“It may be true that the law cannot make a man love me but it can keep him from lynching me and I think that is pretty important.” —Martin Luther King, Jr. Wall Street Journal, November 13, 1962
Most cops are good. But it is only through a legislated system of clear penalties that we can ensure “most” means a high percentage majority and not the technical cynicism of 51 percent.
In May, the Civilian Complaint Review Board (CCRB) of New York City released its annual report for 2014. Its findings exposed a high number of serious false statements made by arresting police, thanks mainly to cell phone video. Though the palpable evidence seems like a vindication of sorts, the subsequent protocol of disciplinary action is where the real injustice takes place. As stated in the New York Daily News:
“The CCRB does not have the jurisdiction to probe false statement allegations, but the agency forwarded its findings to the NYPD for further investigation.”
The procedure is to have the CCRB present the complaint back to the police department to investigate themselves. What, then, is the purpose of the CCRB?
When a civilian files a false report it is considered a crime. When a cop does the same, the penalty is enacted at the discretion of the supervisor—a colleague who might also have ties to the incident. This laughable double standard perpetuates throughout interactions between police and civilians: Police are quick to release the rap sheet of a suspect yet hesitate to disclose the arresting officer’s history of misconduct. Why does a “pattern” only support the incriminating behavior of the arrested and not the arrestors?
We live in a country where the democratic process allows us to elect new local and state legislators if we feel they are failing us. But we’re not given the same power when it comes to the state’s armed representatives. Police kill by the dozens and call it a sting; they operate with mocking, arrogant, and illogical ad hoc impunity that, for example, allows them to steal cash under the laws of civil forfeiture.
Given this, I would like to propose a method for evening the power relationship between police and the citizens they are meant to protect: Three Strikes for Cops, a disciplinary program designed to counter power abuse recidivism by repeat offenders through financial penalty and possible job termination.
Police should not be held above the law they are paid by the public to enforce. Yet, given the life-threatening occupational hazards and bureaucratic variables, the structure should be more lenient than the existing criminal counterpart.
Proposed General Framework
- A strike is the penalty arising from a formal complaint (criminal or civil) based on an incident that resulted in a non-indictment, acquittal and/or settlement.
- Examples of a strike: Excessive force of an unarmed or restrained suspect; false imprisonment; falsifying police reports; harassment/intimidation of a fellow officer; planting contraband/scene tampering.
- A strike doesn’t cancel out punishment; it reinforces prevention with rollover disciplinary action in the event little to none is taken on persistent offenders. Remember, condoning captains have the power to give one day desk duty and call it punishment.
- The lenient guidelines allow up to three strikes per category. Meaning, three strikes is applied to the same violation (e.g. excessive force). Officers can have two strikes in multiple categories without penalty.
- The third strike does not result in automatic termination, but instead the officer is suspended without pay, which must last at least 30 days, a demotion, and is put on a one to three year probation and pension reduction period. If an officer gets another strike during the provisional period then he or she is automatically fired. If the strike occurs after the probationary period has ended, the officer is given another reduction of pension with promotion ineligibility.
- Strikes are also an effective way to establish more consistent settlement tiers, which better manages taxpayer dollars.
- If a civilian dies unarmed or in immediate custody (72 hours), there should also be automatic restitution for the victim’s family in the case of rulings with small settlements. If there is a non-indictment, the parents, wife and/or children should be exempt from local and state taxes for the duration said officer served on the force.
Why Body Cameras Aren’t Enough
Police lobbyists are working relentlessly to prevent transparency, whether it’s by making it illegal for bystanders to videotape them or rejecting the use body cameras completely. While body cameras are a great prescription for better accountability (assuming officers don’t deliberately turn them off), the footage does not wholly prevent officers from manipulating justice in their favor.
Let’s apply Three Strikes for Cops to a scenario to demonstrate how it works.
“…he suspect stepped from the doorway and suddenly jabbed the screwdriver at my partner and then seemed to lock onto me and began to move toward me jabbing the screwdriver at me in fast motions.”
As per the video, that is completely false. Here’s the thing: making false statements, which is perjury, are critical in manipulating the Grand Jury in not going to trial—and, in Harrison’s case, it was all caught on video.
Under Three Strikes, officers would have one strike in the category of excessive force and one strike in the category of falsifying a police report, especially since they have contradictory accounts of who Harrison allegedly attacked first. Remember, this does not put them in two-strike jeopardy since they are separate categories.
Understanding the Game
Police often do as they please when dealing with due process. One prosecutor likened the non-cooperation of Cleveland PD to an “organized crime syndicate.” All across the country, if police departments decide they don’t want to release an incriminating video, they don’t. If officers don’t want to include vital information in a police report, they leave it out. In the case of Michael Brown, the unarmed black teen shot in August 2014, an incident report was never originally filed (the department later made up for that grave error). I believe the misappropriated police code for that is “NRN – No Report Needed.” Officers on the Bellefontaine police force in St. Louis, MO, however, define the acronym as “Nigger Running North”—an insidious reference to America’s Antebellum past, a haunting sign of the legacy that still traps the black body.
Twenty-eight states have enacted a three-strikes law to make crime just a friendly game of America’s pastime. So why doesn’t the basic rule apply to both teams? We already know the umpire is calling wild pitches as strikes. At least make it a fair: Just as repeat offenders are sent to jail for a third offense (no matter how minor the crime), police should be eligible to lose their job after three strikes.
Off the field, there’s still the influence of elections, ambitious lawyers, judges, forensic experts and the coroners pressured to spew words like “inconclusive” to aid in a cop’s acquittal. Most of these professionals and experts work with the police department on a daily basis. Loyalty, as you know, has its privileges.
Code of the Beat
Cops frequently say, “if you didn’t do anything wrong you don’t have anything to worry about,” but that’s not necessarily true and is often a precursor to being railroaded, as in the cases of the Central Park 5 and Ashley Overbey.
If there is no evidence of wrong-doing, police encounters should never result in a 50-50 chance of blood being spilled. Here are some categorical examples of uncontrolled police culture to further illustrate why we desperately need Three Strikes for Cops legislation:
- Examples of retaliatory arrest: The persons who videotaped the footage of Eric Garner (Ramsey Orta) and Freddie Gray (Kevin Moore) were both arrested. Orta went on a hunger strike while in jail because he claimed police were trying to kill him. Shortly thereafter, a report was released confirming rat poison was found in prison food. Also, Dorian Johnson, a key witness in the shooting of Mike Brown, was arrested one day after filing a lawsuit against the city of Ferguson, the former police chief and officer Darren Wilson.
- Examples of internal retaliation: Dt. Joseph Crystal of Baltimore and Sgt. Daniel O’Neil of Ferguson are just two examples of the backlash when police blow the whistle on misconduct of other cops. The Denver Sheriff Department even managed to have an internal affairs investigator fired for not destroying evidence.
- Examples of widespread racism: Correspondence between officers from San Francisco to Miami Beach; the closing of Darren Wilson’s first precinct which did not cut the cancer but presumably spread it.
Detractors get obnoxiously defensive and become conveniently naive when given surmounting evidence of malignant police culture. It’s always written off as “isolated incidents.” Be clear, the ensued hostility toward public defense attorneys Jami Tillotson and Paula Sen are examples of isolated incidents. The examples above a rampant pattern of hardcore intimidation that needs to end.
The Finest Rights
Many states have a “Law Enforcement Officer Bill of Rights” (LEOBR). It may seem innocuous, but some of the customizations raise serious questions. In Baltimore, police are given the right not to speak for 10 days after killing someone. Think about that! Think about having over a week to cover up a crime and then presenting whatever evidence is left to present to a secret Grand Jury. Now think about what would happen if you killed an officer in self-defense.
Police are using LEOBR to supplement whatever they can’t get passed into law. So what happens if police unions successfully expand their powers of civil forfeiture, no-warrant entry and citizen suppression that would make resisting arrest a felony and anti-police rhetoric a hate crime? What does it mean for citizens of a free country, in a free market, when the spoils and special interest of capitalism have fully penetrated our democracy (as admitted by the Chair of Federal Election Commission) coupled with the impunity of a militarized police force that will bully and turn their backs on officials in public office?
Dire Need for Federal Intervention
To piggyback on Patriot Act reform, it should be noted some police are exercising counter-terrorist laws against protestors. This is quite problematic. For example, there are several reports of officers posing as protestors to monitor threats in a crowd. But what about the allegations of instigating undercovers who incite a riot? Unfortunately, these actions and even more intricate ways of framing individuals will be easier to orchestrate if police are allowed access to encrypted phone data.
If state police want data, they should also have to provide theirs. By now, it should be common knowledge that the Department of Justice doesn’t have an accurate tally on how many people get killed by police simply because precincts choose not to submit reports. Reminder, America is still in a war. So if our police kill more citizens per year than our military kill enemy combatants, it’s safe to say, Washington, we have a problem.
I applaud President Obama’s federal legislation to demilitarize state police as well as the “Blue Alert” bill, but there is no citadel protecting the general public from the police. This includes police who want to be whistle-blowers on internal corruption. Why is media the main outlet for a glimmering chance of justice? Not everyone wants to be catapulted into a news circus.
Three Strikes for Cops is an ambitious, perhaps delusional suggestion. It is not a blue alert threat that should make police fear for their lives nor should politicians fear being in favor is committing suicide by cop. I don’t hate police; I hate injustice. I’m empathetic of the bedlam that threatens every shift, but most of these cases aren’t kill or be killed. Remove my snide and the evidence for additional regulation is overwhelming. Even as I write, I can’t keep up with the names of victims.
Whether for or against this proposed police penalty, the CCRB report, the DOJ reports, the two recent reports published by The Washington Post and The Guardian, and all the countless accounts of police misconduct, says a lot about how our civilized society views the humanity of its least privileged class.
[Illustration by Jim Cooke]