After another night of peaceful protests and riots, violence and looting, two narratives emerge. One for the protests. Another for the riots and looting. To anyone who has paid attention over the past generation, the frustration reflected in the protests are neither surprising nor hard to understand, even though matters of race have consistently improved and opportunities present themselves now that weren’t available a decade ago.

That said, we remain far from a society offering equal opportunity and, more particularly directed toward the conduct of police toward blacks and Hispanics, the improvement has been slow and come at the expense of too many lives along the way.

Why the killing of George Floyd in particular was the impetus for protests is unclear. Maybe because it came on the heels of the killings of Ahmaud Arbery and Breonna Taylor? Maybe because people have been cooped up during lockdown and needed to get out? Continue reading →

Ed. Note: Greg Prickett is former police officer and supervisor who went to law school, hung out a shingle, and now practices criminal defense and family law in Fort Worth, Texas. While he was a police officer, he was a police firearms instructor, and routinely taught armed tactics to other officers.

Colin Kaepernick started a trend back in 2016 of taking a knee during the playing of the National Anthem in protest of police treatment of blacks and the lack of accountability when there are incidents of police brutality or misconduct. Many people spoke out about Kaepernick’s protest, saying that it went to far, and he paid a price for taking a stand. Continue reading →

The events of yesterday, last night, ran the gamut of moving and peaceful to mindless and violent. There are arguments over who’s to blame, as people take credit for the good and point fingers for the bad. The police do as the police usually do, overbearing at best and outrageous when they get tired of being barely tolerant.

Then again, what’s a cop to do when his car is surrounded by protesters, unsure whether it’s about to be set ablaze?

The rationalizations have shifted over the past few days in ways they have in the past, and in ways that those of us who have followed and fought the twin problems of police violence and police racism for decades anticipated. Protests directed at concrete problems that give rise to consensus morphed into sophistry about historic grievances justifying violence and looting, because protests, they argued, haven’t “fixed” anything so it’s time to destroy (and snag a Louis Vuitton handbag in the process because why not?).

In Philadelphia, a Starbucks was burned. Continue reading →

Having spent years arguing about the wrongfulness of the judicially-invented activist defense to § 1983 and Bivens actions, the dreaded Qualified Immunity, it’s hard, awkward and, frankly, distasteful to write what I’m about to write: Eliminating Qualified Immunity is not the solution to police wrongfully, needlessly, killing people.

Qualified immunity precludes recovery in a civil action for damages against the police for the violation of someone’s civil rights. It has nothing to do, per se, with whether they will be fired from the job (and subsequently reinstated with back pay after union arbitration) for their conduct or criminal prosecution for the commission of a crime.

But, but, but the New York Times says so?

Police officers don’t face justice more often for a variety of reasons — from powerful police unions to the blue wall of silence to cowardly prosecutors to reluctant juries. But it is the Supreme Court that has enabled a culture of violence and abuse by eviscerating a vital civil rights law to provide police officers what, in practice, is nearly limitless immunity from prosecution for actions taken while on the job. The badge has become a get-out-of-jail-free card in far too many instances.

And the Supreme Court has most assuredly failed miserably to help eradicate the problem by its creation of Qualified Immunity, its elimination of the sequence of ruling on whether conduct violates the Constitution, thereby making it “clearly established” before tossing the case so that the next time it happens, the case won’t be tossed, and generally approving of any distinction, no matter how tangential or irrelevant, to distinguish clearly established violations from the case at hand.

But all this relates not to punishing the cop who did the crime, but denying compensation to the victim of a crime. In other words, this comes well after the fact. It doesn’t prevent the commission of the unlawful conduct, but compensation for it.

But doesn’t that provide an incentive to the cop not to engage in unlawful conduct?

To some extent, sure, but the cop doesn’t usually pay for his own defense, as it’s covered by the municipality that employs him. The cop doesn’t pay the judgment either, as the municipality indemnifies him. There are a list of reason why this can’t, won’t, shouldn’t be changed to make the cop personally liable for his unlawful conduct, even though there is a similar list of reasons why he should, but this is all unicorn wishfulness and unworthy of serious discussions. Academics can be so self-indulgent, but it’s unserious.

The more serious approach is to contend that if a cop costs the municipality serious money, then it behooves the municipality to either oversee its cops better and/or rid itself of bad cops who engage in unlawful conduct and cost more than their worth. And this should, in a better world, incentivize municipalities to do a better job of eliminating bad cops from their police departments and making sure, whether by training or otherwise, that cops don’t violate the constitutional rights of its citizens. Of course, one might hope that municipalities didn’t need special incentives to do this, but reality bites.

The disconnect here is the perspectives of cops and cop unions, which are forcefully directed toward protecting jobs and pensions. As much as many cops take issue with the bad ones, and the bad ones are always some other cop but not them, every cop fears that he will make a life-altering mistake in the heat of the moment. If the municipality doesn’t protect them, cover them, they will use one of the many tools at hand to make everyone miserable. Cops, and particularly cop unions, can be very persuasive.

Plus, it bears noting that the cost of these suits, both legal and damages, doesn’t come out of the pockets of the municipalities officials any more than it comes from the cops. The cost is paid by the taxpayers, and for reasons that have always eluded me, they may not be thrilled at the wasted expense, but they rarely seem to be angry enough to do anything about it.

So what else might be done to compel police not to kill?

Direct consequences, whether firing and/or prosecution, which directly impacted the cop who committed the unlawful or illegal conduct. There are mechanisms that can be employed swiftly to a cop who does wrong, as opposed to a civil action years later that will only hurt to the extent the cop’s name is in the caption.

But then, termination is subject to the union contract, the statutory Law Enforcement Officers Bill of Rights in those states that have enacted LEOBR and general union, and hence rank and file, condemnation. And even in the worst case scenario, it’s hardly unusual for a cop to find employment in another department not too far from home.

As for criminal prosecution, not to mention obtaining a conviction, the results can be seen in the many high-profile cases where it failed to happen, each casing being parsed within an inch of its life and yet, as seen in the failed Eric Garner indictment or Tamir Rice, Philando Castillo, Walter Scott and, well, it’s a long list, neither prosecutors nor jurors have demonstrated much will to convict a cop.

Does that mean Qualified Immunity isn’t as bad as they say?

Hardly. It’s terrible law, even though there are some meritorious arguments in favor of it. But too many people confuse the relationship between Qualified Immunity and other means of addressing police misconduct, blending them all together as if QI precludes prosecution or discharge, and failing to appreciate the limitations that the elimination of QI would have on any individual cop’s “split second” decision to kill.

With or without Qualified Immunity, the First Rule of Policing would remain intact. With Qualified Immunity, the Reasonably Scared Cop Rule protects them from the consequences of their decision. There is no question that QI should be eliminated, but that doesn’t mean cops won’t kill any more than they do now.

George Floyd’s family retained Ben Crump as their lawyer, who issued the sort of statement one would expect.

The arrest of former Minneapolis police officer Derek Chauvin for the brutal killing of George Floyd is a welcome but overdue step on the road to justice,” the statement reads. “We expected a first-degree murder charge. We want a first-degree murder charge. And we want to see the other officers arrested. We call on authorities to revise the charges to reflect the true culpability of this officer.

For obvious reasons, murder in the first degree sounds so much more serious, so much more like real murder, that it’s the go-to cry to inflame passions. Crump’s been around the block a few times and knows how to play the crowd. To be fair, that’s his job, to represent the family of George Floyd, and even though he almost certainly knows there’s no basis for an intentional murder charge, he’s doing what best serves his clients’ interest. Continue reading →

Had @RealDonaldTrump not been president, would his Twitter account have been suspended? Possibly? Probably? But would it have been for his “conservative” message or the batshit crazy and often bizarrely false content? No matter. He is president, and as president, got a special pass because the things he twits matter in a different way.

This is a view into what the President of the United States publicly says, which has public value even when it’s false, dangerous or nuts. Indeed, it may be more valuable to see the crazy stuff so that we know what Trump is spewing. Whether it’s because he means it or he’s gaming the heads of the faithful or the outraged is a separate question. Whether he’s spewing something outrageous to divert attention from his failings is a separate question. That he’s the president, and this is what he’s twitting, is the point, and so who is Twitter to deny the American public from seeing what he’s twitting? Continue reading →

It used to be drug dealers, mostly black and Hispanic drug dealers because, well, Tony Montana. They were hated, dreaded and any act that was linked to them had to be quashed with the harshest of measures. And people were fine with that, because they were the devils of the day. But today is a new day, and we now have progressive prosecutors who are filled with empathy and want to end mass incarceration. Almost. Meet Natasha Irving, feminist prosecutor.

What Does It Mean to Be a Feminist Prosecutor?

Reformers want to keep more people out of prison and punish more people for sexual violence.

This description isn’t merely internally contradictory, but less than accurate. They want to keep more people of a certain identity out of prison. They want to punish more people of another identity more. Continue reading →

For a brief and shining moment after the spate of high profile needless deaths of black men, although Tamir Rice could hardly be called a “man” yet, it appeared as if we were finally ready to address the “black men are more violent” belief that has animated policing. People of all races and political stripes were seeing cops being too forceful, too violent, too pre-emptively deadly that there was an organic groundswell for “enough.”

Then focus was lost. This is where my old pal, Elie Mystal, would tell me that white people don’t get to tell black people what they are allowed to care about, and he’s right. But it misses the point, that real change grows from a consensus that a racist problem is so bad, so unacceptable, that people are prepared to put aside their interests for the sake of someone else’s. Shouting “racist” at people doesn’t do the trick, no matter how hard you want to believe it should. Continue reading →

Andrew Fleischman sent me some screen caps of the Department of Education’s commentary addressing the comments to the proposed Title IX regs. This was the stuff buried in the 2033 pages of squiggly lines where the DoE tried to address the great many issues and objections, or perhaps to create the appearance of having taken them into account knowing that most were submitted to stymie change.

The questions Andrew raised about the regs weren’t hard to answer, per se, as they related to rather common evidentiary practices in law, regularly raised and addressed. But it was the content of the discussion of the comments, the explanatory notes if you will, that presented an issue. It’s unclear how many fingers were involved in the creation of this prolix document, or who reviewed it for substance and what they knew. Continue reading →

When most of the blawgosphere was sued by Joseph Rakofsky, one prong of his reply was an accusation of “internet mobbing.” There is, of course, no such cause of action or defense, but Norm Pattis invented it for Rakofsky. The idea was that each of the blawgers who wrote about Rakofsky, who shredded him for what he did, did not do so as a dozen independent free agents who saw the same conduct and were individually outraged by it, but as a mob, piling on to be part of the mob. It may have been true for some, but crafting a name didn’t make it a wrong.

In a magnificent post (which is my way of telling everyone that you really need to read the entire post because it’s that good) at Arc Digital, Kat Rosenfield faces the flash mob of the moment. Continue reading →