Monday, December 15, 2014

Overcriminalization and Excuses for Police Misconduct

     Another attorney, Shane Benson, shared an article this week from the Washington Post, which stated, "Overcriminalization has become a national plague. And when more and more behaviors are criminalized, there are more and more occasions for police, who embody the state’s monopoly on legitimate violence, and who fully participate in humanity’s flaws, to make mistakes."

This is my response to Shane and that article.  It will not be solely responsive to the issue of overcriminalization, but will give you some fine examples from our great Bluegrass State.

These days the issue of police brutality/over-militarization/police misconduct seems to be omnipresent.  Good.  Regardless of your position, I’m glad the discussion is open.  We should talk about this.  It’s good for us. 

For those of us who live in the trenches of civil rights litigation, we usually have pretty strong opinions on the subject.

Inevitably in the conversation about police misconduct, you hear one or both of these things: 1) “If you don’t do anything illegal, you don’t have to worry about the cops.”; or  2) “[police officers] have to have officer safety as a #1 priority.  You never know if somebody might have a weapon.”

Let’s start with #1. “If you don’t do anything illegal, you don’t have to worry about the cops.”

First, the statement is patently and objectively false.  I’ve represented multiple clients and collected thousands and thousands of dollars in settlements because police stopped/ searched/ detained/ arrested/ used force on someone who wasn’t doing anything illegal.  I’ve also represented a slew of clients who were arrested and were genuinely Not Guilty of the crimes for which they stood accused. 

Police officers are people just like me and you.  They make mistakes like we do.  But their mistakes can be more dangerous.

Second, the statement is terrifyingly misleading and shifts the focus of a discussion from freedom to safety.  Essentially, the statement “If you don’t do anything illegal, you don’t have to worry about the cops.” is a way of saying, in the negative, “Cops save us from criminals. And I’m not a criminal so that’s good for me.”  

If you believe that we should give up freedom for safety, fine.  But I’m not signing up for that.  Benjamin Franklin said “Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.”  Giving up liberty is not safe in the long run.  It’s a lot more dangerous than the criminals among us.

Which brings me to the next point.

Third, everyone does illegal things.  We are all criminals.  Show me one person who has never violated the law.  One.  To say that only criminals need to worry about police misconduct is to say that all of us need to worry about police misconduct.  Stop assuming that criminals are bad people who deserve whatever punishment a police officer decides to dole out on that particular day, and start understanding that we all break the law at one time or another and that people’s Constitutional Rights matter.

Let me tell you about the ways you break the law.

Aside from the slew of people around us (not you, of course, you would never do these things) who may have had a few drinks and driven, smoked a joint in college, taken something that wasn’t theirs or written a bad check, the vast majority of people around us violate laws, regularly, sometimes without any knowledge of their criminal conduct. 

Do you or someone you know have a pill container to keep your prescription medicine in – for vacation or for normal daily use?  That’s illegal.  You can’t even separate some pills into baggies to keep in your car or at work for “use as needed.”  Unless you ALWAYS keep your prescription medication in the original container, it’s a class B misdemeanor.  KRS 218A.210.  I, personally, am a criminal.  I’ve taken multiple prescription pills in a baggie on vacation.

Have you or someone you know ever worked on Sunday in Kentucky?  That’s illegal.  Pursuant to KRS 436.160, that’s a violation of the law (even though most states have long abolished these type of laws).  I, personally, am a criminal.  I work every Sunday.

Did you know that dentists, chiropractors and doctors who advertise are criminals?  KRS 438.065 expressly prohibits advertising or soliciting by those in the “healing arts.”  They can get up to a YEAR IN JAIL for that. 

These are just a few examples of laws that we all break regularly – sometimes with no conscious decision to violate the law.

So don’t let someone in this type of conversation look down their nose and pretend they’re not a criminal.  These people, these criminals like us and among us, are the ones saying “If you don’t do anything illegal, you don’t have to worry about the cops.”  Snotty bastards.  Don’t be so arrogant to think the legal shortcomings of everyone else are in some way worse than your own.  Everyone has their own reasons for violating the law.  Some people get away with it and some people “have to worry about the cops.”

You know what the crazy part about it is?  I really don’t have to worry about it.  I don’t have to worry about my criminal activity.  These dentists – the ones advertising on television and billboards – they are committing a crime a full class higher than possession of marijuana.  They don’t have to worry about it, either.  Do you think they’re hiding their criminal activity in an Altoids tin beneath Wendy’s napkins in their glove compartment???*  No.  They commit a crime that could land them a year in jail – and they literally advertise it.  You know what?  They don’t have to worry about police, either. 

Why do you think that is?

Let’s move on to #2.  “[police officers] have to have officer safety as a #1 priority.  You never know if somebody might have a weapon.”  Both of those statements are true, and neither are an excuse for police to be held to anything other than the highest level of accountability.

Police officers do have to consider officer safety to be the #1 priority.  Absolutely.  They need to get home to their families just like I do.  Which is why we allow officers to use force, even deadly force, when circumstances allow. 

But let’s not start spitting out the phrase “officer safety” as an excuse to refrain from discussing whether the circumstances allow.
Being a police officer is a dangerous job.  And the good ones are to be highly commended (and honestly should be paid twice what they’re paid).  The bad ones should be cut out like a cancer.  I don’t know why this statement makes people uneasy.  I’m a lawyer.  And when I hear about a lawyer in this city who swindled a client out of money or committed a heinous violation of the ethics rules, I think “that guy/gal gives us a bad name.  I wish they weren’t a lawyer.”  Police officers, however, are a brotherhood.  It is the FRATERNAL order of police.  They back each other’s plays.  In my experience, I have found them much less likely to support cutting out the bad members of their occupation.  That’s unfortunate.

That brings us to the second part of the phrase “[police officers] have to have officer safety as a #1 priority.  You never know if somebody might have a weapon.”  Let’s talk about the “weapon” part.

This is an odd phrase.  “You never know if somebody might have a weapon.”  It’s like saying “It is what it is.”  You really haven’t said anything at all, but for some reason people hear it and think the discussion is over.

Obviously it’s true.  If the person you are dealing with is wearing any clothing at all, it is possible that they could be hiding a weapon.  No doubt.  Fortunately for those of us who give a damn about civil rights, the question of whether police brutality is acceptable doesn't hinge on whether the person was wearing clothes.

The question for determining how much force can be used is not “could the person have been hiding a weapon?”  If an officer frisk searches someone or used force solely because a person “may have had a weapon” the question is “Did the person give the officer any reasonable, articulable suspicion that they were armed and dangerous?”

The question is not: “Could they have had a gun?”  The question is: “Is there any evidence that they had a gun?” 

One means an officer has justification to engage the subject.  The other gives a police officer carte blanche.

In short, I’m glad we’re talking more about police misconduct.  I’ll leave you with this thought – Police officers have an incredibly difficult job.  Thank God for the good ones.  We should make sure they are commended.  And as for the bad ones – there’s nothing more dangerous than a dirty cop.  No criminal in the world is more dangerous. 

If we don’t cut them out, none of us are safe.


*Don’t hide your weed there.  They always look.

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