Speaker 1: Pushkin, this is solvable. On Jacob Weisberg, there is a
Speaker 1: lack of accountability for police violence, and one part of
Speaker 1: solving that is to give federal prosecutors more tools so
Speaker 1: that they can actually prosecute these cases. Approximately a thousand
Speaker 1: people are killed during police encounters in the United States
Speaker 1: every year, and in fact, that number is held steady
Speaker 1: for nearly twenty years. Around half of those killed are white.
Speaker 1: Black Americans are more than twice as likely to die
Speaker 1: at the hands of police. They are killed disproportionately to
Speaker 1: their overall representation in the population. I'm thinking about, say,
Speaker 1: the shooting of Fialando Castile outside Minneapolis, Tamia Rice, you know,
Speaker 1: twelve year old boy who was shot and killed by
Speaker 1: an officer when playing in a park in Cleveland. How
Speaker 1: do we achieve racial justice while protecting public safety? Lawyer
Speaker 1: cheer Rog Baines believes the federal government has a key
Speaker 1: role to play. What exactly would you like to see
Speaker 1: happen there? For Congress to lower the intent standard from
Speaker 1: willfulness to recklessness so that it would be a federal
Speaker 1: crime to recklessly deprive someone of their rights under color
Speaker 1: of law, you know, to recklessly use successive force. For
Speaker 1: all the Americans who died during police encounters, in less
Speaker 1: than two percent of cases. Does an officer end up
Speaker 1: being charged with a crime when you were at DJ
Speaker 1: How many times that specific language of willful swart a
Speaker 1: possible prosecution of an officer you think you felt had
Speaker 1: done something wrong routinely that was the biggest barrier. It
Speaker 1: was always the central concern. Cheirog Baines, who's devoted his
Speaker 1: career to ending impunity for officers who commit crimes against citizens,
Speaker 1: thinks we can fix this. The problem of lack of
Speaker 1: accountability for police violence is solvable. Cherick Baines is the
Speaker 1: director of Legal Strategies at Demos, a racial justice organization.
Speaker 1: Before that, he worked at the US Department of Justice,
Speaker 1: serving as senior consul to the head of the Civil
Speaker 1: Rights Division. That's the division that investigated Ferguson, Missouri, and
Speaker 1: sued the city for unconstitutional policing and court practices. Bains
Speaker 1: co wrote the Ferguson report. Malcolm Gladwell spoke to bains
Speaker 1: about what needs to be done to solve the persistent
Speaker 1: problem of police impunity at the national level. Two critical
Speaker 1: components are lowering the intense standard for the federal government
Speaker 1: to prosecute active access of force criminally and using federal
Speaker 1: consenticrees to address systemic misconduct. You've been working on this
Speaker 1: question of how to make police better for quite some time, right, Yes, Actually,
Speaker 1: it's been an issue that's been an issue that I've
Speaker 1: been distressed by and wanting to do something about since
Speaker 1: I was a young kid. Actually, the Rodney King case
Speaker 1: happened in the beating of Rodney King. That was nineteen
Speaker 1: ninety one. I was ten years old. And there were
Speaker 1: a lot of high profile incidents in the nineteen nineties
Speaker 1: with Amdurdallo, Abner Louima, and many other high profile cases
Speaker 1: of police violence, police killings. So it's an issue I
Speaker 1: cared about as a high schooler for sure. I can
Speaker 1: remember that where were you in high school? Chelmsford High School.
Speaker 1: It's a small town in Massachusetts next to the city
Speaker 1: of Lowell, maybe about thirty thousand and thirty five thousand people.
Speaker 1: It wasn't like you were, you know, living in la
Speaker 1: or living in the Bronx where Amidudillo was shot. It
Speaker 1: was you were. These were instance miles away that nonetheless
Speaker 1: caught your attention absolutely. I mean, these were national stories
Speaker 1: and you know, I was very interested in civil rights history,
Speaker 1: even civil rights law, thinking about the role of lawyers
Speaker 1: in the civil rights movement. I think I maybe juxtaposed
Speaker 1: that history and the principles underlying that movement with what
Speaker 1: I was seeing play out in terms of police violence
Speaker 1: in the country at that time. And actually can remember
Speaker 1: an organization called the Stolen Lives Project that would collect
Speaker 1: information about the people who had been killed by police,
Speaker 1: disproportionately young black men. That is something that I recall,
Speaker 1: So it's something i've It's an issue I've been working
Speaker 1: on for a long time. I ended up working on
Speaker 1: that some more in law school, focusing on it, and then,
Speaker 1: you know, my first job after clerking for a federal
Speaker 1: judge was to actually prosecute police misconduct cases, including police violence.
Speaker 1: How early on did you decide that you wanted to
Speaker 1: become a lawyer? Depressingly early on, actually, I think I
Speaker 1: thought in high school that had become a lawyer. What
Speaker 1: did your family think of that decision? Well, I'm an
Speaker 1: Indian kid and the child of immigrants, and so I
Speaker 1: think a lot of people in that boat might relate.
Speaker 1: My mother really wanted me to be a doctor. So
Speaker 1: you know that a million other Indian children. Yeah, yeah,
Speaker 1: it's a it's a common refrain, and you are short
Speaker 1: of being a doctor. A lawyer was pretty good. So
Speaker 1: I mean, but you know, my family wasn't focused on
Speaker 1: these issues. These weren't the issues that they confronted, and
Speaker 1: they cared about it in the sense that they are
Speaker 1: generally aware. My grandmother used to describe all this work
Speaker 1: as a community service or volunteer work, and I'd have
Speaker 1: to tell her, no, I actually get paid to do
Speaker 1: this job. Yes, what does being trained in the law
Speaker 1: mean for your perspective on these issues? So, for example,
Speaker 1: if I had a conversation with a psychologist about police
Speaker 1: violence or a sociologist, I can imagine the kinds of
Speaker 1: things that would they would focus on. Fact, I've read
Speaker 1: books by sociologists on police violence. I'm just curious. Is
Speaker 1: there something distinctive about legal training that affects the way
Speaker 1: you interpret or make sense of this problem? Yeah? Well,
Speaker 1: these issues and if your interest is in accountability, then
Speaker 1: we have certain mechanisms of accountability. You know. There are
Speaker 1: some that are less about the courts, you know, like
Speaker 1: internal discipline as at police departments, but a lot of
Speaker 1: them are criminal prosecutions, civil cases, and legal rules govern
Speaker 1: all of that. So I think the legal training is
Speaker 1: really important if you want to have a role in
Speaker 1: the courts or shaping policy of say the Justice Department
Speaker 1: or any state agency that has that kind of power.
Speaker 1: It can have a negative impact too, I should say,
Speaker 1: I think, you know, the downside is that you start
Speaker 1: to think in overly legalistic terms. So you know, good
Speaker 1: example actually is where people will say the murder of
Speaker 1: X person who was killed by police, and the lawyer
Speaker 1: in me will sometimes think, well, was that actually a murderer?
Speaker 1: I mean, it might have been manslaughter, it might have
Speaker 1: been some other kind of offense. It's not technically murder,
Speaker 1: so I should watch my words. I don't think that's
Speaker 1: particularly healthy. I think you can start to lose the
Speaker 1: forest for the trees and get disconnected from communities who
Speaker 1: are experiencing this and you know, the fundamental problem of
Speaker 1: police violence that needs to change. Yeah, I'm curious about
Speaker 1: so you go, Oh, you come out of law school,
Speaker 1: you clerk, and then did you join the Department of
Speaker 1: Justice immediately thereafter? Yes, you emerge from this experience with
Speaker 1: some ideas about how we ought to deal with this
Speaker 1: problem of police violence, and I'd love to I love
Speaker 1: you to sort of go over what you think the
Speaker 1: most important of those are. Maybe start with this idea
Speaker 1: of police impunity, because that's something we've been hearing a
Speaker 1: lot about in the aftermath of George Floyd. You talk
Speaker 1: about what does that idea mean? Is it structured? Appropriate? Now?
Speaker 1: Is can we is this one pathway to reform? I
Speaker 1: think criminal prosecution is a critical part of the response
Speaker 1: to acts of police violence, but I also don't think
Speaker 1: it's enough on its own to kind of change the
Speaker 1: system and to stop such actions from happening in the
Speaker 1: first place. But right now, it is a problem. Right
Speaker 1: there is a lack of accountability for police violence. And
Speaker 1: one part of solving that is to give federal prosecutors
Speaker 1: more tools so that they can actually prosecute these cases.
Speaker 1: And there's a couple of pieces of that I can
Speaker 1: break down. Yeah, what do you mean by that? What
Speaker 1: are the tools? Well, the federal government has one statutory
Speaker 1: tool to prosecute police officers for excessive force. That is
Speaker 1: a Reconstruction era statute. We call them two forty two
Speaker 1: cases because this part of the US Code where this
Speaker 1: is found is eighteen US Code, section two forty two.
Speaker 1: It's a reconstruction era statute that was passed as part
Speaker 1: of the Civil Rights Act of eighteen sixty six, and
Speaker 1: it says that, you know, it is a crime to
Speaker 1: willfully deprive someone of their rights under color of law.
Speaker 1: There's a lot of other words, but those are the
Speaker 1: words that matter. The color of law part is usually
Speaker 1: the easiest, although not always. It basically means that the
Speaker 1: target or the defendant, you know, the officer was using
Speaker 1: and abusing authority given them by the government. So if
Speaker 1: they were in uniform, they committed violence in the course
Speaker 1: of an arrest. That sort of thing you've got under
Speaker 1: color of law. The deprivation of rights part be hard
Speaker 1: because this that gets to what is the content of
Speaker 1: your Fourth Amendment right to be free from unreasonable force,
Speaker 1: free from excessive force, And the courts have been very
Speaker 1: deferential to law enforcement officers, so that is a pretty
Speaker 1: hard element. It's easy in a case where someone's in
Speaker 1: handcuffs and is being beaten, although not a luck because
Speaker 1: the officers could say the person was still resisting, still
Speaker 1: posed a threat, so it's it's often a fight. The
Speaker 1: intent element willfulness is a major problem that's the highest
Speaker 1: intent standard in federal law. It's pretty close to what's
Speaker 1: required to prove premeditated first degree murder. Most people don't
Speaker 1: know what the word willfulness means when they're confronted with
Speaker 1: the word, and courts have struggled over it, but it
Speaker 1: essentially boils down to that the officer knew what they
Speaker 1: were doing was wrong and chose to do it anyway.
Speaker 1: That can be really hard because there are many situations
Speaker 1: where an officer will say, well, I didn't have time
Speaker 1: to develop that intent, or actually had a different intent,
Speaker 1: which is to control the situation, not to violate someone's rights,
Speaker 1: especially in circumstances that unfold very quickly. Officers who engage
Speaker 1: in let's say, reckless behavior will escape liability under federal
Speaker 1: criminal law because the intense standard is higher. And even
Speaker 1: officers who do engage in willful misconduct, you intentional, will holme, missconduct,
Speaker 1: can say they didn't and they've got a lot of
Speaker 1: legal arguments to make and factual arguments using that element.
Speaker 1: So you'd like to see what some you think would
Speaker 1: be might be useful to relax some of those standards,
Speaker 1: so to give prosecutors other avenues for pursuing these kinds
Speaker 1: of cases, What exactly would you like to see happen there? Yeah,
Speaker 1: the key move that I'd like to see is for
Speaker 1: Congress to lower the intense standard from willfulness to recklessness,
Speaker 1: so that it would be a federal crime to recklessly
Speaker 1: deprive someone of their rights under color of law, you know,
Speaker 1: to recklessly use successive force. So when I think about
Speaker 1: cases that we're not prosecutable at the federal level but
Speaker 1: certainly look like crimes, I'm thinking about, say, the shooting
Speaker 1: of Philando Castile outside Minneapolis four years ago, thinking about
Speaker 1: the case of Tamir Rice, you know, twelve year old
Speaker 1: boy who was shot and killed by an officer when
Speaker 1: playing in a park in Cleveland. In those cases, the
Speaker 1: way they unfolded, the officer can say, first of all,
Speaker 1: got themselves into a difficult situation and didn't de escalate,
Speaker 1: rather escalated the situation and then was able to say
Speaker 1: I feared for my life, you know, I saw the
Speaker 1: toy gun that the twelve year old had, and I
Speaker 1: thought I was going to die, so I shot and
Speaker 1: killed him, you know, within seconds of arriving. And those
Speaker 1: cases would be prosecutable if recklessness were the standard if
Speaker 1: the officer engaged in reckless behavior didn't take steps to
Speaker 1: take greater care. It actually is the law at the
Speaker 1: state level in most places that a reckless violation of
Speaker 1: that sort is prosecutable. So and they're even lower standards
Speaker 1: of intent negligence in some cases where these cases could
Speaker 1: be prosecuted by the state, but it's not permitted under
Speaker 1: federal law. And that's a problem because there are advantages
Speaker 1: to prosecution. There's this unit that exists to prosecute these
Speaker 1: kind of cases, so they're repeat players. They developed deep
Speaker 1: expertise in how to build these cases and prove them
Speaker 1: at trial to reluctant juries. It also provides a measure
Speaker 1: of independence. Federal prosecutors don't work, at least in this office,
Speaker 1: don't work with local police on a repeat basis. You
Speaker 1: prosecuting street crime, local prosecutors do. So the federal government
Speaker 1: offers a real solution in the sense of independence. That's
Speaker 1: a problem. I think that the public started paying a
Speaker 1: lot more attention to after Ferguson, But it's only a
Speaker 1: real solution if they have the ability to bring cases,
Speaker 1: and right now they don't have the statuary tool they need.
Speaker 1: How many times that specific language of willful when you
Speaker 1: were at DJ did that thwart a possible prosecution of
Speaker 1: an officer you felt had done something wrong. Routinely that
Speaker 1: was the biggest barrier to prosecuting cases. It was always
Speaker 1: the central concern. You know, the concerns are, was this
Speaker 1: unreasonable conduct and thus violation of someone's Fourth Amendment rights?
Speaker 1: And that's a tough one, as I mentioned, but it's
Speaker 1: always was it a willful And often the answer was like, look,
Speaker 1: it's going to be a challenge to prove this was unreasonable,
Speaker 1: but I think we could do it. I don't think
Speaker 1: we're gonna be able to prove beyond a reasonable doubt
Speaker 1: that this conduct was willful. Yeah, And so it was
Speaker 1: the biggest obstacle to accountability and it was routinely present,
Speaker 1: always thought about in cases. You were part of a
Speaker 1: number of very high profile cases, including Ferguson. And Ferguson
Speaker 1: was a fascinating example of what you're talking about, because
Speaker 1: the police officer did not end up being inducted by
Speaker 1: the Department of Justice, but you did launch a pattern
Speaker 1: or practice investigation of the Ferguson Department, and that is
Speaker 1: the one that resulted in something happened. So what is
Speaker 1: a pattern of practice investigation? A pattern of practice investigation
Speaker 1: is a dj investigation into a whole police department or
Speaker 1: some subset of the police department. Perhaps that is looking
Speaker 1: at whether they're systemic misconduct. So it's a way to
Speaker 1: yet not at just individual accountability, you know, which which
Speaker 1: where people can say, well, that was just one bad officer,
Speaker 1: one bad apple, but actually the fact that there's something
Speaker 1: wrong in this police department. There's a pattern repetition of
Speaker 1: constitutional violations, and there are broken systems that allow them
Speaker 1: to proliferate. You know, you need a whole team of
Speaker 1: people who will go down to the jurisdiction and look
Speaker 1: through all the paperwork they can from the police department,
Speaker 1: meet with as many police officers and command staff as
Speaker 1: they can, meet with community members, hold community forums. You know,
Speaker 1: in Ferguson, I read every arrest report, every use of
Speaker 1: force report, and every complaint that they had in a
Speaker 1: five year period. And that was challenging. It would have
Speaker 1: been impossible in a bigger department. And you know, Ferguson
Speaker 1: had fifty five police officers, but other departments, you know,
Speaker 1: have hundreds or thousands. And this is a really important
Speaker 1: part of DJ's power, and it's relatively new. It was
Speaker 1: in the early nineties when this passed as a re
Speaker 1: action to the Rodney King beating and the riots that
Speaker 1: followed the acquittal of the four officers on state charges.
Speaker 1: The events that happened there were a wake up call
Speaker 1: for legislators that this wasn't about just Rodney King. It
Speaker 1: wasn't just about those four officers who assaulted him. It
Speaker 1: was about years and years of degradation and violence and
Speaker 1: misconduct within LAPD. Congress realized they needed to do something here.
Speaker 1: At the same time that these events were becoming clear,
Speaker 1: it was also clear that there were a lot of
Speaker 1: barriers in the law to individuals bringing civil suit. Barriers
Speaker 1: that have to do the standing, that is, who can
Speaker 1: get to court in the first place, Barriers that have
Speaker 1: to do with proving of violation. And so what Congress
Speaker 1: did is they created a new authority for DJ to
Speaker 1: investigate law enforcement agencies where there's a pattern or practice
Speaker 1: of conduct that violates law. And DJ started doing the
Speaker 1: cases in the beginning in the late nineties. So how
Speaker 1: many pattern and practice investors were you a part of it? DOJ?
Speaker 1: We did Ferguson, Chicago, Baltimore, and we had continuing consent
Speaker 1: decrees in many places Seattle, New Orleans. There was also
Speaker 1: work in new work. You know, during the Obama administration,
Speaker 1: twenty five investigations of police departments were opened. Yeah, so
Speaker 1: this was a priority. It was a priority for the
Speaker 1: Obama Justice Department. In the three and a half years
Speaker 1: that Trump has been president, the Justice Department has done
Speaker 1: one investigation. So they also put in place certain memos
Speaker 1: that just make it very hard to bring these cases.
Speaker 1: And there's been a chilling effect as well, even though
Speaker 1: it's formerly on the books. I think attorneys at the
Speaker 1: career level are not bringing these cases and pushing them
Speaker 1: up to the political leadership because they know they're not welcome. Yeah.
Speaker 1: So what happens, so I'm I'm for the town of Ferguson.
Speaker 1: DOJ returns a report which says that there was a
Speaker 1: pattern of practice of unlawful conduct. So what happened next? Well,
Speaker 1: you know, you specify what that pattern or practice is,
Speaker 1: and it's usually constitutional violations. It's important to say that
Speaker 1: we found a pattern of First Amendment violations, of excessive force,
Speaker 1: of racial discrimination, and violation of the fourteenth Amendment. You know,
Speaker 1: you put it out there, make the findings public, and
Speaker 1: then there's you know, begin a process of negotiation and
Speaker 1: consultation to see if this is a case that will
Speaker 1: resolve short of litigation. And so, you know, in Ferguson,
Speaker 1: for example, what we do is we made the report
Speaker 1: public and we very quickly after that, we're in Ferguson
Speaker 1: meeting with officials in the town and for the police
Speaker 1: department and also with the community. You know, we held
Speaker 1: a community forum where we explained our findings, took questions,
Speaker 1: and actually broke up into small groups that are hundreds
Speaker 1: of people who attended, and in these small groups, we
Speaker 1: took ideas for what reforms did people want to see
Speaker 1: in a reform agreement. And it's just hours and hours
Speaker 1: of negotiation between DJ, the attorneys and other staff and
Speaker 1: the DJ team and city council members or whoever it
Speaker 1: is that's coming to the table from the city where
Speaker 1: the police department is, and the goal is to get
Speaker 1: to an agreement that becomes what's called a consent decree,
Speaker 1: which is it's an agreement that becomes an order of
Speaker 1: the court and it's more powerful in specific ways than
Speaker 1: a private out of court agreement, and there are various
Speaker 1: ways in which the community can impact that even though
Speaker 1: the community is not technically a party to the lawsuit
Speaker 1: that will be filed in what community do you think
Speaker 1: this process worked best? Is there a shining example of
Speaker 1: patterns and practices really turning around a troubled police department.
Speaker 1: You know, one place where I think there has been
Speaker 1: some success is Seattle. It's again not a complete success,
Speaker 1: but there are some good indicators. So the Department of
Speaker 1: Justice entered a consent decree with Seattle in twenty twelve,
Speaker 1: and if you look at the numbers comparing twenty eleven,
Speaker 1: the year before the consent decree to twenty nineteen, in
Speaker 1: a most recent year where we have full data, serious
Speaker 1: use of force declined sixty in that period. Yeah. Yeah,
Speaker 1: So it's had an impact, and they're still working on
Speaker 1: some things, but it has had some success. And I
Speaker 1: think there are other departments that look very different today
Speaker 1: than they did before. New Orleans is another one that
Speaker 1: comes to mind, where there were just repeat acts of
Speaker 1: violence and murder in that department and other systemic problems,
Speaker 1: and that department looks a lot different today. Again, it's
Speaker 1: not the model, and they're not free from excessive force
Speaker 1: or discrimination. But it looks a lot different today. Would
Speaker 1: you if you had to choose, hypothetically someone said to you,
Speaker 1: you can only do one. You can either change the
Speaker 1: willful standard or you can have patterns of practice investigations.
Speaker 1: Pick which one would you choose? Okay? Well, I was
Speaker 1: trying to avoid having to identify one thing because because
Speaker 1: it's the nature, even these two things aren't enough to
Speaker 1: transform policing. But between those two, I, although I spent
Speaker 1: more of my time doing the criminal prosecutions, I would
Speaker 1: say emphasized reforms on the pattern or practice side. I
Speaker 1: think there are things we could do differently even from
Speaker 1: how we did them at the Justice Department when I
Speaker 1: was there, And it's one of the few tools that
Speaker 1: exist to try to change a department overall, as opposed
Speaker 1: to just take out a few bad officers. You know,
Speaker 1: right now, the rallying cry in many of the protests,
Speaker 1: among many of those post George Floyd, has been about
Speaker 1: defunding the police or these kinds of terms are being
Speaker 1: thrown around. What's your reaction to that line of proposed reform.
Speaker 1: So there's this way in which police have both underserved
Speaker 1: and you know, over policed communities, underserved in the sense
Speaker 1: that you know, in many communities they don't come when
Speaker 1: you call nine one, or they haven't solved murders and
Speaker 1: rapes and other serious crimes where the police are the
Speaker 1: ones who are you know, people turn to you for
Speaker 1: that kind of service, and yet they're present. They're arresting
Speaker 1: people for order violations, you know, focusing on turnstile jumping
Speaker 1: in New York or the Ferguson example would be you know,
Speaker 1: ticketing people and arresting them for failing to show up
Speaker 1: for warrants on faire to keep their law and in order.
Speaker 1: So all of this kind of order policing that police
Speaker 1: have engaged and that doesn't really get to public safety.
Speaker 1: So I think that's where this is going. And you know,
Speaker 1: we should invest in forms of public safety that we
Speaker 1: believe in, that we believe are equitable and that are real,
Speaker 1: and that will really change our communities. That's what I
Speaker 1: make of it. I think this is a local, locally
Speaker 1: driven thing, and we should welcome this conversation and really
Speaker 1: step into it. And people should be lobbying their city
Speaker 1: council and their mayor for what's in the police budget.
Speaker 1: I asked you before to choose between two important mechanisms
Speaker 1: for dealing with police violence. Now I want to ask
Speaker 1: you the opposite question. I've made you CSAR, and I've
Speaker 1: given you back patterns and practices. I've allowed you to
Speaker 1: change the willful language. Give me two other things that
Speaker 1: would that you would do tomorrow if you could, that
Speaker 1: you think would help us confront this issue of police violence.
Speaker 1: One thing I would do is invest in non police
Speaker 1: responses to social crises and emergencies. So here I'm thinking
Speaker 1: about there are a lot of situations where someone's having
Speaker 1: a mental health crisis, or you know, there's an argument
Speaker 1: and it's not actually posing a public safety risk. You know,
Speaker 1: where you need somebody who has a badge and a
Speaker 1: gun to respond, But you do want somebody who's trained,
Speaker 1: maybe in substance abuse treatment, maybe in mental health awareness,
Speaker 1: to respond. We don't have that. We don't have that
Speaker 1: in America. There's only one service that answers the phone
Speaker 1: and will come to your house twenty four to seven.
Speaker 1: That is the police. And they're primarily trained in firearms
Speaker 1: usage and what they call defensive tactics using force. So
Speaker 1: I would like to see an investment in alternative forms
Speaker 1: of public safety to respond to those kinds of needs.
Speaker 1: They're sort of like a unarmed first responder service where
Speaker 1: you could call maybe it's still nine one, and they
Speaker 1: dispatch sends someone else, maybe it's another phone number. I
Speaker 1: think that would be really interesting and would actually serve
Speaker 1: police in the way that a lot of officers have
Speaker 1: told me they spent a lot of time responding to
Speaker 1: calls that you know, aren't why they went into the
Speaker 1: police academy and that they're not trained for. So I
Speaker 1: think that would be a helpful solution. Another thing that
Speaker 1: needs to change is we need to end qualified immunity.
Speaker 1: That's a judge made doctrine that's about forty years old
Speaker 1: where you can't sue, We can't even sue a police
Speaker 1: officer for violating your rights if the court deems those
Speaker 1: rights to not having been clearly established. And what that
Speaker 1: ends up meeting in the way the law works is
Speaker 1: if there wasn't another case that was decided and that
Speaker 1: you can find an opinion on where the court has
Speaker 1: said that a certain kind of conduct was unconstitutional, then
Speaker 1: you're not going to be able to sue if it
Speaker 1: happened to you, and that's nowhere in the statute under
Speaker 1: which these cases are brought. It has no relationship to
Speaker 1: what you know, the original intent of the of the
Speaker 1: statutes or of the Constitution, and it's a major frustration
Speaker 1: for accountability. It shields law enforcement in cases where they
Speaker 1: should be liable. I'd like to see that ended as well.
Speaker 1: We've been talking a lot about ways in which we
Speaker 1: can make police behavior more acceptable and legitimate in the
Speaker 1: eyes of the population. But let me ask the questions
Speaker 1: of the other way. What are the ways in which
Speaker 1: we can make these kinds of reforms acceptable to the police.
Speaker 1: The first question is what reform is necessary to really
Speaker 1: protect constitutional rights and ensure equity, and so I start
Speaker 1: from that point. But let me take the question on
Speaker 1: its terms. You know, how do you make the case
Speaker 1: to police officers? I think that's about showing that these
Speaker 1: systems are currently designed for them to fail in their job.
Speaker 1: What would a different world look like, one in which
Speaker 1: police weren't sent to calls that they're not equipped to
Speaker 1: respond to, one in which you know, they focused more
Speaker 1: of their time on violent crimes as opposed to order
Speaker 1: violations or engagements that have nothing to do with the
Speaker 1: law at all, you know, also just understanding some of
Speaker 1: the specific challenges they experience and building that into the agenda.
Speaker 1: Some of the challenges I heard about from police officers
Speaker 1: when I was involved in the Ferguson investigation or in
Speaker 1: some of my criminal cases, were that, you know, they
Speaker 1: didn't have the support of their leadership. Their leadership was
Speaker 1: focusing on a certain kind of enforcement that made it
Speaker 1: hard for them to have legitimacy in the community. Ferguson
Speaker 1: was a great example of this. You know, it wasn't
Speaker 1: the decision of the line officers to use the police
Speaker 1: power and the courts to generate revenue for the town.
Speaker 1: It was the decision of the mayor, the city council.
Speaker 1: The finance director actually played a very significant role. And
Speaker 1: so the officers were saying, this wasn't on me, Why
Speaker 1: am I getting flak for it? And I think these
Speaker 1: pattern or practice cases allow you to zoom out from
Speaker 1: the individual officer and say, yeah, this actually isn't on
Speaker 1: the individual officer. These are larger decisions about structures that
Speaker 1: have been made way above their pay grade, and that's
Speaker 1: where accountability should lie. And then there are other things
Speaker 1: where there's actually not enough investment in officer wellness. The
Speaker 1: suicide rate is high for officers. These are things that
Speaker 1: we also need to address and I think should be
Speaker 1: part of the conversation. We love to end these conversations
Speaker 1: with telling listeners what are the sources of things they
Speaker 1: can do? You know, how can they participate meaningfully in
Speaker 1: this reform effort. Yeah, I think there's a lot that
Speaker 1: can be done right now. I mean, being part of
Speaker 1: the movement for police reform is critical. So right now
Speaker 1: there's the unique opportunity of protests happening all over the
Speaker 1: country every single day. I actually think that that drives
Speaker 1: most of the change that we're talking about right now.
Speaker 1: Congress wouldn't have a bill that's pending right now to
Speaker 1: change the intense standard as we've been discussing on the
Speaker 1: criminal statute, or to end qualified immunity if it weren't
Speaker 1: for these protests and the black latter organizing we're seeing.
Speaker 1: So I would say, join a protest and then ask
Speaker 1: for specific changes in your community as well. Check out
Speaker 1: the statutes, look at the police policies, See what kind
Speaker 1: of agreements are in the collective bargaining agreement between the
Speaker 1: city and the police union, and if any of those
Speaker 1: pieces frustrate accountability and make it hard to investigate a case,
Speaker 1: make it hard to reduce police violence, take those things
Speaker 1: to the city council and demand change. When you think
Speaker 1: about this from your perspective, are you optimistic right now?
Speaker 1: Are you pessimistic? I'm optimistic. I'm an optimistic person. And
Speaker 1: some might say that we haven't seen enough change in
Speaker 1: policing to be optimistic, but I think this moment is
Speaker 1: very different. It's different even from the moment of activity
Speaker 1: and collective reckoning that we had around Ferguson. I think
Speaker 1: there is a danger that it doesn't turn into enough
Speaker 1: substance of change. You know, when you've got Amazon and
Speaker 1: all these corporations emblazoning their web pages and their materials
Speaker 1: with Black Lives Matter, but continue to prop up the
Speaker 1: system of that we are trying to change, I think
Speaker 1: there's a danger of appearing to do something and not
Speaker 1: doing something. So I'm really interested in what's going to
Speaker 1: change in Congress. Are we going to make statutory changes?
Speaker 1: Are we going to make changes at the local level
Speaker 1: with regard to budgets and priorities. But I am optimistic
Speaker 1: because I haven't seen this level of engagement, including cross
Speaker 1: racial and intergenerational engagement, certainly while I've been alive. That
Speaker 1: with Solvable's Malcolm Gladwell speaking with lawyer and justice advocate
Speaker 1: Cheer Rag Bains. Next week, Solvable is kicking off a
Speaker 1: short series about the twenty twenty election. Solvable is brought
Speaker 1: to you by Pushkin Industries. Remember to check out our
Speaker 1: show notes for links to the suggestions our guests make
Speaker 1: for ways that you can get involved. Solvable is produced
Speaker 1: by Camille Baptista, Jocelyn Frank, and Catherine Girardo. Mia Lobell
Speaker 1: is our executive producer. Special thanks to our social media
Speaker 1: with Eric Sandler. We'll be back next week with another
Speaker 1: episode of Solvable. Please join us