“Nearly all men can stand adversity, but if you want to test a man’s character, give him power.”  Abraham Lincoln

We have all seen hours of videos of recent events involving the police killing black men and their responses to protestors, the vast majority of which were being peaceful by most accounts (including the FBI’s).  I’m not going to talk about the specifics of what you have already seen.  When I discuss this issue with people I often say, “I could tell you stories…..”.  So I will.  Here and now, and the stories will be from close to home.

        I’ll preface this by saying some of the best people I have know have been cops.  So have some of the worst.  I can say the same about judges and lawyers.  The commonality is power.  They all have it.  How they use their power is the test of character, as President Lincoln famously stated.

We are all human and we all make mistakes.  But a mistake is different from a character trait.  Those who don’t possess the strength of character to wield power should never make it into a position where power is inherent in their profession.  Odin knew this (at least the Marvel Comics’ version) when he placed the enchantment on Mjolnir, “Whosoever holds this hammer, if he be worthy, shall possess the power of Thor.”

It is time to transfer this principle to those in power in the justice system.  Let’s start with cops……

Case 1 happened in a county near my office.  A Deputy pulled over a male driver.  The gentleman had a sever anxiety disorder which the Deputy failed to recognize despite multiple clues.  In a heightened nervous state, the driver turned off his engine but left the car in “drive”.  Seeing the driver’s nervous state, the Deputy demanded the keys be taken out of the ignition.  The driver tried to comply, but couldn’t get the keys out.  He didn’t realize the car was in gear and that this prevented the keys from being removed. 

      Frustrated, the Deputy grabbed the driver by the neck and pulled him from the car.  He then knelt on the driver’s neck despite any lack of resistance.  The driver was handcuffed and arrested for DWI.  He had a low blood alcohol content.  The case was reduced to a traffic infraction.  After the arrest, the drive complained his neck hurt.  He went to the hospital after being processed by the booking off at the Sheriff’s Department.  He waited 8 hours and left in frustration.  He went back the next day seeking an exam and waited 6 hours.  X-rays were taken and he was sent home, being told he was fine.

      As the driver was preparing to chop wood the next dang, his phone rang.  It was the hospital.  He was told to sit down and not move.  A competent radiologist had reviewed his x-rays and determined his neck had been broken.  An ambulance was sent to get him.  He made a decent recovery.

      I filed a civil Notice of Claim against the Sheriff’s Department and the Deputy because of the unnecessary and excessive use of force which resulted in the driver’s neck being broken.  Unfortunately, the same sever anxiety disorder which led to the driver not being able to get the keys out of his ignition also disabled him.  He could not proceed with the claim due to the stress the process brought to him. 

      The Deputy remained employed and suffered no discipline I became aware of.  He had little ability to recognize the driver’s anxious condition, or if he did, he responded with frustration and violence instead of de-escalation and calm.  The driver was almost killed.

      In Case 2, a municipal police department had a reputation for being rough a the street in their city where most of the night life occurred.  At the time, there were no video cameras on the street or the officers.

      A verbal conflict between two men led to one spitting on the other and walking away.  The police ordered him to stop.  He complied and put his hands in the air.  Four officers approached him, spun him around, threw him into a brick wall, and then put him on the ground where they proceeded to pummel him with their fists.  He had not offered resistance.

    One cop drew back his arm to throw a punch and in doing so struck another cop in the face with his elbow.  The solution to having an officer injured?  The cops charged the spitter with felony assault against the injured officer.  The offense carries a maximum penalty of 2 1/2 to 7 years in state prison.

    The accused could afford a private investigator so I hired one.  East Coast Investigations did what they usually do……a fine job.  They found 6 witnesses, none of whom had any connection to the accused, who gave statements consistent with each other.  I have summarized their accounts here.

    With the multiple sworn witness statements in hand, the DA did the right thing.  The felony charge went away as fast as cookies at a pot party.  The spitter took a plea to a non-criminal petty offense (Disorderly Conduct) arising out of his interaction with the guy he spit at.  What the DA did not do was charge the police with felony gang assault or with giving false statements. I know of no professional discipline levied against them.

In Case 3, my African-American client was traveling from his Vermont home to some outlets in New York State.  He was driving his BMW.  His pregnant white wife was by his side.  He was pulled over because he had forgotten to resolve an old traffic ticket in NY and had unknowingly been suspended in this state.  The police have electronic plate readers which gave them that information.

Without any reason to believe any offense had been committed other than these traffic matters, the police searched his car.  He did not give consent.  They torn apart his car and did several hundreds of dollars of damage in the process.  They found his safe (designed to look like a soda can) which contained over $12,000 in cash.  Working in the music industry, it was not unusual for my client to carry cash.  

The police spent the next hour accusing him, without any evidence, of coming to NY to buy drugs.  They brought the dog to sniff the car and found nothing.  The dog “hit” on the money.  There are studies that show 80% of the bills in the US have traces of cocaine on them (https://www.marketwatch.com/story/this-is-exactly-how-often-cocaine-and-feces-show-up-on-your-dollar-bills-2017-07-11).  It would have been unusual if the dog had not hit on the money.

    The police seized his cash and arrested him for traffic offenses.  He hired me.

      The client was stopped by one of the same officers on a December day while he was driving to my office for an appointment.  There had recently been a snow storm.  My client, like almost everyone else on the road that day, had some snow on his license plates.  One of the same officers pulled him over for “obstructed plates”.  The cop (not a city cop) recognized the driver. 
The cop said, “What are you doing in my town?”  The only word missing from his sentence was “boy”……or worse.

      At trial on the obstructed plate charge, the cop admitted asking this question.  I asked him where on the road coming into town was there a sign which said, “Welcome to Saratoga Springs, property of ….insert cop’s name….?”  He admitted there was no sign.

    Did my client’s license plate have some snow on it?  Yes…..as did every other car that day, none of whom were stopped by this cop.  The Judge took the easy way out. Instead of recognizing selective enforcement with implicit racism attached, he followed the letter of the law and found my client guilty.

      The action I filed in federal court to retrieve my client’s money went far better.  We were able to settle with the US Attorney and retrieve about 95% of my client’s cash.

In Case 4 my client ….  “John”…..was a young college student.  On the first weekend of the beginning of the fall term, he hosted an off-campus party at his rented house.  A neighbor called the police due to the noise.  John was standing on his front porch with 6 other students, some he knew and some he didn’t.  The police had entered from the back door.  John had not seen them.

      One of his guests said to John, “The police are here.”  Being young and a little cocky, and not seeing the large cop who had just stepped out of the house and onto the porch behind him, John shrugged and proclaimed, “Fuck the police.”  The cop behind him could have seen John as just a kid.  Another college student with too many beers in him talking tough to impress his friends.  Instead, being possessed of seemingly very hurt feelings, the cop grabbed John from behind and slammed him with considerable force face first into the exterior wall of the house.

      John hadn’t seen the cop.  The cop had not announced his presence or that he was a cop.  All John knew was that he was being attacked from behind.  Not wanting to repeat the experience of being slammed into another wall, he wriggled free and jumped over the porch railing.  The cop reached for John and hurt his ribs by colliding with the railing.  John was charged with felony assault against a police officer.

    East Coast Investigations was retained.  They found all the witnesses.  Armed with multiple sworn affidavits, I met with the DA.  He wanted the case to cool down for a bit and asked for patience.  Since the college had presumed guilty and expelled John, the defense was willing to oblige.  Some months later, the felony charge was reduced to the non-criminal offense of Disorderly Conduct.  A fine of $100 was imposed and the file was sealed.  No criminal conviction.  But, as in Case 2 the lying cop who had used unnecessary and excessive force was neither charged with the appropriate crimes or disciplined by his department.

    The cop in Case 4 finally went too far and got into a fight in a bar while he was off duty.  He hurt someone in the presence of too many witnesses.  He was arrested and charged with assault.  He was given the option…..resign and have the charge adjourned in contemplation of dismissal…..or be prosecuted.  He resigned.

I have more war stories in this vein. So do other criminal defense and civil rights attorneys I know.  How many cops operate ….and how their departments allow and encourage them to do so with impunity…..might be shocking news to most people, but it is old news to the defense bar. 

       When I hear complaints about the backlash against police misconduct, I think, “Cry me a river.  It is way past time.”

People with power need to be held to a high standard.  We should be recruiting the best and the brightest.  Instead, one police department made the news a few years ago for refusing to hire an applicant because his IQ was too high.  The reasoning was because he was a smart guy he might get bored and quit.  The case went up to the federal 2nd Circuit Court of Appeals.  The police department won.  They have a right to hire only mediocre and less intelligent people. 

    But there is hope.  Here is an NPR story about the reforms which worked in Camden, NJ.  https://www.npr.org/sections/live-updates-protests-for-racial-justice/2020/06/08/872416644/former-chief-of-reformed-camden-n-j-force-police-need-consent-of-the-people

      Now that I’ve gotten these stories off my chest, maybe I’ll go look for Odin to see about getting the enchantment he put on Mjolnir put on every cop’s badge and gun.

Here is a study which goes beyond the anecdotes I have offered here.  The problem is systemic.  Some prosecutors are complicit…..it couldn’t happen if they weren’t.  There needs to be a fundamental overhaul and system of holding accountable those who misuse their powers.