The Need for Public Police Brutality Trials

Hard cases, the maxim goes, make bad law. So it is hardly surprising that the Connecticut General Assembly is poised to weigh in on the use of deadly force by police officers with a sloppy piece of legislation. I wonder, really, whether new laws are necessary. And if they are, I harbor doubts about the bill unanimously passed by the Senate.

This year's domestic news has been dominated by films of protest and reaction in Ferguson, Missouri, endless videos of a fatal police takedown on Staten Island, and, let's not forget, the killing of Freddy Gray in Baltimore. Did I neglect to mention the police shooting of the unarmed man in North Charleston, South Carolina? My bad.

Suddenly, everyone is talking nonstop about police use-of-force claims, as though our shores were just invaded by marauders in blue.

From where I sit, in a boutique law firm devoted to the defense of those accused of crimes and responding daily to calls for help from folks statewide, there are fewer claims of unreasonable force than ever. I can name dozens of folks banged around or killed by cops. Their cases never went viral.

What has changed is that the public is now aware of cases of police violence, and paying attention, as never before. The Internet and YouTube are game changers.

I spoke not long ago to a seemingly demoralized group of police chiefs. I told them I worried they will lose men and women to violence as a result of all this new attention. Officers will become gun-shy now, knowing that politicians can score points second-guessing street-level decisions to use force.

"Take your case to the public," I told them. "Don't be afraid to let juries see for themselves the reality of the streets."

Too often police officers hide behind qualified immunity, a legal doctrine that judges created out of whole cloth. This doctrine permits judges to prevent juries from hearing evidence in close cases. Qualified immunity, so the cases say, is intended to protect all but the plainly incompetent.

That may be just fine and dandy chatter for the judicial class, but communities bleed red and erupt in anger when a man or woman is killed by a police officer. Public trials are a way of building consensus; forcing officers to answer to their peers in open court can educate a distrustful public.

I told the chiefs to instruct their corporation counsel not to raise qualified immunity as a defense. "Sure, you might lose a case or two that you might otherwise have had a judge throw out, but the fact is police win most of these cases most of the time.

"What would you rather do: Lose officers to a weeklong trial, or lose a neighborhood to flames and looting in the event something goes horribly wrong?"

Transparency is a good thing.

The Senate's "accountability" bill calls for equipping state police with body cameras; it offers state funding to municipal departments willing to mandate cameras. Cameras are a good start. Preservation of evidence matters, although to matter, the courts will have to get tough when important video evidence suddenly is "lost."

Calling for additional training sounds good in theory, but it is meaningless in Connecticut. I've been cross-examining cops for decades. Officers are well trained in the use of force. Additional training is like asking an editor to take a spelling refresher course: It can't hurt, but it won't help much.

The suggestion that lethal-force claims be investigated by a special prosecutor is, frankly, stupid. While it makes sense to move such investigations into the office of a prosecutor from a different jurisdiction, it makes no sense to create a special prosecutor. Police use of force is a routine part of the job of policing; we need to depoliticize these cases, not create a bully pulpit for the ambitious.

But the most meaningful change is one the legislature can't effect. Federal judges need to abolish qualified immunity. There was a time when police violence claims could be tried to a jury. Then the judges slammed the courthouse doors shut. Shame on the bench. It's small wonder many communities believe police officers are unaccountable—the judiciary treats them that way.

Police use-of-force claims aren't increasing. Our awareness of claims is increasing. I say try such cases in open court. Let jurors decide what is, and is not, reasonable.

As I told the police chiefs, education is not to be feared. I learned to respect police officers after cross-examining hundreds of them about how they do their job. Why not let jurors learn about policing too?

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