As Christmas 2014 approaches, it’s difficult as a legal commentator not to reflect on the turmoil and angst permeating the country over the legal system as a result of grand jury decisions in New York and Missouri. However, those decisions are merely the flash points for the complicated issues of growing up black in America and the policing of our communities. Each of us brings our perspectives and biases to the judging table concerning the events surrounding the deaths of Eric Garner and Michael Brown. Here are my biases.
My seasoning came in the ‘60s and ‘70s during college in Washington, D.C., and as a participant in all of the major protest gatherings and marches of that period. (I was headed to Woodstock but got diverted by a pretty girl.) I stood on the top steps of the Lincoln Memorial arm and arm with Ralph Abernathy, Dr. King’s successor as leader of the Southern Christian Leadership Conference. I was the general counsel, and am currently the vice Chairman of the Board of Directors of the dominant civil rights organization in the city where I live. I’ve had a gun menacingly pointed a foot in front of my face by a policeman. Therefore, you would guess my experiences make me unsympathetic to the grand jury decisions returning no true bills against the policemen involved in the deaths of Garner and Brown. However, like the issues confronting our country, most of our personal pasts are complicated as well.
I was a policeman in Washington, D.C. I remember being called “pig.” As a lawyer, I’ve tried a number of cases in which I represented the State and prison personnel accused of mistreating prisoners. I’ve taken night time drives with my city’s policemen. It’s hard to criticize the police if you haven’t taken one of those rides. My wife was the president of a company that produced training tapes for police departments used across the country. Tallying all of these life experiences and biases results in me finding myself in a position similar to that Missouri city located smack dab in the middle of the mean population center of our country.
The current dialog going on concerning police accountability and being black in America is not necessarily seen the same by whites as blacks. Truly, all of our experiences and biases are different. There is a strong feeling in the black community that a great injustice has been done as a result of the grand jury decisions, whereas the white community, particularly in respect to the Michael Brown case, seems less convinced.
These two cases teach us that when it comes to controlling would-be offenders, even for things like stealing cigarillos or selling black market cigarettes, there will be a lot of deference shown to the police. The grand juries seem to have said that when it comes to police, they get the benefit of the doubt. There are some good arguments why that should be true.
The arguments go something like this: The police stand as our defenders, keeping us safe from the criminal element, which absent their presence would be free to take advantage of the weak, the meek, and the undefended. We should be very reluctant to second guess a policeman who uses his gun, as it’s easy to Monday morning quarterback and calmly reflect from a distance. A police officer’s decisions and acts are immediate, and without the benefit of some of the facts that might later come to light. They have been trained, and in general, are making the best decisions they can in the type of circumstances that few of us will ever face. Since they have the jobs of keeping the peace, don’t get paid a whole lot, and risk their lives every day, they deserve the benefit of the doubt.
There are also good reasons why the police do not deserve the benefit of the doubt. The arguments go something like this: The police are our protectors and our symbols of law and order and the proper way to act. More than any other profession, they are the American symbol of doing the right thing, and law and order. They are trained to act calmly and appropriately in times of crisis. They are used to it. Therefore, as a result, there’s nothing worse than a trigger-happy or violence-prone policeman. There’s nothing worse than an individual, who having taken on the responsibility of a gun and a badge, acts in an irresponsible fashion, and taking advantage of the position of power he or she finds themselves in, harms our citizens. If we cannot count on the police to follow the law, our society is in grave danger. The standard needs to be higher in respect to the police, not lower.
The events of Staten Island and Ferguson can never be undone. These young men will never be brought back to their families. Their legacy can be rioting, or it can be something else. What can we learn from this terrible situation where young blacks live in fear of the police and white policemen feel targeted as racists?
I ran into a friend, Judge David Mason, at a store last weekend. We got to talking, and he suggested that part of the current dynamic may be implicit bias in the police force as a result of the accumulation of decades of negative social programming. I feel certain that’s at least part of the problem. Judge Mason suggests that implicit bias can be addressed by explicit training.
When I was a policeman, I was taught to never draw my gun unless I intended to shoot somebody in the chest. I was taught that shooting a gun was a decision of last resort. I was even taught how to take away an attacker’s knife, through hand-to-hand combat, rather than draw my gun.
I don’t know if police officers are still taught that, and I don’t know to what extent issues of race currently come into play in such confrontations, but I am sure at times they are there. Judge Mason suggests that continual training and retraining of officers to avoid the use of deadly force will result in better results for both the community and the police. Of course, enhanced training to dispel long-fostered bias may be beneficial for all. It would be good if there were a way to educate black youth to the concepts that policemen can be their friends. That’s what I was taught growing up. The teaching though, has to be correct.
Despite recent conflicts, there are things upon which we agree. Virtually all of us agree everybody ought to be treated the same way. We virtually all agree that Americans have the right to protest and take to the streets in regard to any governmental action, and certainly in respect to police actions. Virtually all of us agree that violent actions, like we have seen in a few isolated incidents throughout the country, are not productive for either side, and certainly not for those living in those communities.
It’s not a pleasant thing to be approaching Christmas, a time of supposed peace on Earth and good will toward men, thinking about problems in our communities with our policing. On the other hand, it is a pretty good time to think about learning lessons.
© 2014 Under Analysis, LLC. Under Analysis is a nationally syndicated column of the Levison Group. Mark Levison is a member of the law firm of Lashly & Baer. Contact Under Analysis by e-mail at comments@levisongroup.com.