A few months ago, I asked what we should do about law enforcement officials that broke the law in a piece called “Is it time to police the police?”. It’s taken me some time, but now I’ve compiled the responses and got some suggestions to float to the global hive-mind that peruses FoI (and my own site)
First, let’s be clear. Not all cops are ‘dirty’, but at the same time, not all citizens are criminals. Yet since it’s considered acceptable that in many western countries, you have to prove you’ve done no wrong to a police officer, rather than they have to prove a criminal act has been committed, it’s only fair to consider them the same way.
So let’s start with some processes. In many police jurisdictions, when a police officer is suspected of a crime, or malfeasance they are generally suspended on full pay, or put on ‘desk work’. A criminal act would be investigated, an arrest made, and most jobs won’t pay you if you’re sitting in a cell. In the UCDavis pepper-spraying, we saw Lt. Pike do it. In the Tomlinson case, there was video evidence that he was attacked by an officer unprovoked. Both officers were kept at full pay during the investigations.
CHANGE – Where there is prima facie evidence that a crime has been committed, he should be suspended from his job, and treated like any other criminal. No working as an officer (or security guard), no badge, no gun, no perks, no pension, and no pay.
While some will say it’s harsh, it’s no more than the rest of us face. And it may return a measure of ‘think first’ to those on the job, who won’t be assured of a lengthy paid vacation if they’re caught doing what they shouldn’t. Additionally, police officers are often not keen on their actions being documented. Many officers in the US have tried to apply wiretapping statutes to recordings of officers performing their duties (yet again, they can record you and be exempt from the same laws). Also, some states have forces that are less than ‘open’ with their recordings. In Oklahoma, for instance, police dashcam recordings are classed as records for the purpose of the open records law, with one exception, state troopers, and now judges in that state have been expanding on it.
CHANGE – Any attempts by officials to prevent, halt or damage recordings without good reason (such as it actually impeding the arrest) to be charged with the relevant evidence tampering or investigation impeding laws. All officer camera footage (be it mounted in a room, on the officer or a piece of equipment) is to be considered an open record for the purpose of all relevant laws, while still being mindful of data protection and privacy statutes.
Next, let’s talk about malfeasance. Officers are known to commit criminal acts, knowing that their profession lets them get away with it. When things come to trial, often the ‘good conduct’ of an officer is cited as a mitigating factor. However, in a job, that allows powers beyond those available to the citizenry, the fact you’ve done it for years without a problem isn’t a factor. What is a factor is the extreme breach of the public trust placed in you when you took your place in that job. To quote Spiderman, “With great power, comes great responsibility”.
CHANGE – Where an officer of the law (which includes prison guards, and judges) commit a crime on duty, or use their position to influence things or ‘get out’ of punishments (such as an off-duty LEO flashing a badge to get out of a speeding ticket), then the crime is modified to be one committed ‘under colour of authority‘. A modification of minimum and maximum sentencing guidelines to take into account the breach of public trust, by abusing their position for crimes committed “under colour of authority”. I would suggest a 50% increase in both.
Weapons are the main difference between law enforcement and civilians. In countries like the UK, they’re the only ones armed legally. But on top of firearms, you have other weapons that are prohibited from civilian use/possession or are under extremely strict regulation. That’s everything from Pepper/CS/PAVA spray, through batons (side-handle, extendable/ASP and traditional truncheons/billyclubs) electro-stun (including tazer), less lethal rounds, and vehicles. Then there’s the radio, which can call another dozen or more officers, also similarly armed, all amped up and ready to go because of what they’ve been told.
Often these are used to threaten, or otherwise in accordance with their legal, intended use. Of course the textbook is again, Lt. Pike with the pepper spray, there was also the Oakland occupy incident shortly before that, where a protester was targeted and struck in the head with a beanbag round; the punishment? A year later, he might lose his job. No criminal charges, no loss of pay, just the job, a year later. Meanwhile a similar attack on a police officer is considered so serious, a Congressional Bill has just been submitted concerning ‘Blue Alerts’ when an officer is seriously injured or killed. It’s hypocrisy of the highest order.
There are amazing numbers of cases each year of excessive force, and the growing trend now is to use Tasers to bring events to a swift conclusion with the officer in control. In one 2005 incident, a man was tasered over 30 times, according to news reports. No disciplinary action was taken, and it took months to even get his effects.
2005, when they were still being introduced to law enforcement at large, was a bad year for taser-victims, but not cops. In a California case, Bryan v. McPhearson, the court decided the officer’s actions qualified under the doctrine of qualified immunity (cops will only be responsible for excessive force if they act in a way that is so unreasonable any cop would have known such conduct was against the law – basically acting criminally) Since ‘the law on taser police brutality’ was still evolving when the incident happened in 2005 the cop should get a break from liability. You read that right, because no-one had told the cop, he didn’t have any notion of right and wrong. Ignorance is an excuse, if you wear the badge.
It’s this that characterizes many police brutality and excessive force cases. On one hand the police officers are professionals dedicated to knowing and enforcing the law, when they’re on the prosecuting side, their word is solid and their testimony is unquestionable. However if they’re a defendant, they’re amateurs who don’t know the law, can’t tell right from wrong, and whose training and instincts are so poor, that they can’t be held responsible for decisions made when doing their job because they have to do them quickly.
CHANGE – Convictions of violence/brutality/excessive force under colour of authority are to be treated as the serious violent criminal acts they are. If the act was not reactive, and especially if prolonged, or needlessly escalated (When you use a weapon before a less confrontational method for instance, or a weapon deliberately misused) then it should be considered a murder/attempted murder case (depending on the status of their victim). Likewise any deaths in custody are to be considered suspicious at all times.
Next, investigations into acts called into question are often done informally, and internally. There are ‘nod-and-wink’ investigations where a semblance of scrutiny is given, but in reality it’s a smokescreen. Meanwhile colleagues tend to close ranks, resorting to the omerta typified by the Mafia, better known as “no snitching”. This is an attempt to subvert the law, by denying evidence. The intent is often portrayed as one of ‘trust’ (as in ‘I trust he has my back by covering up’) with the result that evidence is suppressed, or made contested.
CHANGE – All investigations are to be meticulously detailed, such that another investigator, even from across the country, can follow-up on the investigation if needed. Failure to do so would leave the investigator likewise subject to investigation for their actions. Officers attempting to lie, cover up, or obstruct the investigation to be charged as co-conspirators in the crime, in addition to the relevant charges for obstruction/perverting of justice, and dealt with as above.
Once under investigation and where it looks to succeed, many officers elect to retire, or resign, to avoid, or reduce punishment. While the decision to resign is certainly their prerogative, it should not be construed as an alternative to investigation and punishment. At no other area do you get to walk away from crimes by quitting. If you work at a regular company, and get caught stealing, you don’t say ‘well, you don’t need to charge me, I’ll quit’ (unless you’re the CEO, but that’s a whole other topic) yet in both the justice field, and politics, it’s considered acceptable, and sometimes ‘noble’.
CHANGE – No retirements permitted while under investigation; would have to wait until exonerated. Resignations are acceptable, but it in no way affects the course of the investigation. No investigation is to stop because the person or persons investigated have left their position. If the investigation is substantiated, then the penalties are the same as if they were still employed, because the later state of (non)employment has no bearing on the actions while employed.
Finally, some people get in trouble, get out of the job, and then come back. This has happened with police officers (the officer in the Tomlinson case was involved in a violent incident in the 90s, quit, joined a different police force years later and then transferred back to London) but is also common with politicians (See Silvio Berlusconi). Diseased limbs aren’t given back to patients or left in the open. Once they’re removed they are then destroyed. That way reinfection is minimised. At the same way, a stigma must be placed on these actions, and people MUST be aware of their level of untrustworthiness, and that they have abuse a public position.
CHANGE – Investigations and their documentation (see above) are to be recorded. Any person with a ‘colour of authority’ conviction is disqualified from any position of public authority.
OPTION: A register of, let’s just say ‘Corruption’ (while the term isn’t accurate, neither is the term ‘sex offender register’ when a significant number of actions that get people on it are not sexual in nature) which are public record.
What we have here are a number of measures that basically enhance the requirements to investigate criminal acts by those in a position of responsibility; politicians as well as law enforcement and the judiciary. The problem of corruption, not just financial corruption but moral and authoritarian corruption is becoming endemic.
These solutions are not overly radical; they amount to treating abuse of public office as being serious crimes in themselves, on top of the crimes committed. Some might say it’ll lead to officers and politicians second-guessing themselves, but they’re not being asked to follow new laws, just the same as everyone else. No police officer will let someone off a crime because ‘they were under pressure’. “I’m sorry I beat him with a big stick but I was under pressure and it was a split second decision” will get you off only if you’re a police officer.
If it makes people stop and consider their actions first, that’s all to the good. In exchange for the power they’ve been given, they also have to accept the consequences, and enhanced punishments when they’re caught doing wrong is one of them. You can hand out punishments, but don’t want them imposed on you? Tough, find a different career.
The intent is deterrence. When you can get away with a crime, knowing that any investigation won’t do much, you’ll be getting full pay for it, and that your buddies will back your version; there’s no incentive to behave within the law. When those tasked to implement or uphold the law have contempt for it, what chance do ordinary people have?
It is time to make it clear that corruption, malfeasance, bullying and swaggering arrogance is no longer acceptable.
While many officers (and politicians) won’t like these kinds of rules and claim it hampers their ability to work because they’re afraid of the consequences, that’s exactly what it’s like for ordinary people, day in, day out. And we’ve now seen the kind of behaviour not having these rules has engendered. There’s a lack of respect for police officers now, and for politicians, and it’s because the rules don’t seem to apply to them anymore. It’s time to change that. If you’re good, and honourable, and follow the law, you’ve nothing to fear. After all, you willingly took on the added abilities, now you get the added punishments if you abuse them. That’s only fair.
Meanwhile, this won’t magically restore the public trust in politicians and law enforcement, but it will address one of the biggest problems that has eroded it. Decades (centuries in some places) of abuse can’t be ignored overnight, but by taking responsibility and ‘cleaning house’, it can happen.
This piece was also published at Falkvinge.net and is released under a CC0 license