Getting The Government We Deserve
I spoke to a young lawyer on the telephone this evening. He was despondent about the state of the law. Why, he wondered, are juries so quick to believe what police officers say, even when there is powerful evidence that the police have lied? The young man had recently tried and lost a case alleging unreasonable force against a police officer. He was thinking of abandoning the pursuit of justice as to errant police officers.
It was a painful conversation for me. Early in my career, John Williams of New Haven took me under his wing. He was one of the nation's pioneers in the application of the Ku Klux Klan Act's remedies against police officers. The act, codified at 42 United States Code Section 1983, permits people to sue government actors for money damages when a person's rights are violated. I have tried scores of these cases over the years, and I have won many of them.
Plaintiffs rarely win these cases any longer. It is difficult to get one of these cases to a jury. A powerful judge-created body of law known as qualified immunity empowers judges to throw the overwhelming majority of these claims out of court before a jury ever gets a look at the case. It's a cops world in the courtroom these days, and don't think police officers don't know it. Today a prison official taunted my partner while the jury wasn't looking. I undersand why some law enforcement officers deserve to be called "pig."
Even when cases do get to a jury they are an uphill struggle. Tonight it struck me why this is so. A case against a police officer for a Fourth Amendment violation alleges an unreasonable search or seizure, or the application of unreasonable force. Just what is and is not reasonable is nowhere spelled out in the Constitution. Reasonableness is what lawyers like to call a mixed question of law and fact. It often takes a jury to decide whether the force used at the time of an arrest, or the length of time the police held an individual, was reasonable. Juries set the standard for what is and is not acceptable in these closely watched cases.
Hence the rub. A jury frightened and inclined to value security more than liberty might well conclude that more heavy-handed law-enforcement tactics are reasonable. Did 9/11 change the attitude of jurors?, a lawyer I spoke to today wondered. I don't think it is that simple. I prefer to think in terms of a longer term cycle of the sort that Arthur Schlesinger, Jr., wrote about. Our national mood swings from right to left in broad spiralling arcs. We seem to be in a conservative stretch just now. I suspect cultural historians might find deeper similarities between our social mores today and those of the 1950s.
That is an assumption the bears exploration. While it is obvious that sock hops and penny loafers are not fashionable, there does seem to be a spirit of conformism in the land. Both political parties claim differences, but are depressingly alike in the partisan sniping. There is no real cultural ferment provoking change or insight into settled practices. I wonder, really, whether we're settling into some vast electronic cabbage patch, each of us habituated to lethargy by the rhythmic sound of key strokes and the instant gratification of seeing our words and images appear instantaneously before our eyes. It is so easy to create virtual worlds that the world of work, play and social interaction are compressed in a steady stream of data that makes zombies of us all. Can this leaden spirit create conformism?
In the end, we get the government we deserve. When jury after jury returns a verdict exonerating police officers for using guns, tasers and clubs on us, then the message is that it is reasonable for the wolves to feed on we sheep. When juries conclude that the police cannot lie it encourages police lying as a means of excusing the inevitable mistakes that members of every profession makes. When jury after jury decides that whatever the police do is all right, it sends a message: The people have the right merely to trust and obey the badge.
Tomorrow my partner will give final arguments in a police misconduct case. The police are accused of using excessive force against a young black man. He testified in prison garb. Our witnesses largely disappeared and ducked subpoenas. They were afraid. When police officers testified, most of their stories cohered. But when one officer stood up and contradicted what the other officers said, the jury listened, looking troubled. The real question is what the jurors will do with what they've heard. Will they ignore the contradictions in the police testimony and conclude that young black men in urban areas need a little roughing up from time to time? Or will they sit up tall and erect and hold the officers accountable?
Jurors choose who to believe not based on a formula. We believe what we find reasonable and what makes us comfortable. These days the federal courts seem filled with jurors looking for reassurance. Hence, they forgive police officers when the decision to disbelieve would yield too much internal discomfort, too much cognitive dissonance. Do we say police are good because we want them to be good, the evidence notwithstanding?
So we get the government, and the policing, we deserve. A nervous public seeking security can't handle the truth that in the dead of night it is a wonder more young men of color are not shot dead. When violence erupts, jurors forgive because it corresponds to their hope of a safe world. But year after year of these dreams yields the nightmare of government and police emboldened to consider as reasonable what was once shocking. My partner awaits a verdict tomorrow fearing the jurors will find reasonable conduct that a decade or so ago would have appalled. I hope he is wrong, and that his jury will conclude that police officers are accountable to the people they police.
The verdict in a constitutional case goes a long way toward constituting the very shape and texture of the society in which we live. I fear we are becoming too complacent, thus emboldening the polcie to be even more aggressive in the manner in which they protect us. Who protects of from the police if jurors refuse to hold them accountable?