How far is California from Ferguson?

The struggle continues, and California leads the nation with a new law that addresses fundamental fairness

2016 November

It all began with a shot fired through the open window of Officer Darren Wilson’s patrol car on a summer day in August of 2014. By the time it was over, Officer Wilson would shoot twelve times until 18-year-old Michael Brown was dead on the ground. Amidst protests and civil unrest that shook the small town of Ferguson, a white St. Louis County prosecutor with known close ties to the police convened a predominantly white grand jury.

Behind closed doors and veiled in secrecy, the St. Louis County grand jury decided not to indict Officer Wilson – setting off another chain of protests and violence that spread throughout the country. And one month later, another grand jury in Richmond County (Staten Island), New York, refused to indict NYPD officers involved in the chokehold death of Eric Garner that had occurred in July and was captured on video and displayed to the world.

I am proud to be a member of the first state to ban the use of secret grand juries when deciding whether to indict officers in cases of deadly force. Once again, California is leading the nation in an important expression of basic fundamental fairness.

Before Governor Jerry Brown signed this recent bill, investigations into the circumstances surrounding a homicide involving a police officer could be conducted in secret since grand juries’ transcripts and proceedings are always confidential. Given the recent unrest which followed the grand jury decisions in Ferguson and Staten Island, this bill responds to the atmosphere of suspicion and distrust which has threatened the very fabric of our justice system. By requiring open, public hearings of officer-involved shootings, and other death investigations, the citizens of California will be able to see justice in action, with all its warts and imperfections.

The national furor that resulted from Ferguson and Staten Island overshadowed another similar fatal police shooting that occurred in Los Angeles. Two days after the tragic shooting of Michael Brown in Ferguson, LAPD officers shot and killed a 25-year-old mentally ill black man, Ezell Ford. Unfortunately, such a shooting is nothing new. Since 2000, more than 538 people have been killed by police in Los Angeles. In one 12-month time period ending in 2014, 39 police-involved deaths – or roughly one killing every two weeks – occurred in Los Angeles County. According to the “Homicide Report” compiled by the Los Angeles Times, the vast majority of those killed were black or Latino.

I have toiled in the trenches of the battle, representing defendants accused of committing criminal acts for almost 35 years, and I have sued police officers, sheriff deputies, and other law enforcement officers for over 30 years. And while I will gladly acknowledge that probably more than 95 percent of all law enforcement officers are honest, righteous public servants, all too often I come into contact with that small percentage who are not.

To protect and serve

I see officers, who are sworn to protect and serve, routinely lie under oath to protect their fellow officers. I can count on two fingers the number of times over the past 30 years when a law enforcement officer acknowledged in one of my depositions that he had in fact used unreasonable force, or fired his weapon a bit more quickly than his training instructed. So, mine is perhaps a more jaundiced view of our law-enforcement officers.

I believe there is a police officer culture of lying to convict people whom they believe are guilty which has become part of their DNA. Judges will continue hearing their testimony in criminal and civil cases. Prosecutors will continue prosecuting their criminal cases, and defense lawyers will continue representing these officers when they are sued. The problems in the system are deeply imbedded and institutional. So, to my mind, the struggle for fair and just policing is tremendously challenging and will continue well into the future.

Law-enforcement officers have been allowed this luxury of shading the face of truth in large part because police officers enjoy almost blind loyalty by most California jurors. Jurors give police officers the benefit of every doubt. Officers will always cite the intense danger of police work to justify almost any conduct. (A favorite police line is “‘Tis better to be judged by twelve than carried by six.”) And, it is dangerous out there. Cops are often viewed by jurors as protecting the line between them and total anarchy. It is not surprising then to understand why police misconduct trials are among the most difficult cases for plaintiffs to win.

It has been my experience that the tide of public opinion ebbs and flows depending on the images which are then present in the public discussion. In the wake of the vivid images of Eric Garner on the streets of Staten Island choking for his last breath, or Walter Scott as he trots away from the South Carolina police officer who then shoots him in the back, many are asking what has caused this seeming spike in negative police interactions. For some civil rights advocates, there is renewed hope that this increased public discussion will lead to a lasting shift in the way America views its police agencies.

In December, I was part of the trial team that represented the family of Darren Burley, a black man who was killed while in police custody and subjected to an illegal chokehold that suffocated him. The six-week wrongful death trial took place in Long Beach while national protests were going on after the fatal police shootings in Ferguson and Staten Island. The jury found that the Los Angeles County Sheriff’s deputies were negligent and awarded his wife and children a significant recovery. At the time of that verdict, I stated, “In the wake of the troubling decisions in Ferguson and Staten Island, it is particularly heartening that the fair-minded people of Long Beach were able to listen to all of the evidence and determine that a black life did matter.”

I remember how public opinion shifted in favor of plaintiffs who sued police officers in the early ’90’s during the months following the release of the Rodney King beating video, and the community’s response to the officers’ not guilty verdicts in Simi Valley. Average jurors up and down the state became willing to at least listen to citizen claims of misconduct and abuse. That good will for plaintiffs only lasted for a few months until the tide of public opinion shifted back in favor of law enforcement officers.

That good will in favor of those challenging police officers was rekindled in Los Angeles, at least, during the highly publicized Rampart scandal which rocked the LAPD in the late ’90s. The integrity behind more than 100 criminal convictions was implicated with allegations of cops lying under oath and planting evidence on innocent people. The scandal led to more than 140 civil lawsuits against the LAPD with substantial settlement payouts. Still, the tide of public opinion swung back in favor of law enforcement officers in the months and years that followed.

Over the past year or so public protests in cities all across our country have emerged as a seemingly steady stream of outrageous police force echoes across the public airwaves as news stories show stunning examples of the misuse of police authority. Many are again surprised by what they have seen and heard.

Welcome to my world

When discussing these recent events, I am always quick to remind my colleagues, “Welcome to my world!” This is nothing new to me. There has not been any sudden groundswell of police misconduct. Rather, with the advent of cell phone videos, and other new technologies, what has often gone on in the darkness and shadows, is now finally coming to the light. Almost everyone with a smart phone has a video camera in their hip pocket these days. Consequently, more and more public presentations of the seedier side of police work will continue to grab the public’s attention.

In California, I suspect more and more police agencies will follow the LAPD’s lead and begin equipping their officers with body cameras. While cameras will never tell the full story of what happened, and won’t prevent wrongful acts of police misconduct from occurring, the increasing use of body cameras and the greater introduction of cell phone videos will enhance the public’s trust in the difficult work police officers do every day.

On the same day Governor Brown signed the bill banning secret grand juries, he also signed another important law, The Right to Record Act, formally confirming the rights of all civilians to record or photograph a police officer in public areas, without the threat of being arrested for interfering with a police officer or otherwise obstructing justice. So this law, which merely reinforces existing law, should provide a powerful incentive for officers to treat everyone with whom they interact reasonably. You never know who might be holding a cell phone recording their actions.

Our society grants tremendous power and authority to men and women wearing the badge. They can stop you on the street. They can take away your liberty. They can even take your life. With that authority comes the awesome responsibility to exercise that power reasonably. Because when they don’t, someone’s life is forever changed as a result.

In terms of the use of police-issued body cameras, civil libertarians should rightfully monitor and question policies on when those recorded images will be released. No one is suggesting the public release of every recorded traffic stop, but rules and regulations will have to be developed to address the legitimate circumstances of when a recorded encounter should be released into the public domain.

The public should pressure police agencies to not allow officers to review recordings of their interactions with members of the public before writing reports of those encounters. A healthy debate is brewing among law enforcement agencies throughout the state on whether to allow officers to review their videotaped recordings before writing the reports of the interactions. On the one hand, proponents contend that allowing officers to first review the recordings will enhance the accuracy of their report writing and promote justice. On the other hand, opponents fear that allowing officers to first review their recordings will undermine the accountability which cameras are designed to bring. They fear a rogue officer will simply change his written report to coincide with the recorded images.

This debate is not going away any time soon. I suspect that in the coming weeks and months the tide of public opinion will shift back again in favor of police officers. We hear about shootings in Texas and other locations that are now being connected to the Black Lives Matter movement. While no direct connection to any formal protest is apparent, other than the race of a perpetrator, there is an apparent need to cast blame and to attack a protest movement that seeks to draw attention to historical inequalities in the manner in which law enforcement officers patrol black and brown communities across this nation.

So, what does the future hold, you might ask? Well, I continue being an optimist. As more and more law enforcement agencies embrace alternative methods of community-based policing, I am hopeful that the barriers between the police and many of our communities will continue to fall. While wanting a strong police department is an understandable community goal, it cannot come at the expense of protecting and truly serving all segments of our state. Laws like those recently signed by our Governor give me hope for a brighter tomorrow. I look forward to a time when, in the words of Dr. Martin Luther King, a person is not judged by the color of their skin but by the content of their character.

A luta continua ... the struggle continues.