The New Monell: Chris Rock

Whether cops would react differently if they thought about the Good Guy Curve is unlikely. It’s not that they’re necessarily that dumb or narcissistic, but that they care far more about themselves, their own position on the First Rule of Policing, than they do about the other guy making it home for dinner.

The problem is that when they approach a person, even if there’s nothing beyond rank speculation that the guy might be up to something wrong, they may know they’re cops in plain clothes, but the other person doesn’t unless they display shields or say something. Too often, they don’t. They may lie about it afterward and claim they did, but they didn’t. It just wasn’t on their mind at the moment. That was the case when they stopped Lamar Wright in Euclid, Ohio.

Unbeknownst to Wright and his friend, plain-clothed Officers Kyle Flagg and Vashon Williams, in an unmarked vehicle, were surveilling the friend’s home based on reports of illegal drug activity in the area and at that residence in particular. The officers identified Wright’s vehicle as a rented Ford Edge SUV. Based on the short amount of time Wright spent at the house, the officers suspected that he may have been involved in a drug transaction.

One of the most common arrest scenarios is called an “observation sale,” where the cops claim to see an object passed from hand to hand between a suspected drug seller and buyer. They gussy up the allegations to claim it was packaged in a fashion that was common for drugs, based on their training and experience, even though they couldn’t possibly see how it was packaged. But here? No hand to hand was seen.

Wright’s “crime” was stopping at a location under surveillance for a brief period. There are a million perfectly lawful reasons that might happen. There was a criminal reason too, except they didn’t see anything, any transaction, any hand to hand, to take the leap.

After Wright pulled out of the driveway, Flagg and Williams followed him. He turned right onto Recher Avenue and then left onto East 212th Street. The officers maintain that at both turns, Wright failed to use his turn signal, but there is no dash-cam footage or other evidence to confirm the officers’ word. Wright insists that he did use his turn signal in both instances.

Whether this was just your basic pretext stop, a banal lie about something any cop could claim like failure to use a turn signal, is unclear. Cops no longer have to pretend it was a legit reason, as the Supreme Court in Whren told them “any excuse will do,” and excuses are available free of charge.

The police officers, in plain clothes, approached Wright’s parked SUV with weapons drawn. Thinking he was about to be robbed, Wright tried to back up the vehicle to get away. A flash of a badge made him realize that the men he thought were about to rob him were the police. Wright stopped the SUV, and the officers pulled open the driver’s side door. Wright had no weapon, and the officers holstered theirs. Nonetheless, they simultaneously deployed a taser against him and pepper-sprayed him at point-blank range, all while he remained seated in the vehicle. Wright had trouble getting out of the SUV because of a colostomy bag stapled to the right side of his abdomen. He was recovering from a medical operation for diverticulitis. The police aggravated the staples from his surgery, causing bleeding from around the bag.

Why Taser? Why OC? It’s a lesson, that you do not do anything to present any potential harm to a cop. But Wright didn’t know they were cops and, reasonably, assumed he was being robbed by two guys in plain clothes pointing guns at him. To the cops, however, Wright’s entirely normal reaction on the Good Guy Curve threatened their adherence to the First Rule of Policing. So Wright sued, both the officers and the city of Euclid. The former was the usual § 1983 action, and the latter was under Monell.

While qualified immunity under 1983 presents its own host of issues, Monell claims have proven particularly elusive.

[A] plaintiff must show that “through its deliberate conduct, the municipality was the ‘moving force’ behind the injury alleged.” A plaintiff does this by showing that the municipality had a “policy or custom” that caused the violation of his rights.

Monell claims almost invariably fail for lack of proof. Rarely do municipalities admit to training their cops to go out and beat black people for no good reason. But Euclid? Well, it started with this handout during training (suitable for framing).

“Protecting and serving the poop out of you.”

It sure looks defensive, with the guy on the ground’s elbow attacking the cop’s club. But the key piece of evidence wasn’t this delightful image. It was cool, edgy and funny.

Euclid police watched the Chris Rock video during training, and that did the trick. It was enough to get the case past dismissal and to a jury.*

Wright has produced enough evidence such that a reasonable jury could find that the
City’s custom surrounding use of force is so settled so as to have the force of law and that it was the moving force behind violations of Wright’s constitutional rights.

This gives rise to two possibilities, that either every police department show the Chris Rock video to their officers during training, which will both inform them as to the way in which black people respond to them and give rise to potential Monell liability should they decide to ignore it. Or, if the city fails to use the video during training, that it made a deliberate choice not to properly and adequately train and supervise its police to prevent their unconstitutional, and perhaps criminal, use of force.

And since everybody loves watching this Chris Rock video, cops included, it’s a win-win.

*Lest anyone fail to appreciate irony, the core problem here was that while the Chris Rock video is funny and wonderful, failure to train cops not to violently harm people is not, and Euclid’s training was a farce. That said, humor is one of the most effective tools in training, as people actually pay attention.

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