WEBVTT - Lack of Accountability for Police Violence is Solvable 0:00:15.076 --> 0:00:24.556 Pushkin, this is solvable. On Jacob Weisberg, there is a 0:00:24.636 --> 0:00:27.996 lack of accountability for police violence, and one part of 0:00:29.076 --> 0:00:32.396 solving that is to give federal prosecutors more tools so 0:00:32.436 --> 0:00:35.636 that they can actually prosecute these cases. Approximately a thousand 0:00:35.676 --> 0:00:39.196 people are killed during police encounters in the United States 0:00:39.276 --> 0:00:42.516 every year, and in fact, that number is held steady 0:00:42.556 --> 0:00:46.076 for nearly twenty years. Around half of those killed are white. 0:00:46.996 --> 0:00:50.076 Black Americans are more than twice as likely to die 0:00:50.076 --> 0:00:53.996 at the hands of police. They are killed disproportionately to 0:00:54.076 --> 0:00:58.116 their overall representation in the population. I'm thinking about, say, 0:00:58.156 --> 0:01:02.196 the shooting of Fialando Castile outside Minneapolis, Tamia Rice, you know, 0:01:02.276 --> 0:01:04.836 twelve year old boy who was shot and killed by 0:01:04.876 --> 0:01:07.716 an officer when playing in a park in Cleveland. How 0:01:07.756 --> 0:01:11.876 do we achieve racial justice while protecting public safety? Lawyer 0:01:11.996 --> 0:01:14.876 cheer Rog Baines believes the federal government has a key 0:01:14.996 --> 0:01:17.996 role to play. What exactly would you like to see 0:01:17.996 --> 0:01:20.956 happen there? For Congress to lower the intent standard from 0:01:20.996 --> 0:01:23.676 willfulness to recklessness so that it would be a federal 0:01:23.716 --> 0:01:26.676 crime to recklessly deprive someone of their rights under color 0:01:26.716 --> 0:01:30.036 of law, you know, to recklessly use successive force. For 0:01:30.116 --> 0:01:33.156 all the Americans who died during police encounters, in less 0:01:33.156 --> 0:01:36.076 than two percent of cases. Does an officer end up 0:01:36.116 --> 0:01:39.276 being charged with a crime when you were at DJ 0:01:39.796 --> 0:01:44.916 How many times that specific language of willful swart a 0:01:45.036 --> 0:01:48.356 possible prosecution of an officer you think you felt had 0:01:48.356 --> 0:01:52.516 done something wrong routinely that was the biggest barrier. It 0:01:52.596 --> 0:01:57.236 was always the central concern. Cheirog Baines, who's devoted his 0:01:57.316 --> 0:02:01.836 career to ending impunity for officers who commit crimes against citizens, 0:02:02.116 --> 0:02:07.436 thinks we can fix this. The problem of lack of 0:02:07.436 --> 0:02:14.756 accountability for police violence is solvable. Cherick Baines is the 0:02:14.796 --> 0:02:18.916 director of Legal Strategies at Demos, a racial justice organization. 0:02:19.316 --> 0:02:22.036 Before that, he worked at the US Department of Justice, 0:02:22.316 --> 0:02:25.076 serving as senior consul to the head of the Civil 0:02:25.156 --> 0:02:29.836 Rights Division. That's the division that investigated Ferguson, Missouri, and 0:02:29.996 --> 0:02:35.276 sued the city for unconstitutional policing and court practices. Bains 0:02:35.316 --> 0:02:39.876 co wrote the Ferguson report. Malcolm Gladwell spoke to bains 0:02:39.876 --> 0:02:42.676 about what needs to be done to solve the persistent 0:02:42.756 --> 0:02:47.116 problem of police impunity at the national level. Two critical 0:02:47.156 --> 0:02:50.676 components are lowering the intense standard for the federal government 0:02:50.716 --> 0:02:54.756 to prosecute active access of force criminally and using federal 0:02:54.796 --> 0:02:59.236 consenticrees to address systemic misconduct. You've been working on this 0:02:59.316 --> 0:03:04.356 question of how to make police better for quite some time, right, Yes, Actually, 0:03:04.516 --> 0:03:07.436 it's been an issue that's been an issue that I've 0:03:07.516 --> 0:03:10.436 been distressed by and wanting to do something about since 0:03:10.476 --> 0:03:13.716 I was a young kid. Actually, the Rodney King case 0:03:13.756 --> 0:03:17.156 happened in the beating of Rodney King. That was nineteen 0:03:17.236 --> 0:03:20.276 ninety one. I was ten years old. And there were 0:03:20.276 --> 0:03:22.876 a lot of high profile incidents in the nineteen nineties 0:03:23.516 --> 0:03:27.836 with Amdurdallo, Abner Louima, and many other high profile cases 0:03:27.836 --> 0:03:31.356 of police violence, police killings. So it's an issue I 0:03:31.356 --> 0:03:33.596 cared about as a high schooler for sure. I can 0:03:33.676 --> 0:03:36.516 remember that where were you in high school? Chelmsford High School. 0:03:36.516 --> 0:03:39.796 It's a small town in Massachusetts next to the city 0:03:39.836 --> 0:03:42.916 of Lowell, maybe about thirty thousand and thirty five thousand people. 0:03:43.356 --> 0:03:46.236 It wasn't like you were, you know, living in la 0:03:46.516 --> 0:03:49.476 or living in the Bronx where Amidudillo was shot. It 0:03:49.516 --> 0:03:53.516 was you were. These were instance miles away that nonetheless 0:03:53.996 --> 0:03:57.316 caught your attention absolutely. I mean, these were national stories 0:03:57.676 --> 0:04:01.196 and you know, I was very interested in civil rights history, 0:04:01.516 --> 0:04:03.916 even civil rights law, thinking about the role of lawyers 0:04:03.956 --> 0:04:07.236 in the civil rights movement. I think I maybe juxtaposed 0:04:07.796 --> 0:04:11.996 that history and the principles underlying that movement with what 0:04:12.076 --> 0:04:13.956 I was seeing play out in terms of police violence 0:04:13.956 --> 0:04:17.196 in the country at that time. And actually can remember 0:04:17.356 --> 0:04:20.516 an organization called the Stolen Lives Project that would collect 0:04:20.556 --> 0:04:23.636 information about the people who had been killed by police, 0:04:24.036 --> 0:04:28.556 disproportionately young black men. That is something that I recall, 0:04:28.676 --> 0:04:30.636 So it's something i've It's an issue I've been working 0:04:30.636 --> 0:04:32.156 on for a long time. I ended up working on 0:04:32.196 --> 0:04:34.636 that some more in law school, focusing on it, and then, 0:04:35.236 --> 0:04:37.716 you know, my first job after clerking for a federal 0:04:37.796 --> 0:04:42.276 judge was to actually prosecute police misconduct cases, including police violence. 0:04:42.636 --> 0:04:44.476 How early on did you decide that you wanted to 0:04:44.476 --> 0:04:47.916 become a lawyer? Depressingly early on, actually, I think I 0:04:47.956 --> 0:04:49.996 thought in high school that had become a lawyer. What 0:04:50.076 --> 0:04:52.956 did your family think of that decision? Well, I'm an 0:04:52.956 --> 0:04:57.076 Indian kid and the child of immigrants, and so I 0:04:57.116 --> 0:04:58.996 think a lot of people in that boat might relate. 0:04:59.036 --> 0:05:02.036 My mother really wanted me to be a doctor. So 0:05:02.636 --> 0:05:07.516 you know that a million other Indian children. Yeah, yeah, 0:05:07.036 --> 0:05:10.116 it's a it's a common refrain, and you are short 0:05:10.116 --> 0:05:12.356 of being a doctor. A lawyer was pretty good. So 0:05:13.036 --> 0:05:14.996 I mean, but you know, my family wasn't focused on 0:05:15.036 --> 0:05:17.836 these issues. These weren't the issues that they confronted, and 0:05:17.956 --> 0:05:19.516 they cared about it in the sense that they are 0:05:19.596 --> 0:05:23.476 generally aware. My grandmother used to describe all this work 0:05:23.516 --> 0:05:26.596 as a community service or volunteer work, and I'd have 0:05:26.636 --> 0:05:27.996 to tell her, no, I actually get paid to do 0:05:28.076 --> 0:05:32.836 this job. Yes, what does being trained in the law 0:05:34.276 --> 0:05:38.596 mean for your perspective on these issues? So, for example, 0:05:39.236 --> 0:05:42.556 if I had a conversation with a psychologist about police 0:05:42.636 --> 0:05:45.876 violence or a sociologist, I can imagine the kinds of 0:05:46.396 --> 0:05:49.276 things that would they would focus on. Fact, I've read 0:05:49.276 --> 0:05:52.236 books by sociologists on police violence. I'm just curious. Is 0:05:52.276 --> 0:05:56.196 there something distinctive about legal training that affects the way 0:05:56.236 --> 0:05:59.596 you interpret or make sense of this problem? Yeah? Well, 0:05:59.636 --> 0:06:04.156 these issues and if your interest is in accountability, then 0:06:04.276 --> 0:06:06.996 we have certain mechanisms of accountability. You know. There are 0:06:07.036 --> 0:06:10.356 some that are less about the courts, you know, like 0:06:10.636 --> 0:06:14.236 internal discipline as at police departments, but a lot of 0:06:14.276 --> 0:06:19.596 them are criminal prosecutions, civil cases, and legal rules govern 0:06:19.636 --> 0:06:21.996 all of that. So I think the legal training is 0:06:22.596 --> 0:06:24.636 really important if you want to have a role in 0:06:24.716 --> 0:06:28.476 the courts or shaping policy of say the Justice Department 0:06:28.516 --> 0:06:30.476 or any state agency that has that kind of power. 0:06:31.196 --> 0:06:33.556 It can have a negative impact too, I should say, 0:06:33.596 --> 0:06:36.476 I think, you know, the downside is that you start 0:06:36.556 --> 0:06:39.436 to think in overly legalistic terms. So you know, good 0:06:39.476 --> 0:06:42.756 example actually is where people will say the murder of 0:06:42.956 --> 0:06:46.236 X person who was killed by police, and the lawyer 0:06:46.396 --> 0:06:49.196 in me will sometimes think, well, was that actually a murderer? 0:06:49.236 --> 0:06:50.876 I mean, it might have been manslaughter, it might have 0:06:50.916 --> 0:06:53.036 been some other kind of offense. It's not technically murder, 0:06:53.076 --> 0:06:55.476 so I should watch my words. I don't think that's 0:06:55.516 --> 0:06:58.076 particularly healthy. I think you can start to lose the 0:06:58.116 --> 0:07:01.316 forest for the trees and get disconnected from communities who 0:07:01.356 --> 0:07:04.636 are experiencing this and you know, the fundamental problem of 0:07:04.716 --> 0:07:08.596 police violence that needs to change. Yeah, I'm curious about 0:07:08.636 --> 0:07:10.316 so you go, Oh, you come out of law school, 0:07:10.356 --> 0:07:13.316 you clerk, and then did you join the Department of 0:07:13.316 --> 0:07:18.236 Justice immediately thereafter? Yes, you emerge from this experience with 0:07:19.036 --> 0:07:22.836 some ideas about how we ought to deal with this 0:07:22.876 --> 0:07:24.796 problem of police violence, and I'd love to I love 0:07:25.036 --> 0:07:26.756 you to sort of go over what you think the 0:07:26.796 --> 0:07:29.796 most important of those are. Maybe start with this idea 0:07:29.836 --> 0:07:33.156 of police impunity, because that's something we've been hearing a 0:07:33.196 --> 0:07:37.316 lot about in the aftermath of George Floyd. You talk 0:07:37.396 --> 0:07:41.636 about what does that idea mean? Is it structured? Appropriate? Now? 0:07:41.796 --> 0:07:44.756 Is can we is this one pathway to reform? I 0:07:44.796 --> 0:07:48.556 think criminal prosecution is a critical part of the response 0:07:48.596 --> 0:07:51.356 to acts of police violence, but I also don't think 0:07:51.396 --> 0:07:54.156 it's enough on its own to kind of change the 0:07:54.236 --> 0:07:56.276 system and to stop such actions from happening in the 0:07:56.316 --> 0:07:58.516 first place. But right now, it is a problem. Right 0:07:58.516 --> 0:08:01.436 there is a lack of accountability for police violence. And 0:08:01.636 --> 0:08:06.636 one part of solving that is to give federal prosecutors 0:08:06.636 --> 0:08:09.116 more tools so that they can actually prosecute these cases. 0:08:09.596 --> 0:08:10.916 And there's a couple of pieces of that I can 0:08:10.956 --> 0:08:12.596 break down. Yeah, what do you mean by that? What 0:08:12.636 --> 0:08:16.716 are the tools? Well, the federal government has one statutory 0:08:16.756 --> 0:08:21.516 tool to prosecute police officers for excessive force. That is 0:08:21.516 --> 0:08:24.836 a Reconstruction era statute. We call them two forty two 0:08:24.876 --> 0:08:27.636 cases because this part of the US Code where this 0:08:27.716 --> 0:08:31.396 is found is eighteen US Code, section two forty two. 0:08:31.716 --> 0:08:34.716 It's a reconstruction era statute that was passed as part 0:08:34.716 --> 0:08:38.396 of the Civil Rights Act of eighteen sixty six, and 0:08:38.636 --> 0:08:41.436 it says that, you know, it is a crime to 0:08:41.636 --> 0:08:45.636 willfully deprive someone of their rights under color of law. 0:08:46.276 --> 0:08:47.916 There's a lot of other words, but those are the 0:08:47.916 --> 0:08:50.636 words that matter. The color of law part is usually 0:08:50.676 --> 0:08:53.796 the easiest, although not always. It basically means that the 0:08:54.476 --> 0:08:57.116 target or the defendant, you know, the officer was using 0:08:57.796 --> 0:09:01.756 and abusing authority given them by the government. So if 0:09:01.756 --> 0:09:04.356 they were in uniform, they committed violence in the course 0:09:04.356 --> 0:09:06.716 of an arrest. That sort of thing you've got under 0:09:06.716 --> 0:09:09.716 color of law. The deprivation of rights part be hard 0:09:09.796 --> 0:09:12.236 because this that gets to what is the content of 0:09:12.276 --> 0:09:16.356 your Fourth Amendment right to be free from unreasonable force, 0:09:17.036 --> 0:09:19.516 free from excessive force, And the courts have been very 0:09:19.556 --> 0:09:22.796 deferential to law enforcement officers, so that is a pretty 0:09:22.796 --> 0:09:24.876 hard element. It's easy in a case where someone's in 0:09:24.956 --> 0:09:28.476 handcuffs and is being beaten, although not a luck because 0:09:28.516 --> 0:09:32.276 the officers could say the person was still resisting, still 0:09:32.316 --> 0:09:35.196 posed a threat, so it's it's often a fight. The 0:09:35.556 --> 0:09:39.636 intent element willfulness is a major problem that's the highest 0:09:39.676 --> 0:09:42.676 intent standard in federal law. It's pretty close to what's 0:09:42.676 --> 0:09:46.556 required to prove premeditated first degree murder. Most people don't 0:09:46.556 --> 0:09:49.156 know what the word willfulness means when they're confronted with 0:09:49.196 --> 0:09:51.676 the word, and courts have struggled over it, but it 0:09:51.796 --> 0:09:54.356 essentially boils down to that the officer knew what they 0:09:54.356 --> 0:09:56.676 were doing was wrong and chose to do it anyway. 0:09:57.996 --> 0:10:01.396 That can be really hard because there are many situations 0:10:01.396 --> 0:10:03.396 where an officer will say, well, I didn't have time 0:10:03.396 --> 0:10:06.596 to develop that intent, or actually had a different intent, 0:10:06.636 --> 0:10:11.036 which is to control the situation, not to violate someone's rights, 0:10:11.756 --> 0:10:16.596 especially in circumstances that unfold very quickly. Officers who engage 0:10:16.636 --> 0:10:21.276 in let's say, reckless behavior will escape liability under federal 0:10:21.316 --> 0:10:24.476 criminal law because the intense standard is higher. And even 0:10:24.476 --> 0:10:28.596 officers who do engage in willful misconduct, you intentional, will holme, missconduct, 0:10:29.036 --> 0:10:30.996 can say they didn't and they've got a lot of 0:10:31.036 --> 0:10:34.116 legal arguments to make and factual arguments using that element. 0:10:34.476 --> 0:10:37.516 So you'd like to see what some you think would 0:10:37.516 --> 0:10:40.476 be might be useful to relax some of those standards, 0:10:40.476 --> 0:10:43.876 so to give prosecutors other avenues for pursuing these kinds 0:10:43.876 --> 0:10:46.756 of cases, What exactly would you like to see happen there? Yeah, 0:10:46.756 --> 0:10:48.436 the key move that I'd like to see is for 0:10:48.516 --> 0:10:52.076 Congress to lower the intense standard from willfulness to recklessness, 0:10:52.356 --> 0:10:54.516 so that it would be a federal crime to recklessly 0:10:54.676 --> 0:10:57.156 deprive someone of their rights under color of law, you know, 0:10:57.196 --> 0:11:00.436 to recklessly use successive force. So when I think about 0:11:00.476 --> 0:11:03.676 cases that we're not prosecutable at the federal level but 0:11:03.876 --> 0:11:07.556 certainly look like crimes, I'm thinking about, say, the shooting 0:11:07.556 --> 0:11:12.516 of Philando Castile outside Minneapolis four years ago, thinking about 0:11:12.556 --> 0:11:15.516 the case of Tamir Rice, you know, twelve year old 0:11:15.516 --> 0:11:18.116 boy who was shot and killed by an officer when 0:11:18.196 --> 0:11:20.836 playing in a park in Cleveland. In those cases, the 0:11:20.876 --> 0:11:23.796 way they unfolded, the officer can say, first of all, 0:11:23.796 --> 0:11:27.876 got themselves into a difficult situation and didn't de escalate, 0:11:27.996 --> 0:11:31.156 rather escalated the situation and then was able to say 0:11:31.996 --> 0:11:33.996 I feared for my life, you know, I saw the 0:11:34.036 --> 0:11:35.916 toy gun that the twelve year old had, and I 0:11:35.916 --> 0:11:37.556 thought I was going to die, so I shot and 0:11:37.636 --> 0:11:41.556 killed him, you know, within seconds of arriving. And those 0:11:41.596 --> 0:11:44.796 cases would be prosecutable if recklessness were the standard if 0:11:44.796 --> 0:11:48.916 the officer engaged in reckless behavior didn't take steps to 0:11:49.436 --> 0:11:52.796 take greater care. It actually is the law at the 0:11:52.796 --> 0:11:55.876 state level in most places that a reckless violation of 0:11:55.916 --> 0:11:58.916 that sort is prosecutable. So and they're even lower standards 0:11:58.996 --> 0:12:03.156 of intent negligence in some cases where these cases could 0:12:03.156 --> 0:12:05.396 be prosecuted by the state, but it's not permitted under 0:12:05.436 --> 0:12:08.476 federal law. And that's a problem because there are advantages 0:12:08.716 --> 0:12:13.436 to prosecution. There's this unit that exists to prosecute these 0:12:13.516 --> 0:12:15.916 kind of cases, so they're repeat players. They developed deep 0:12:15.956 --> 0:12:18.236 expertise in how to build these cases and prove them 0:12:18.236 --> 0:12:21.476 at trial to reluctant juries. It also provides a measure 0:12:21.476 --> 0:12:25.356 of independence. Federal prosecutors don't work, at least in this office, 0:12:25.396 --> 0:12:30.036 don't work with local police on a repeat basis. You 0:12:30.316 --> 0:12:33.756 prosecuting street crime, local prosecutors do. So the federal government 0:12:33.756 --> 0:12:37.676 offers a real solution in the sense of independence. That's 0:12:37.676 --> 0:12:39.956 a problem. I think that the public started paying a 0:12:39.956 --> 0:12:43.676 lot more attention to after Ferguson, But it's only a 0:12:43.676 --> 0:12:45.996 real solution if they have the ability to bring cases, 0:12:45.996 --> 0:12:48.116 and right now they don't have the statuary tool they need. 0:12:48.556 --> 0:12:52.836 How many times that specific language of willful when you 0:12:52.876 --> 0:12:57.116 were at DJ did that thwart a possible prosecution of 0:12:57.476 --> 0:13:01.476 an officer you felt had done something wrong. Routinely that 0:13:01.556 --> 0:13:05.636 was the biggest barrier to prosecuting cases. It was always 0:13:05.676 --> 0:13:08.396 the central concern. You know, the concerns are, was this 0:13:08.476 --> 0:13:11.836 unreasonable conduct and thus violation of someone's Fourth Amendment rights? 0:13:11.916 --> 0:13:14.036 And that's a tough one, as I mentioned, but it's 0:13:14.036 --> 0:13:16.876 always was it a willful And often the answer was like, look, 0:13:16.916 --> 0:13:19.036 it's going to be a challenge to prove this was unreasonable, 0:13:19.076 --> 0:13:20.756 but I think we could do it. I don't think 0:13:20.756 --> 0:13:22.796 we're gonna be able to prove beyond a reasonable doubt 0:13:22.916 --> 0:13:25.956 that this conduct was willful. Yeah, And so it was 0:13:26.756 --> 0:13:29.916 the biggest obstacle to accountability and it was routinely present, 0:13:30.236 --> 0:13:32.596 always thought about in cases. You were part of a 0:13:32.676 --> 0:13:36.996 number of very high profile cases, including Ferguson. And Ferguson 0:13:37.196 --> 0:13:40.596 was a fascinating example of what you're talking about, because 0:13:41.276 --> 0:13:44.396 the police officer did not end up being inducted by 0:13:44.396 --> 0:13:48.916 the Department of Justice, but you did launch a pattern 0:13:49.036 --> 0:13:52.596 or practice investigation of the Ferguson Department, and that is 0:13:52.636 --> 0:13:55.836 the one that resulted in something happened. So what is 0:13:55.876 --> 0:13:59.876 a pattern of practice investigation? A pattern of practice investigation 0:14:00.196 --> 0:14:03.516 is a dj investigation into a whole police department or 0:14:03.556 --> 0:14:06.196 some subset of the police department. Perhaps that is looking 0:14:06.236 --> 0:14:08.956 at whether they're systemic misconduct. So it's a way to 0:14:09.196 --> 0:14:13.196 yet not at just individual accountability, you know, which which 0:14:13.196 --> 0:14:15.196 where people can say, well, that was just one bad officer, 0:14:15.316 --> 0:14:18.236 one bad apple, but actually the fact that there's something 0:14:18.276 --> 0:14:22.116 wrong in this police department. There's a pattern repetition of 0:14:22.476 --> 0:14:26.076 constitutional violations, and there are broken systems that allow them 0:14:26.076 --> 0:14:28.636 to proliferate. You know, you need a whole team of 0:14:28.676 --> 0:14:33.636 people who will go down to the jurisdiction and look 0:14:33.636 --> 0:14:36.076 through all the paperwork they can from the police department, 0:14:36.156 --> 0:14:38.676 meet with as many police officers and command staff as 0:14:38.756 --> 0:14:43.476 they can, meet with community members, hold community forums. You know, 0:14:43.476 --> 0:14:46.876 in Ferguson, I read every arrest report, every use of 0:14:46.916 --> 0:14:49.156 force report, and every complaint that they had in a 0:14:49.156 --> 0:14:52.076 five year period. And that was challenging. It would have 0:14:52.076 --> 0:14:54.196 been impossible in a bigger department. And you know, Ferguson 0:14:54.236 --> 0:14:57.756 had fifty five police officers, but other departments, you know, 0:14:57.796 --> 0:15:02.276 have hundreds or thousands. And this is a really important 0:15:02.276 --> 0:15:06.716 part of DJ's power, and it's relatively new. It was 0:15:06.716 --> 0:15:08.916 in the early nineties when this passed as a re 0:15:09.116 --> 0:15:12.676 action to the Rodney King beating and the riots that 0:15:12.716 --> 0:15:15.836 followed the acquittal of the four officers on state charges. 0:15:16.436 --> 0:15:18.836 The events that happened there were a wake up call 0:15:19.196 --> 0:15:23.516 for legislators that this wasn't about just Rodney King. It 0:15:23.556 --> 0:15:26.756 wasn't just about those four officers who assaulted him. It 0:15:26.836 --> 0:15:30.236 was about years and years of degradation and violence and 0:15:30.316 --> 0:15:34.916 misconduct within LAPD. Congress realized they needed to do something here. 0:15:35.636 --> 0:15:37.956 At the same time that these events were becoming clear, 0:15:38.196 --> 0:15:39.836 it was also clear that there were a lot of 0:15:40.316 --> 0:15:44.316 barriers in the law to individuals bringing civil suit. Barriers 0:15:44.316 --> 0:15:45.796 that have to do the standing, that is, who can 0:15:45.796 --> 0:15:48.236 get to court in the first place, Barriers that have 0:15:48.236 --> 0:15:51.716 to do with proving of violation. And so what Congress 0:15:51.756 --> 0:15:55.076 did is they created a new authority for DJ to 0:15:55.196 --> 0:15:59.436 investigate law enforcement agencies where there's a pattern or practice 0:15:59.556 --> 0:16:03.636 of conduct that violates law. And DJ started doing the 0:16:03.636 --> 0:16:07.276 cases in the beginning in the late nineties. So how 0:16:07.276 --> 0:16:10.796 many pattern and practice investors were you a part of it? DOJ? 0:16:11.356 --> 0:16:15.716 We did Ferguson, Chicago, Baltimore, and we had continuing consent 0:16:15.796 --> 0:16:21.036 decrees in many places Seattle, New Orleans. There was also 0:16:21.076 --> 0:16:23.716 work in new work. You know, during the Obama administration, 0:16:24.116 --> 0:16:28.756 twenty five investigations of police departments were opened. Yeah, so 0:16:28.796 --> 0:16:31.436 this was a priority. It was a priority for the 0:16:31.876 --> 0:16:34.636 Obama Justice Department. In the three and a half years 0:16:34.636 --> 0:16:37.516 that Trump has been president, the Justice Department has done 0:16:37.836 --> 0:16:41.596 one investigation. So they also put in place certain memos 0:16:41.596 --> 0:16:44.516 that just make it very hard to bring these cases. 0:16:44.556 --> 0:16:46.676 And there's been a chilling effect as well, even though 0:16:46.716 --> 0:16:49.916 it's formerly on the books. I think attorneys at the 0:16:49.916 --> 0:16:52.596 career level are not bringing these cases and pushing them 0:16:52.676 --> 0:16:55.996 up to the political leadership because they know they're not welcome. Yeah. 0:16:56.036 --> 0:17:00.636 So what happens, so I'm I'm for the town of Ferguson. 0:17:01.196 --> 0:17:04.556 DOJ returns a report which says that there was a 0:17:04.556 --> 0:17:11.156 pattern of practice of unlawful conduct. So what happened next? Well, 0:17:11.196 --> 0:17:14.716 you know, you specify what that pattern or practice is, 0:17:15.716 --> 0:17:18.676 and it's usually constitutional violations. It's important to say that 0:17:18.716 --> 0:17:22.636 we found a pattern of First Amendment violations, of excessive force, 0:17:22.756 --> 0:17:26.196 of racial discrimination, and violation of the fourteenth Amendment. You know, 0:17:26.196 --> 0:17:29.236 you put it out there, make the findings public, and 0:17:29.276 --> 0:17:33.796 then there's you know, begin a process of negotiation and 0:17:33.876 --> 0:17:36.036 consultation to see if this is a case that will 0:17:36.076 --> 0:17:39.716 resolve short of litigation. And so, you know, in Ferguson, 0:17:39.716 --> 0:17:41.476 for example, what we do is we made the report 0:17:41.516 --> 0:17:44.356 public and we very quickly after that, we're in Ferguson 0:17:44.956 --> 0:17:49.076 meeting with officials in the town and for the police 0:17:49.116 --> 0:17:51.076 department and also with the community. You know, we held 0:17:51.076 --> 0:17:55.196 a community forum where we explained our findings, took questions, 0:17:55.196 --> 0:17:58.036 and actually broke up into small groups that are hundreds 0:17:58.076 --> 0:18:00.996 of people who attended, and in these small groups, we 0:18:01.436 --> 0:18:04.756 took ideas for what reforms did people want to see 0:18:04.876 --> 0:18:08.076 in a reform agreement. And it's just hours and hours 0:18:08.116 --> 0:18:11.476 of negotiation between DJ, the attorneys and other staff and 0:18:11.556 --> 0:18:15.276 the DJ team and city council members or whoever it 0:18:15.356 --> 0:18:17.196 is that's coming to the table from the city where 0:18:17.196 --> 0:18:19.556 the police department is, and the goal is to get 0:18:19.596 --> 0:18:23.156 to an agreement that becomes what's called a consent decree, 0:18:23.236 --> 0:18:25.156 which is it's an agreement that becomes an order of 0:18:25.156 --> 0:18:27.956 the court and it's more powerful in specific ways than 0:18:28.316 --> 0:18:31.356 a private out of court agreement, and there are various 0:18:31.436 --> 0:18:34.676 ways in which the community can impact that even though 0:18:34.716 --> 0:18:37.436 the community is not technically a party to the lawsuit 0:18:37.476 --> 0:18:41.356 that will be filed in what community do you think 0:18:41.876 --> 0:18:46.356 this process worked best? Is there a shining example of 0:18:46.876 --> 0:18:50.356 patterns and practices really turning around a troubled police department. 0:18:50.836 --> 0:18:52.756 You know, one place where I think there has been 0:18:53.156 --> 0:18:57.196 some success is Seattle. It's again not a complete success, 0:18:57.236 --> 0:19:00.356 but there are some good indicators. So the Department of 0:19:00.356 --> 0:19:02.956 Justice entered a consent decree with Seattle in twenty twelve, 0:19:03.436 --> 0:19:06.636 and if you look at the numbers comparing twenty eleven, 0:19:06.676 --> 0:19:09.156 the year before the consent decree to twenty nineteen, in 0:19:09.236 --> 0:19:11.996 a most recent year where we have full data, serious 0:19:12.076 --> 0:19:16.076 use of force declined sixty in that period. Yeah. Yeah, 0:19:16.076 --> 0:19:18.276 So it's had an impact, and they're still working on 0:19:18.316 --> 0:19:20.916 some things, but it has had some success. And I 0:19:20.956 --> 0:19:23.316 think there are other departments that look very different today 0:19:23.356 --> 0:19:25.756 than they did before. New Orleans is another one that 0:19:25.796 --> 0:19:28.956 comes to mind, where there were just repeat acts of 0:19:29.116 --> 0:19:33.596 violence and murder in that department and other systemic problems, 0:19:33.636 --> 0:19:36.036 and that department looks a lot different today. Again, it's 0:19:36.076 --> 0:19:39.516 not the model, and they're not free from excessive force 0:19:39.676 --> 0:19:42.916 or discrimination. But it looks a lot different today. Would 0:19:42.956 --> 0:19:47.916 you if you had to choose, hypothetically someone said to you, 0:19:47.916 --> 0:19:49.676 you can only do one. You can either change the 0:19:49.716 --> 0:19:53.676 willful standard or you can have patterns of practice investigations. 0:19:54.596 --> 0:19:59.836 Pick which one would you choose? Okay? Well, I was 0:19:59.876 --> 0:20:03.796 trying to avoid having to identify one thing because because 0:20:03.796 --> 0:20:05.916 it's the nature, even these two things aren't enough to 0:20:06.636 --> 0:20:10.476 transform policing. But between those two, I, although I spent 0:20:10.636 --> 0:20:14.076 more of my time doing the criminal prosecutions, I would 0:20:14.076 --> 0:20:17.196 say emphasized reforms on the pattern or practice side. I 0:20:17.236 --> 0:20:19.116 think there are things we could do differently even from 0:20:19.156 --> 0:20:21.396 how we did them at the Justice Department when I 0:20:21.436 --> 0:20:23.636 was there, And it's one of the few tools that 0:20:23.716 --> 0:20:28.836 exist to try to change a department overall, as opposed 0:20:28.836 --> 0:20:32.636 to just take out a few bad officers. You know, 0:20:32.916 --> 0:20:37.156 right now, the rallying cry in many of the protests, 0:20:37.276 --> 0:20:40.676 among many of those post George Floyd, has been about 0:20:40.716 --> 0:20:44.596 defunding the police or these kinds of terms are being 0:20:44.596 --> 0:20:49.356 thrown around. What's your reaction to that line of proposed reform. 0:20:50.276 --> 0:20:54.036 So there's this way in which police have both underserved 0:20:54.476 --> 0:20:59.116 and you know, over policed communities, underserved in the sense 0:20:59.156 --> 0:21:01.036 that you know, in many communities they don't come when 0:21:01.076 --> 0:21:03.356 you call nine one, or they haven't solved murders and 0:21:03.476 --> 0:21:06.116 rapes and other serious crimes where the police are the 0:21:06.876 --> 0:21:08.916 ones who are you know, people turn to you for 0:21:08.916 --> 0:21:13.396 that kind of service, and yet they're present. They're arresting 0:21:13.396 --> 0:21:16.556 people for order violations, you know, focusing on turnstile jumping 0:21:16.636 --> 0:21:19.996 in New York or the Ferguson example would be you know, 0:21:20.036 --> 0:21:22.876 ticketing people and arresting them for failing to show up 0:21:22.916 --> 0:21:26.076 for warrants on faire to keep their law and in order. 0:21:26.196 --> 0:21:28.356 So all of this kind of order policing that police 0:21:28.356 --> 0:21:31.356 have engaged and that doesn't really get to public safety. 0:21:31.876 --> 0:21:33.996 So I think that's where this is going. And you know, 0:21:34.036 --> 0:21:38.236 we should invest in forms of public safety that we 0:21:38.556 --> 0:21:40.756 believe in, that we believe are equitable and that are real, 0:21:41.076 --> 0:21:43.756 and that will really change our communities. That's what I 0:21:43.796 --> 0:21:45.836 make of it. I think this is a local, locally 0:21:45.876 --> 0:21:50.156 driven thing, and we should welcome this conversation and really 0:21:50.316 --> 0:21:53.716 step into it. And people should be lobbying their city 0:21:53.716 --> 0:21:56.476 council and their mayor for what's in the police budget. 0:21:57.676 --> 0:22:01.756 I asked you before to choose between two important mechanisms 0:22:01.756 --> 0:22:03.796 for dealing with police violence. Now I want to ask 0:22:03.796 --> 0:22:08.756 you the opposite question. I've made you CSAR, and I've 0:22:08.796 --> 0:22:11.276 given you back patterns and practices. I've allowed you to 0:22:11.396 --> 0:22:16.796 change the willful language. Give me two other things that 0:22:17.036 --> 0:22:20.116 would that you would do tomorrow if you could, that 0:22:20.276 --> 0:22:24.796 you think would help us confront this issue of police violence. 0:22:25.876 --> 0:22:28.956 One thing I would do is invest in non police 0:22:28.996 --> 0:22:34.636 responses to social crises and emergencies. So here I'm thinking 0:22:34.676 --> 0:22:36.676 about there are a lot of situations where someone's having 0:22:36.756 --> 0:22:41.116 a mental health crisis, or you know, there's an argument 0:22:41.436 --> 0:22:44.356 and it's not actually posing a public safety risk. You know, 0:22:44.396 --> 0:22:46.436 where you need somebody who has a badge and a 0:22:46.436 --> 0:22:49.116 gun to respond, But you do want somebody who's trained, 0:22:49.276 --> 0:22:53.036 maybe in substance abuse treatment, maybe in mental health awareness, 0:22:53.436 --> 0:22:55.436