-winter. The whole account is worth reading, but this excerpt is what got to me:

Something weird happens when you are on the street being detained by the police.  People look at you like you are a criminal.  The police are detaining you so clearly you must have done something, otherwise they wouldn’t have you.  No one made eye contact with me... An older white woman walked behind me and up to the second cop.  She turned and looked at me and then back at him.  “You guys sure are busy today.” I noticed a black woman further down the block.  She was small and concerned.  She was watching what was going on.  I focused on her red coat.  I slowed my breathing.  I looked at her from time to time. I thought: Don’t leave, sister. Please don’t leave.

The difference between the two passersby is a crucial gap in society. Those who feel protected and those who feel vulnerable. Those who admire police officers (and want to thank them blindly and profusely) and those who fear them. Those who are thankful that they can live their lives in safety because of those who serve and those who just want to live their lives, but can’t, for the same reason.

Experiences with law enforcement are different depending on the people and places involved. But the moments that stick – to me and to others – are those encounters tense with vulnerability and fear. Some, like me, know these moments from a rare experience thanks to our privilege. Many don’t know them at all. But a number of people also know these moments all too well.

This fundamental difference in how we live our lives is an obstacle to real change that can improve the lives of those on the other side of the law’s enforcement. I was nervous for the person in the backseat that day in New Haven, but what I was feeling was probably nothing compared to what he was dealing with. The woman who drove by knew nothing about the situation, but she blindly expressed gratefulness to the uniform standing next to me. These different perspectives, on Centre Street in Boston, on Hughes Place in New Haven, on every street in the country, are something that I can’t get out of my head. If we are going to be able to create a society where there is less police oppression of minority communities, we need to make an attempt to understand how those communities experience the police presence.

Advertisements

Straight to Court: The Case for Private Prosecutions

If there is one issue that has marked American society in the last year, it has been a lack of accountability for violence against people of color – especially by law enforcement. Men like Michael Brown, John Crawford III, and Eric Garner all died at the hands of police officers who were never even indicted, let alone tried and found guilty in a court of law. The rampant impunity that negligent police officers enjoy has been the rallying point for many protests and demonstrations since last summer.

The process from investigation to indictment to trial is usually not one that favors the alleged perpetrator, but mounting evidence shows that the system protects its own as multiple police officers escape accountability for actions both minor and egregious. In the United States, if anyone commits a crime, it is up to the state to hold them accountable – even if agents of the state are the ones who stand accused. This is part of a long tradition in which crimes are seen not only as crimes against a particular victim, but against the state and society itself. State prosecutors punish suspected criminals by defending the rule of law that binds our society together, not by merely seeking justice on behalf of victims.

This is one of the ideals on which our justice system rests, but in practice this turns out to be a legal version of “#AllLivesMatter” as the victim all but disappears in cases labeled “State v. Defendant,” leaving the quest for justice in the hands of a state attorney. These public prosecutors don’t always dole out justice evenly, however, and throughout history minority victims have faced huge obstacles in gaining any modicum of justice. Recently, in police killing after controversial police killing, news cameras have awaited announcements from county prosecutors and state attorneys who have decided not to file charges. More often than not, the state has failed to hold itself accountable.

20141125_203151-1

Black Lives Matter demonstrators in NYC last November.

This is not surprising. On top of the racial disparities of the Unites States criminal justice system, the fact is that prosecutors work alongside police departments on a regular basis, and as such we should not expect them to suddenly be willing to crack down on police violence. Prosecutors have tremendous power at the early stages of an investigation if they want an indictment, but recent history shows that this isn’t always the goal. St. Louis County Prosecuting Attorney Bob McCullough showed as much when he shepherded Darren Wilson’s case into non-existence and then reprimanded the media and demonstrators rather than make any attempt to discipline a police force responsible for preying on the residents of Ferguson.

Even in the rare instance that prosecutors do indict police officers, they face incredible obstacles and costs. When District Attorney Kari Brandenburg first began considering handing down indictments for two police officers for shooting and killing a homeless man in Albuquerque, police began investigating her for allegedly bribing witnesses related to an incident involving her son in an attempt to “destroy [her] career.” Later, when Brandenburg finally did issue the indictments, she immediately paid for it. The next day, when a prosecutor from her office went to investigate a different, unrelated murder, police denied her entry to the scene, citing a “conflict of interest.” Such blatant intimidation and brazen attempts to deny victims justice is only possible because police have so much power in American society and the U.S. criminal justice system.

In the face of such obstacles, we should expect most prosecutors to default to supporting police departments, regardless of the evidence or public opinion. Mass demonstrations, civil disobedience, petitions, speeches, and even a direct line to City Hall have failed to change the course of police impunity in New York as well as Ferguson. Very rarely are indictments handed down for police officers who kill people in the line of duty, and even more rarely are they found guilty.

In the absence of criminal indictments, the families of victims have tried to seek some semblance of justice in civil court.  Just in the last year, the relatives of Michael Brown, Tamir Rice, John Crawford III, Eric Garner, Ezell Ford, and many others have filed or considered filing civil suits or wrongful death claims against those responsible for their loved ones’ murders. However, while these lawsuits may win the families of victims some compensation for their loss, there is little done to actually hold their killers to account.

Protesters in Union Square this April.

Protesters in Union Square this April.

When civil suits are filed against police officers for excessive force or other forms of misconduct, the police officers themselves seldom pay. The penalty often doesn’t even come from the police department at all, but rather from the city’s municipal coffers. The Baltimore Sun released an investigative piece last September – spread widely in the aftermath of Freddie Gray’s murder in Baltimore this spring – that found that over one hundred people have won court settlements against the city’s police department in the last four years alone (this represents only one third of the 317 lawsuits filed against Baltimore police in the same time period). The city spent $5.7 million in pay outs in addition to $5.8 million in legal costs defending officers.

Little to none of this money comes from the police officers in question, however. According to the Baltimore Sun investigation, “an agreement between the city and police union guarantees that taxpayers will pay court damages” in cases in which officers were following department guidelines on the use of force, and “in such settlements, the city and the officers involved do not acknowledge any wrongdoing.” There is some degree of restitution, but no accountability and no incentive for police officers to change their behavior. From the police officers’ standpoint, even when found guilty, nothing changes.

Most recently, the City of New York reached a $5.9 million settlement with the family of Eric Garner in order to avoid a civil lawsuit. However, this money won’t come from the police department, and as a result will not give any disincentive to the NYPD – even though the officer who killed Garner, Daniel Pantaleo, did so using a chokehold maneuver banned by the department. Pantaleo remains unindicted and at his desk job, and other officers are well aware that there is no punishment for breaking the rules and killing unarmed civilians.

In a study [pdf] of such lawsuits across the country, legal scholar Joanna C. Schwartz found that “between 2006 and 2011, in forty-four of the seventy largest law enforcement agencies across the country, officers paid just .02% of the dollars awarded to plaintiffs in police misconduct suits. In thirty-seven small and mid-sized law enforcement agencies, officers never contributed to settlements or judgments.” In a summary of her findings, Schwartz states that during this five year time span:

Governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement. Law enforcement officers in my study never satisfied a punitive damages award entered against them and almost never contributed anything to settlements or judgments— even when indemnification was prohibited by law or policy, and even when officers were disciplined, terminated, or prosecuted for their conduct.

With such protections in place, filing civil suits against police officers only hurts the cities that employ them. While there is hope that such actions would encourage cities to discipline such officers and do more due diligence in police training, hiring, and other responsibilities, this isn’t always the case. In Baltimore, while some officers were forced to resign, many kept their jobs even after being found liable in court because the department’s internal investigation cleared them. Even the state judicial system was secondary to the police departments’ own institutions – this reinforces the idea that police are above the law in nearly every possible way.

If public prosecutors won’t indict officers, and city governments shield them from the costs of civil suits, how can they be held accountable?

In the case of Tamir Rice, the twelve-year-old boy shot in Cleveland for carrying a toy gun in a park, there may be an answer.  In early June, more than six months after Rice was killed by Officer Tim Loehmann, the Cuyahoga County Sherrif’s Department concluded its investigation and handed over its findings to county prosecutor Timothy J. McGinty, who will present the findings to a grand jury to determine whether or not to proceed with indictments.

While everyone else is awaiting the grand jury’s decision, community leaders and activists in Cleveland have taken the initiative and asked a judge to issue an arrest warrant. By doing this, these community leaders are trying to circumvent the process that we have all seen unravel in the cases of other victims of police violence, from Staten Island to Ferguson. According to the New York Times, “Ohio law allows anyone with ‘knowledge of the facts’ to file a court affidavit and ask a judge to issue an arrest warrant. If approved, the arrest would be followed by a public hearing, and community members said that was preferable to allowing prosecutors to make the decision in secret.”

This attempt to secure a private prosecution rather than one through the state prosecutor’s offices may allow Rice’s family to have more control over the indictment, and may force Officer Loehmann to actually face accountability – or at least public scrutiny. If the tactic yields any success at all, it will be an important step towards attaining justice and give hope to those struggling to end police impunity.

* *

Such private prosecutions are incredibly rare in the United States, but they can be found in other parts of the world. In fact, private prosecutions have played a critical role in modern history as the foundations on which the emerging international justice movement has been built. In her book The Justice Cascade, political scientist Kathryn Sikkink points to human rights prosecutions in Greece, Portugal, and Argentina as beginning the shift towards individual accountability for serious state crimes like torture – a shift we continue to see today on the international stage.

In Greece, the first human rights prosecutions were held after the right-wing government was replaced in 1974. Just a month after the transition, Alexandros Lykourezos, a Greek lawyer who had returned from exile, initiated private prosecutions against military government leaders for treason for overthrowing the democratic government seven years prior. He was followed by others who filed charges against officials for torture and for the murder of students in the Athens Polytechnic uprising. According to Sikkink, “the private prosecutions both forced the government’s hand and relieved it of the burden of having to initiate prosecutions itself.” This brought about justice even in the face of government officials who did not want to focus on accountability for their predecessors.

Soon after, Argentina tried the leaders of the right-wing government that had tortured, murdered, and disappeared thousands of leftists and alleged communists in its Dirty War. Just two years after the junta stepped down in 1983, President Raúl Alfonsín’s government prosecuted several junta leaders. But it was everyday citizens and their use of private prosecutions that charged almost three hundred military officers for their actions during the authoritarian years.

When the expansion of accountability led to the attempted Easter Coup in 1987, Alfonsín issued amnesties for members of the junta to satisfy powerful criminals and prevent a return to the dark years of military rule. The strength of the military had forced the government to step back through its use of force and intimidation. Years later, however, the citizens of Argentina grew tired of impunity and once again used private prosecutions to find ways to hold torturers and murderers accountable.

Photos of those disappeared by the military junta commemorate the Dirty War in Argentina. (Photo by Pablo Flores, via Flickr)

Photos of those disappeared by the military junta commemorate the Dirty War in Argentina. (Photo by Pablo Flores, via Flickr)

Led by the Madres de Plaza de Mayo, an association of mothers and grandmothers whose children had been kidnapped and disappeared by the military junta, civilians began to push for true accountability in Argentina. In addition to torture and murder, there were many cases in which murdered communists lost their children, who were given away to military families to be raised away from “subversive” influence. The mothers’ association argued that the guilty military officials had never been charged with abducting children, and as a result had never been granted amnesty for such acts. After a decade of state-sanctioned impunity, the authoritarian leaders were back in the dock thanks not to the government’s prosecutors but to citizens determined to see justice carried out.

In these countries, as in Cleveland, private prosecutions served as a channel through which victims can seek not only compensation for their loss but true justice in the courtroom. As Sikkink states, “in a judicial system with strong private prosecution provisions, like that in Argentina, victims can insist that a prosecution continue, even when the state prosecutor would like it dropped.” In Cleveland, the Reverend Jawanza K. Colvin, a pastor and one of the community leaders bringing forth the charges, stated that “as citizens we are taking this matter and the matter of justice into our hands.” Walter Madison, a lawyer for Tamir Rice’s family, explained that “here we are taking some control of the process as citizens.” This is a democratic effort to do what democratically elected governments cannot – rein in police violence by ending impunity.

Just as private prosecutions helped victims find justice for torture and murder under right-wing authoritarian governments in southern Europe and South America, private prosecutions offer a new avenue to accountability for victims of police violence, among other prevalent crimes – especially for the more vulnerable in our society. While perhaps different than a state campaign of torture and murder, police violence in America is an issue with a long history and tragic consequences for America’s minorities. To many people of color, the difference between the two issues is probably not very big. For this reason, the actions of activists in Greece and Argentina are more than a sufficient parallel to efforts to hold police accountable for their actions. Private prosecutions are the link that ties them together.

* *

This method of bypassing the state is not new, but it is novel. As Noah Feldman explains, an Ohio state appellate court ruled that private prosecutions were legal in 1957, and in 1960 a state law was passed codifying the practice.

Feldman begins his analysis feeling uneasy about whether we should applaud such actions or not. “The law… would tend in the long run to give an advantage to families with greater means to greater political clout. They, after all, would have the resources to collect affidavits and go to court,” he says. “Tamir Rice’s family has that capacity because this case attracted national attention and the help of clergy and civil-rights leaders. But the families of other, less heralded victims might not be so fortunate.”

Feldman is right that our society is unequal, and that we shouldn’t expect a provision such as private prosecutions to be any different. As much as private prosecutions would give the victims of police violence, rape, and illegal foreclosures a chance to put cops, rapists, and bankers in jail, those in power would also have yet another tool which they could use to discipline the vulnerable. But we shouldn’t convince ourselves that they don’t already do this. The nation’s rich and powerful already have all the tools – one of which is the state – on their side. That’s why police impunity, rape culture, and unregulated capitalism are the norm and accountability for their perpetrators is the exception.

If we can bypass the state in these early stages, however, we could at least remove one part of the system that protects the powerful and ignores the downtrodden. Sure, those with the backing of executive boards and police unions would still have the best lawyers, but a public that was committed to accountability could rally behind victims of our society’s major ailments – inequality, racism, sexism. Private prosecutions could address issues of structural violence by indicting those responsible for carrying out direct violence and forcing the issue to be discussed in the open.

Despite this worry, Feldman closes his editorial by saying that “prosecutors’ offices are always going to be tempted to go easy on the police with whom they must work. Ohio’s law deserves to be copied – not just by a few jurisdictions, but by all.” Indeed, private prosecutions should be an option for the most underprivileged in our society to seek justice.

In the weeks and months that follow, Cuyahoga County’s justice system will be the next battleground for the struggle to hold police accountable. But whether County Prosecutor McGinty’s grand jury finds reason to indict officer Loehmann or not, the people have spoken, and they have asked a judge to issue indictments regardless. Just like in other countries plagued by state violence of one form or another in history, Cleveland now has a chance to move past impunity and towards real accountability.