Facts are stubborn things

"Facts are stubborn things," attorney John Adams, also patriot, Founding Father, and second president, uttered in fraught circumstances. He was addressing a pre-revolutionary Boston jury in defense of a British captain accused of ordering redcoats under his command to fire on protesting colonists resulting in the Boston Massacre. Adams' emphasis on elevating facts lays one cornerstone.

Recently, a veto-proof plurality of the Minneapolis City Council pledged to essentially disband the city's police department and reform it from the ground up. The frustration and pressure to rethink and start over is understandable. It's not just that persuasive video evidence saturating media of four of its officers' involvement in the depraved murder of George Floyd has destroyed public confidence. Video evidence emerged of police officers puncturing the tires of a parked car belonging to a reporter covering the resulting protests, one of many such tires reportedly sabotaged in an area at the time under complete control of the city's police. Such factual evidence commensurately punctures and deflates any notion that department supervisors maintain adequate command and control over that portion of its officers who harbor aberrant notions of what deference and gratitude they are owed by a public they are otherwise sworn to protect and serve. Such officers, so-called "bad apples," have confidently and impudently engaged in misconduct, cowardly cocooned both literally and metaphorically behind a blue wall.

Top-down demolition and bottom-up rebuilding of police departments is an idea fanned by legitimate protests. "Defund police" joins "Black Lives Matter," "Hands up, don't shoot" and "I can't breathe" as easily digested power points on protesters' agenda. No less than the Los Angeles mayor has, caught in the turbulent wake of Floyd's murder and the LAPD police chief's sincere apology for inaptly implicating looters in Floyd's death, pledged to slash $250 million from the city's police budget, a sharp U-turn from its heretofore inertial expansion.

This top-down approach to police reform will scare a portion of the public, provoking an inevitable counter-reaction because it is open-ended and appears a craven political bow to pressure. Most simply characterized, it suggests protesters want no police whatsoever. If, by contrast, a bottom-up, case-by-case approach to abuse seems inadequate to the task, at least one consideration must be whether such an approach even effectively exists, particularly in courts. In a free society, private disputes are resolved in courts, not alleys. It generally seems to work. Likewise, disputes between citizens and police officers should be resolved in courts, not streets. But courts do not seem entirely up to the task. Why?

Historically, federal courts have engaged in top-down imposition of constitutional and statutory doctrines, designed to limit cases brought by persons alleging police misconduct, cases that would otherwise proceed to trial before a jury. For example, the Fourth Amendment expressly prohibits unreasonable searches and seizures. But what constitutes an unreasonable search and seizure is unnecessarily delimited and clouded by courts, by subjective judicial fingerprints tilting what are supposed to be objective scales. For example, federal courts generally prohibit juries from second guessing an officer's use of deadly force if it was reasonable in the moment, regardless of whether the officer's actions in creating the circumstances whereby force became necessary were entirely unreasonable. Officers are generally not required to exhaust using lower levels of force or de-escalation tactics. A paradigmatic example is an officer arriving at a call reporting a disoriented, disturbed person brandishing a knife. Instead of setting up a perimeter to calm and resolve the episode, the officer immediately approaches. When the compromised person predictably endangers the officer by failing to follow orders, the officer shoots in self-defense. Often, such a case would not go to a jury. More than the particularly inflicted injustice, this presents a broader problem.

In the past few years, despite concentrated public attention, the number of police shootings nationwide has remained stubbornly high, although mitigated by a decrease in shootings of unarmed citizens. In Los Angeles, however, police shootings over the past three years have significantly trended downward, in fact, a 30-year low in 2019. One likely reason is that, under pressure to reform, the department has developed a policy that "the reasonableness of an officer's use of deadly force includes consideration of the officer's tactical conduct and decisions leading up to the use of deadly force." Likewise, in San Francisco, use of force incidents reportedly dropped 20% after its department adopted a rule that unnecessary force is unreasonable per se.

In reviewing uses of force, what these departments now consider as facts relevant to determining whether force is reasonable significantly diverge from Fourth Amendment doctrine, such as found in Graham v. Conner, 490 U.S. 386 (1989). Indeed, there is plain cognitive dissonance between federal doctrine and these departments' new policies.

Los Angeles and San Francisco are adopting law enforcement best practices and a better conception of what is objectively reasonable, not so much in response to litigation where fact-finding jurors found previous practices lacking, but reactively to restore lost public trust and legitimacy after public protests. Their departments now must not only gear internal investigation and oversight functions to comply with law, but do better. They are looking at facts and finding that uses of force are unreasonable in situations where federal courts, supposedly applying an "objective" test, would prevent some of these facts from being presented to the jury. By doing so, these California cities are doing better than the likes of Minneapolis. It is strong circumstantial evidence that imposing stricter standards and considering a broader scope of facts when applying those standards, is very important in curbing police misconduct.

It is not, though, just an isolated misinterpretation of the Fourth Amendment where federal courts are arriving late and falling short. Regarding police misconduct, federal courts have been getting it wrong for a century and a half. For 90 years after passage of the Civil Rights Act of 1871, legislation that was supposed to allow persons to vindicate deprivations of federally protected rights against those violators acting "under color of law," the law fell essentially silent. Federal courts interpreted "under color of law" to include only violations not otherwise prohibited by state law, even if there was no chance, as usually was the case, of enforcing those violations in state courts. After nine decades of having rendered the act a dead letter, the high court in Monroe v. Pape, 365 U.S. 167 (1961), finally corrected the error, reasoning, instead, that the act "should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions." But the court simultaneously misread that statute to prohibit holding municipal entities, the negligent employers of the miscreant police officers, liable. The high court did not correct this new misinterpretation until Monell v. Dept. of Social Services, 436 U.S. 658 (1978). One decade later, though, in City of Canton v. Harris, 489 U.S. 378 (1989), still another accretion of dubious statutory interpretation, the court created the legal fiction that, rather than mere negligence, such municipal entities, to be held liable, must act with "deliberate indifference" to the rights of similarly situated victims of police abuse. The court thereby set up an oxymoronic, if not moronic tension between courts or fact-finders who found actionable "deliberate indifference" with those who found merely "indifferent indifference."

Meanwhile, in Pierson v. Ray, 386 U.S. 547 (1967), the court protected officers accused of rousting protestors in Mississippi with good faith immunity. That doctrine, created 96 years after the 1871 act, morphed into "qualified immunity," rules whereby federal courts dismiss many lawsuits against police officers otherwise assumed to have violated a person's federally protected rights, rules that bear no resemblance to anything in the statute's language, congressional history, or the common law Congress intended the statutory system of constitutional torts and remedies to mirror. In the context of excessive force cases, moreover, qualified immunity analysis adds mind-bending paradoxes and embarrassing incoherency regarding whether an officer's unreasonable use of force could nonetheless be excused because the officer, caught in the moment, objectively might think a use of otherwise unreasonable force is nonetheless reasonable. All of these inventions, constructions and second-bite-at-the-apple glosses share one thing in common -- they all tend to cull evidentiary fact, and sometimes entire cases away from juries. Even evidence which survives this judicial hazing is, when presented to jurors, often presented with jury instructions to apply them in ways forgiving to what otherwise might be deemed misconduct.

If, though, it is assumed, first, that these standards imposed on police officers are, in aggregate, demonstratively important in deterring police misconduct and, second, that the cumulative, repeated instances of abuse caught on video have become beyond routinely disturbing, bewildering, then the checkered history of federal civil rights law since 1871 suggests why this country has settled into this invidious Groundhog Day pattern.

If it's also presupposed that it's better for police standards to progressively and incrementally evolve case-by-case based upon evidence presented before juries than by post hoc pressure following bricks breaching glass-paneled storefronts, then it is on federal courts to become part of the solution instead of a trailing institutional drag.

Fortunately, there is ripe, low-hanging reform well within this Supreme Court's salutary reach. Both the legitimacy and effectiveness of qualified immunity doctrine has come under sustained criticism by a wide variety of commentators. Not just liberals seeking to promote civil rights, but libertarians as represented by the Cato Institute, a prominent conservative thinker like George Will, and a prominent originalist no less than Justice Clarence Thomas.

Fortunately, there is ripe, low-hanging reform well within this Supreme Court's salutary reach. Both the legitimacy and effectiveness of qualified immunity doctrine has come under sustained criticism by a wide variety of commentators. Not just liberals seeking to promote civil rights, but libertarians as represented by the Cato Institute, a prominent conservative thinker like George Will, and a prominent originalist no less than Justice Clarence Thomas. Several law professors have developed the underlying scholarship elaborating the doctrine's anomalous history and deleterious effects. Concomitantly, there is a crescendo of cert petitions accumulating before the court with several to follow brought by alleged abuse victims otherwise denied their days in court.

Ironically, the LAPD has recently demonstrated considerable improvement in addressing its use of force issues, even as its budget is about to be slashed. Likewise, John Adams' fact-oriented arguments carried the day on behalf of his law enforcement client. Six years after the massacre, though, grievance still insufficiently addressed, colonists presented a factually detailed bill of particulars listing numerous instances of official misconduct, along with a declaration setting forth a more comprehensive, top-down reform agenda. That was on July 4, 1776. 