Answering Jeffrey Toobin: Who should investigate Police? | #BlackLivesMatter

In his December 30, 2014 piece in The New Yorker, legal analyst Jeffrey Toobin concludes:

“Schneiderman’s idea has considerable appeal; his judgment in the Eric Garner case would surely have had more credibility than the one rendered by Donovan.  Still, special prosecutors are not necessarily good or bad. Like the locals they replace, they are only as good as the cases they bring, or refrain from bringing. That, ultimately, will rest on the good judgment of the individuals involved, and no one has yet figured out a way of putting the right person in place all the time.”

As much as I admire District Attorney Schneiderman, I cannot agree with this conclusion. Any time a society willingly relies on one person’s goodness to render its justice fairly, it abrogates justice. Besides, as Toobin points out elsewhere in his piece, it doesn’t solve the overall problem around the state, never mind around the country! We are a nation in deep turmoil. Any serious examination of police abuses reveals problems whose depth, breadth and long history beg a sober discussion of the nature of civil liberties, America’s status as a democracy, and how we go about reforming the system.

I think it is appropriate, in starting this discussion, to make these assumptions:

1. With few exceptions, police abuses are rampant nationwide.
2. The militarization of police forces is generalized.
3. The judicial system cannot be uniformly be counted on to act as a safeguard for justice.

So, how should abuses get investigated, prosecuted, and adjudicated fairly? For as long as one additional assumption isn’t widely accepted, we will remain in our current impasse. In her piece for The Atlantic, Rachel Levinson Waldman writes:

“In Fraenkel’s theory, called the Dual State, a totalitarian society is propped up by two interlocking halves: One half enshrines and enforces legal order, while the other arbitrarily exercises power free of legal constraint. The first half provides the veneer of legality necessary for the second to operate without producing overt rebellion, while the second allows the government to achieve its goals, notwithstanding a superficial commitment to legality.

The United States is not a totalitarian society, but Fraenkel’s theory nonetheless sheds light on recent tensions between the rule of law—the oft-quoted notion that the U.S. has a “government of laws, not of man”—and the rule of “technically legal.””

We must acknowledge that we are either on the precipice of Frankel’s Theory or past it. Whichever it is, we are facing it in some fashion.

When a nation gets to the point where even contemporaneous events – not only historical facts – and the long-standing understanding of what constitutes the most basic civil rights are subjects of contention, we are a nation in trouble. When a nation’s voting public is mostly agreed that allowing more guns than there are people is sheer lunacy and a threat to society but cannot translate that general agreement into the election of leaders who will carry out its will, we are a nation in trouble. When faced with almost daily occurrences of accidental shootings interspersed with daily occurrences of murderous police behavior and civil liberties violations, our collective response should be an expression of the desire to revert to a more civil status quo ante.

While it is apparent that Black Lives Matter is a growing civil rights movement that bears the hopeful signs of persistence and cross-racial participation, it isn’t yet the full-throated expression of a nation’s burning desire for change. It doesn’t help that, even today, we don’t have accurate national and regional statistical accounting when it comes to police shootings.

Returning to Toobin’s point, who, in the messy state of affairs we find ourselves in, should investigate police? Given that in so many places police investigate themselves and attorneys general usually skew cases in favor of local police, we should perhaps begin with who should not be tasked: police, attorneys general, grand juries, and commissions of “impartial” professional appointees. We should also set some universal rules. A Federal mandate should forbid the practice of police self-investigations everywhere. Congress should end the practice of impaneling grand juries as many other nations have. We cannot rely on groups of people who meet in secret and are instructed in secret to render justice. As The Economist Explains:

“America is one of the few countries to use grand juries. The Fifth Amendment requires that the federal legal system uses grand juries for all capital and “infamous” crimes. Grand juries are meant to weed out ill-conceived prosecutions and are particularly useful in cases of terrorism, public corruption and organised crime. Most Americans know little about the process, as the proceedings are not open to the public or to the media. Such secrecy is meant to ensure that investigations are free from outside influences and that witnesses are more forthcoming. State rules are different: only around half of the states use grand juries. And practices can vary widely. The size of a grand jury, for example, differs from place to place: in Missouri, it was made up of 12 people. In New York some 23 people sat on the jury.”

New York is hardly the only state in which prosecutors are elected. Even if, by and large, most elected prosecutors were well-meaning and highly professional, their good intentions are not what the nation should rely on for justice. In a nation with as deep a set of divisions as we have, exacerbated by gerrymandering in the very places where police militarization and brutality are felt the most, suggesting a mix of arbitrators and citizen oversight might be seen as a just solution.  But, again, the question of our dependence on the good will of a few rears its ugly head. We need to  have a high degree of assurance that justice can be meted out impartially. Were our predicament confined to one or just a few geographical locales, it might have made sense to temporarily turn over the task to arbitrators from a different jurisdiction.  So, why not? Well, a recent example in the news is this one:

Cop Fired For Cutting Off Detained Woman’s Weave Gets Job Back

A Michigan police officer who was fired after cutting the artificial hair off a detained woman’s head will be getting her job back, against the wishes of her department.

This simple case about a woman whose hair extensions were cut off while in the custody of police exemplifies civil liberties abuses of varying degrees of severity that happen daily in every state. We read about them and move on to the next new outrageous instance. Here, however, the one safeguard that was supposed to uphold a rare example of appropriate action by a police department was arbitrarily undone by the very people put in place to provide neutral adjudication.  Is it far fetched to expect one’s hair not to be cut while being remanded into custody? Is it far fetched to expect from a judge to recognize the wrong perpetrated by the police officer who did the cutting, account for the officer’s court admission under oath, and rule in favor of civil liberties?  How many other cases like this one take place daily in our judicial system? How many other states have laws that leave the door wide open for judges to rule the way this one did?  Should such rulings even be possible under the law?

In California, certain types of cases are adjudicated by administrative law judges from what, essentially, is a law firm, OAH, that was established to fulfill a state function that was contracted out. OAH rulings are binding and can be appealed to higher courts, if complainants wish to pursue them. Few cases are appealed due to the high cost of suing in Superior Court. Also of note is the fact that OAH rulings cannot be used as precedent in other cases, making this kind of justice uneven and exceedingly difficult for plaintiffs to obtain, throughout a system that rather heavily relies on it. The cases they handle consist of disability, patients’ and students’ rights cases. While they aren’t life and death cases,  they nevertheless are important. If one OAH judge finds for a plaintiff in a case where a child was denied a service by a school district, then families who come after that plaintiff with a similar case ought to be able to use the precedent case law or, at the very least, use the precedent to ensure rulings are consistently applied. As things stand, each new family, in each new case, fights the same battle anew and the erosion of rights resulting from the misapplication of laws is perpetuated.

Injustice, big or small, life or death, or even a mere matter of convenience, opens the door to bigger and more fundamental injustices. This is as true in how we apply the law in court as it is in the notions each of us accepts as “reasonable.” When we justify the actions of police officers involved in beatings or lethal shootings because those killed or beaten might have led less than exemplary lives, we concede to police rights and responsibilities that were never a part of their mission. Could it be that we are seeing so many more police shootings because our view of the expectations of police officers has shifted? Could it be that we’ve moved from what was generally viewed as a vocation with risks attached to a situation where our police forces can now hold their lives above those of the communities they serve?

Could it be that centuries-long white silence on the treatment of Blacks has changed the way at least half of our nation regards justice and how it applies to everyone? Upon examination of just the last few years’ worth of police incidents, a pattern emerges whereby specific vulnerable populations don’t survive the types of police encounters that other groups do. Here are some polar opposite outcomes:

These two recent cases stand in stark contrast:

These two cases remind us of something we should never have forgotten: it is entirely possible to apprehend a suspect who poses a great risk without killing them. In fact, police were always trained with the expectation of doing their utmost to spare lives. So, should police officers who claim to have fatally wounded a suspect because they feared for their lives be given a pass? Shouldn’t there be some uniform standard in all jurisdictions that mandates a specific course of action in all fatal police shootings? Should a civilian who comes into contact with police reasonably expect to survive their encounter? Other than terrorists and hostage-takers, are there populations whose shootings by police should never be examined? These questions lie at the heart of what we should all expect of our police forces. Shootings should be rare across police departments and, when they do take place, focused on disabling suspects and preserving lives, rather than extinguishing them. By uniformly, I mean statistics should be relatively and similarly low, going from state to state.

Police claims of fearing for their lives, as we’ve repeatedly heard in virtually all the nationally-known recent cases of brutality, are not sufficient to justify firing a weapon and killing a suspect. It must be made clear to veteran and novice police officers alike, that they will be held responsible for their actions. Policing has always carried with it an inherent occupational hazard, and fear is an inherent part of policing. Shooting to kill cannot be allowed as a substitute for either or both. Police-involved shootings not only need special investigation, but should always be taken to trial and a jury. Maybe then, knowing that the consequence of extinguishing a life may result in losing one’s freedom will be deterrent enough to stem the tide of shootings.

There must be better ways to screen police academy applicants who fit the bully profile. These recent cases are of cops using different approaches to bully different kinds of vulnerable citizens:

The first two examples are straightforward. The first is out and out violence on a child. The second, also captured on video, happens to be passive-aggressive bullying by a Black police officer on a Black man for something that no white person would ever be given a second look, much less arrested for. One wonders what went through the mind of the police officer’s white partner as this arrest was taking place.

The third item is emblematic of policing in Los Angeles, which has been resistant to reform. Removing antennas in order to prevent the recording of police interactions is bad enough. The finding by the LAPD leadership that it would be pointless to investigate who, among all those officers, instigated the sabotage of LAPD equipment, is criminal and nothing short of giving known racists a wink and a nod to continue thwarting attempts at reform of a police department with a long history of racism and racist abuse. Reports like this one should make us all re-examine the so-called achievements of former LAPD Chief Bratton. It should also make us question whether the LAPD shouldn’t be placed under Federal oversight.

Then, there are brutality cases like this one from Missouri. Clearly, there is a discrepancy between what the officers’ narrative in the report they submitted and what we can actually see for ourselves on the video shot by the police helicopter:

Man holds up hands and lies down — and cops still kick him in the face and Taser him

A drug task force video of an arrest differs markedly from the police reports written by the plains clothes detectives involved in the incident, The Kansas City Star reports.

The video — available below — begins with the final moments of a car chase between Timothy Whittle and two plains clothes detectives, Michael Chinn and Kip Bartlett.


No matter how legitimate the reasons for the suspect’s arrest might have been, the treatment he received at the hands of these officers is not. It doesn’t matter how bad a criminal police have in front of them, beatings are never justified. The man had given himself up. Beating him served no purpose. The use of a taser was completely unjustified.
Credit: RawStory

So, when we see headlines announcing “Cleveland police to hand over Tamir Rice probe to county sheriff’s office,” it is exceedingly difficult to trust that the change of agency signifies a change in attitude.

The Cuyahoga Sheriff will now be in charge of investigating this case because, as Cleveland Mayor Frank Jackson put it, “the decision was made to “ensure transparency” and establish “an extra layer of separation and impartiality.”” Mayor Jackson unwittingly telegraphs the widespread problem with this statement. Many elected leaders and law enforcement officials have established the myth of transparency in their public statements. There is no such thing. Going from city to city, county and state and looking at investigations of police-involved shootings, a preponderance of outcomes end with the exoneration of the officers involved, even in the most obviously egregious cases. These public statements are routinely reported on by the press, verbatim, with few even questioning their accuracy. More alarming is that a sizable portion of the public seems to accept such highly prejudicial reports as fact and further promotes public acceptance of the idea that is is proper for police departments to investigate their own shooting cases.

In his incredibly thorough review of the history of violence by and against police, Look Back to Move Forward, Charles M. Blow writes of the political backlash following the actions of Ismaaiyl Brinsley, the man who killed two Brooklyn policemen on December 21, 2014:

“The mind that cannot separate Brinsley from other black folks, that simply sees dark skin and sees darkness, is diseased: It was never serious and isn’t salvageable. But, just as important, operatives who would use tragedy as political leverage are morally subordinated to those who use tragedy as an impetus to seek social justice.”

Mr. Blow is right about the existence of such a mindset and it is what we must keep uppermost in our minds as we resume the debates that were interrupted by tragedy on December 21st.  We must maintain our resolve to stay focused on understanding what is going on in policing and maintaining that focus, no matter what might conspire to interrupt it. The very nature and purpose of policing must be reevaluated and defined anew. Explicit bias must be rooted out and awareness of everyone’s implicit bias must be effectively conveyed. New rules of engagement need to be laid down and enforced faithfully.  Compassion and humanity must taught and continuously reinforced.

Hiring practices need to be examined in police departments big and small, all around the nation. Policies that are in place to disqualify potential recruits with an IQ higher than 125 should be made illegal by an act of Congress. Incredibly, such a policy was deemed legal by the judges of Connecticut’s Second Circuit Court of Appeals in the year 2000.

Rigorous testing of potential recruits’ propensity for racial bias, explicit and implicit, should be done across the board, in all states and at the Federal level, on an ongoing basis. A partnership should be established between Harvard University’s Implicit Bias program and others like it with all the states, to devise testing to be used routinely on law enforcement and other public-facing personnel. Training of police should place the emphasis on learning intellectual and physical skills  that not only preserve life, but teach officers how to respect it.

By teaching respect, I mean requiring of all police officers to take at least 9 semester credits’ worth of social ethics curriculum prior to graduating from Police Academy and taking the equivalent of 1.5 continuing education units (CEUs) each year, as maintenance. Measures to counteract desensitization on the job need to be implemented, and should include requiring officers to live in the communities they police.

Officers should also be required to spend at least half of their shifts communing with the children and adults on their beats. It seems to me that if police departments practiced true community policing, the desensitization of officers who work in certain communities would not be such a concern. How likely is an officer to be desensitized to a teen he used to read books to at school just three or four years before?  As we learn from this Al-Jazeera America report on the experience of the city of Cincinnati, relative harmony can be achieved in places where strife existed between police and the community:

“In 2001, when three nights of riots broke out after a police officer shot unarmed black teenager Timothy Thomas in Over-the-Rhine, Tucker, 57, who is white, says there was a feeling that the fierce flash of outrage was a long time coming. Thomas was the 15th black man to be killed by the Cincinnati police in six years.

“You felt the tension leading up to that, you know. The police, they kind of made their own rules,” he says as he fries eggs and goetta sausage. “Enough was enough.”

But in the intervening 13 years, Tucker and some of his regulars say they have seen not only seen the rebirth of Over-the-Rhine but also dramatic changes in how the Cincinnati police conducts its business. “I don’t see them as being too aggressive, not like the old days,” he says. “

It is going to take the vigilance and very long-term commitment of millions of people of all races to see to it that police forces across the country are reformed just like Cincinnati’s was, and to defeat those who are working hard to keep racial divisions as they are, painting some Americans as “other” to retain the status quo.

Black Lives Matter needs to mature from a loose organization that coordinates protests to one that effects change. Grassroots organizations like the ACLU, NAACP and others should join forces with the younger generation and offer their auspices to promote the growth of Black Lives Matter and North Carolina’s Moral Monday, in the same way as some denominations plant churches. With the appeal they have, both of these groups, together, could be our nation’s next civil rights movement.

This time, even more so than last, cross-racial participation is key. While the forces at play may seem unbeatable, we cannot give up. There is a confluence of social issues that are coming to a head.  While police brutality is America’s most urgent issue, the others aren’t far behind and they affect us all.

Whatever it takes, however long it takes, we’re in this together!


3 thoughts on “Answering Jeffrey Toobin: Who should investigate Police? | #BlackLivesMatter”

  1. This was a thoughtful, well-researched and well-argued discussion of police overextending the powers that are granted to them as our civilian law enforcement.

    Came across your blog from your link in the comments thread at the NY Times Charles Blow column you reference above, and although I usually don’t click on self-posted links, your comment there was thoughtful enough to make me curious. I’m glad I did. I learned a lot from this post, and it’s rare in this clickbait era for me to say that.

    Thanks for adding to this discussion with this fine piece. It’s distressing that the national discussion is being framed in the polarized framework of standing up for the police vs standing up for the rights of those abused by the police. Respecting the dangerous jobs of police officers and recognizing the real abuse that often occurs at their hands (especially for black people and other minorities) are not mutually exclusive positions. Police officers are granted a great deal of power — including the power to commit violence and even kill — and consequently they must be held to a high standard of responsible conduct. If we, as a society, do not hold them to that standard, we cannot expect anyone to have faith in our law enforcement, or, indeed, our justice system.

    The police want to be respected as professionals serving a dangerous mission in protecting the public. But they cannot be respected if they are not going to be held responsible for grievous violations of professional conduct, for systematic obfuscations of bad conduct, or for informal policies that target minorities and minority neighborhoods. It is actually in their best interest to be held responsible for their actions — the public could then truly separate out the “bad apples” from the “good cops”, and have faith in, and respect for, the institutions of law enforcement. It is in their best interest to want to hear the grievances of the public they are sworn to serving.

    We are very far from that today.

    1. Thank you so much for clicking through and reading, but especially for taking the time to write such a thoughtful comment!

      We have a very long way to go and it begins with awareness. Unfortunately, this isn’t only an age of click-bait, but for all of the information that’s floating out there in the ether, we less well-informed than we used to be. We are also less well-educated. It doesn’t bode well for our collective future.

      Thanks again! I really appreciate hearing back from fellow Times readers.


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