By Dayvid Figler

An effective call to action should be a specific ask. Not only should advocates for a cause never dilute their message with ambiguity, scoring a win can often come down to a verifiable result that followed from a clear demand. Think “we want Michele Fiore to resign” versus “we want Las Vegas City Council to not be so dysfunctional and crazy.” Or “make a Perry Mason reboot where he takes down the system for false arrests and corrupt prosecutions” versus “make Dayvid Figler happy.” (Seriously, Perry Mason only lost one out of hundreds of murder cases, and no agency or officer was held accountable?)

When advocacy groups fashion a call to action, the good ones are mindful of this rule. Of course, for every rule there is an exception, and the one we’re hearing in the streets right now (and have been for decades) is a call for “Justice” as in “No Justice. No Peace.”

But the wide variety of things that can be considered “justice” depend on many factors and who’s asking for them. Sadly, “justice” for beleaguered people of color may not be the same “justice” sought by paranoid suburbanites freaked out about an imminent incursion from a new “organization” (Aunty Fay?) they heard about on Fox News as one of the scariest new bogeymen since George Soros, Hillary’s Pizza Basement and hip hop music. Justice is an elusive butterfly that never is fully captured, let alone caught by the nets of arrest or trial.

We’ve been hearing much about “criminal justice” and “social justice” and “justice for George Floyd” and “police reform” and “police prosecutions” and “law and order” (the concept, not the sound effect) in the context of international protests stemming from the shocking homicide of an unarmed man by a Minneapolis police officer while other officers looked on. We are hearing some calls to arrest bad actors/officers/apples — and put them into the same horrifically ineffective and broken “criminal justice” system many are protesting (which I always think is a strange position, but punishing hypocrisy never pauses for irony).

It can be convoluted; especially as some (i.e. people who don’t feel the undue weight of oppression) ask, what is it that they even want? Wasn’t the policeman who killed George Floyd arrested? Didn’t they disband the Minneapolis police department? Isn’t that the justice being sought?

Maybe. Maybe not. 

Butterflies.

Of course, the actual, sure-fire answer to ending the protests is to immediately dismantle all systemic and institutional racism. Unsurprisingly, the response from those same systems and institutions is not “YES! The George Floyd situation is the tipping point to make us realize we’ve been doing most everything wrong even in our own towns and we are ready to get out of the way and reinvent” but more “we agree George Floyd was unjustifiable, so let’s talk and talk and talk about how racism is a real thing everywhere except in Nevada.”

The predictable response of many protestors (and one prime reason the strife rages on) is: “This isn’t exclusively about an event in Minnesota; oppressive encounters of a wide spectrum happen every day throughout this country, including Nevada – why don’t you ever admit that ?!” or the less wordy, “We’re all just so tired of talk.”

And after hundreds of years of racism in this country, indeed, I can’t imagine just how tired all the talking must make people of color. The protests go on, and the people who are being asked to listen either get it, or in too many instances, resort to blathering the racist and/or naïve memes and tropes are plentiful in a malignant, “we get the point, stop disrupting our city” sort of vibe. You know, the whole whataboutism of crimes against people of color that doesn’t come from cops, but from within those communities; or making it about “following the laws” even when those same laws are applied in racist ways; or misquoting crime stats without any historical background or context; or hey, weren’t the Irish slaves too, and didn’t they fix their own lot without all of you protesters denying us access to a Fatburger on the Las Vegas Strip? 

To those people, please stop. Just. Stop. And listen. Listen to the reasonable thing that can be done now to show good faith and start the journeys of healing deferred for far, far too long.

So what can be done now? What are some calls to action that can happen with little delay?

Glad you asked.

I’ve compiled a list of things Nevada elected officials can do to begin a path towards, erm, JUSTICE. At least in the world of law and supposed order. These are the easy ones, the long-delayed ones, the ones that should not be controversial, and as far as a call to action, they are that.

But first a disclaimer or two.

My experiences are a mere footnote to those of people who suffer the daily brunt of inequities. I am merely a person who works in the world of criminal justice. I have seen injustices up close, and listened closely to my clients (especially those of color) who have told me stories that are both viable and disturbing. They are not isolated incidents. They can be fixed with a new vision of what a system designed to curb bad behavior can do better. The old system is broken. We need to re-evaluate what we call “criminal justice,” not merely “reform it.” Borrowing loosely from the great Angela Davis, when we talk about reforming a system, we tacitly acknowledge it is a legitimate system capable of reform; however “criminal justice” - especially as applied in modern day - is not a legitimate system. 

Also, a discussion of institutional racism is NOT merely a conversation about police and prosecutors and judges and prison. To say it is would be short-sighted and condescending to this movement. Yes, people of color are disproportionately and negatively impacted by our carceral institutions and the agencies that expose them to that system, but that is not nearly the only or even the most important conversation that needs to be had right now. This is also about access and adjustments regarding quality education, housing, employment, political representation, banking, resource access, sector investment and development and transportation. In other words, this is about actionable redress of racial bias in all its forms. It is about pushes for diversity and representation and everything else that goes with systems that have put the equal citizenship of actual citizens behind for too long. 

Providing redress for the horror of what happened to Mr. Floyd, or even finally addressing the “criminal justice” system with progressive eyes, is not the sole call of the protest. Oversight, accountability, transparency are all key big stroke items necessarily being discussed and even acted upon but also not the exclusive subject. It’s not just about “criminal justice” (which has been on fire for a long time), but “criminal justice” is something that needs to be worked out. People shout “No Justice. No Peace” and I hear, “We deserve something concrete right now.” 

Here are some specific things Nevada leaders should do RIGHT NOW to show a sincere desire to move forward and be best when it comes to the “criminal justice” system interactions explicitly with Black lives, but with good practices and lessons for all people of color or marginalized communities. 

1. ACKNOWLEDGE THE BATSON PROBLEM IN NEVADA. FIGURE OUT WAYS TO GET MORE BLACK PEOPLE ON JURIES.

Nevada has a documented Batson problem, which means our prosecutors are repeatedly and systemically removing identifiable racial groups, including Black people, from sitting on juries. There is no consequence for the prosecutors who attempt to do this, nor for those who get away with it. (There is a consequence to the taxpayers, though, when the case must be done over again.) Many judges are also either inconsistent or have difficulty ever applying the standards to root out this improper action. 

Further, there are unanswered questions regarding the sincerity of trying to identify Black people in the community in order to reach them for jury summons. The issue is being debated, but it doesn’t need debate. It needs action. We need to immediately call in skilled lawyers from the NAACP or other groups fighting for racial equality and have them train Nevada prosecutors on the importance of including Black people on juries. Additionally, any prosecutor found doing otherwise should be given a time-out from any case involving a Black defendant. Finally, we must invest time and resources into not only making sure Black people can participate as jurors, but we empowering them to do so.

2. EXPOSE THE PRACTICE OF PRETEXTUAL STOPS AND LIMIT POLICE ACTION FOR MINOR OFFENSES, ESPECIALLY PEDESTRIAN, TRAFFIC MATTERS AND MISDEMEANOR WARRANTS.

The fundamental, guaranteed Constitutional right to liberty runs contrary to the efficiencies sought by law enforcement. More simply stated, police are always looking for constitutionally approved excuses to detain, search and even arrest people they “think” may be up to no good. For too many police officers, the Constitution gets in the way of them getting their jobs done. They believe that if they could only stop, interrogate and search the person (and their car and phone and maybe even home) of people they suspect of wrongdoing, they could make the community a safer place. They’re not wrong. Indeed, if they could stop and search every person, car, phone and home in Nevada, they could probably come up with thousands of new arrests every day. But is that a system we want? People of color, especially Black men, find themselves the targets of this kind of police “work” all too frequently. We call these pretextual stops, and the police deny they are real.

That’s a problem.

We all know that law enforcement officers will say of this particular kind of stop that they lawfully stopped a person for not having an operating light shining on their license plate, or for signaling to turn right 90 feet from the corner when the code requires 100 feet, or for going 2 miles over the speed limit. More likely, and what often occurs, is the police follow cars, sometimes for miles, until the driver commits an articulable minor traffic offense, and then begin the process of forming reasons to pull the individual out of the car, conduct a search and begin asking questions wholly unrelated to the traffic stop (do you have drugs or weapons in the car, where are you going, etc.). These statistics allegedly are not properly compiled and certainly are not released. Indeed, many of these types of stops are initiated by specialty divisions of the police like “problem solvers,” “gang units,” “vice,” et cetera – not the regular traffic patrols many White drivers encounter.

I recently watched a federal court proceeding where two Las Vegas Metropolitan gang unit officers named Douglas Calder and Korrenthian Gross had the fruits of their unlawful search thrown out because they offered conflicting reasons for why they had stopped the Black driver (it was a claimed traffic offense), turned off their body cams, improperly searched the criminal history of the individual, removed him from his car and searched him (without finding anything) and detained him too long for the stop to be in service of a traffic offense. The only penalty (apparently) is that they wound up losing the case. What happened to them back at the station? What incentive do they have to not do it again?

If there’s a bench warrant out for a person, for even the most minor offense, that same driver would have been immediately arrested and the searches and inquiries (not to mention expensive car towings) would begin. 

These sorts of stops need to be revealed with data and names of officers, and the practice needs to end. Better yet, the gang unit and other special units that have no interest in traffic or minor pedestrian offenses need to stop engaging in any investigation of those things. It makes some police work harder and, well, that’s exactly what the Constitution contemplated. 

Additionally, traffic warrants need to be abolished in lieu of civil penalties, and the default for people who commit minor traffic offenses or misdemeanors should be a quick citation and not any search, unnecessary detainment or arrest unless there are articulable extenuating circumstances that merit violations of liberty. Lest we forget, minor stops of unarmed Black people have resulted in far too many deaths in the conversation now, from George Floyd to Philando Castillo to Eric Garner to Sandra Bland to so many more.

3. CREATE A SEARCHABLE POLICE MISCONDUCT DATABASE.

This is self-explanatory. The “criminal justice” system oftentimes relies upon the reliability of law enforcement and their general truthfulness. Defense attorneys attempt to cross-examine the police officer on the stand with any relevant, prior improprieties or issues regarding veracity. The issue of course is that law enforcement officers to most come with a sort of super-credibility that is presumed unless proven otherwise. However, if that law enforcement officer has committed past misconduct, this could make or break a case that depends on  credibility of testimony. There is currently no searchable database to find documented misconduct by police or allegations of racial biases in the workplace and so no legitimate challenges to credibility despite the fact that information may exist. This needs to end.  Finding this information should not be a matter of gamesmanship, but a right. 

Take Calder and Gross in the above example. I just happened to be in court the day I saw their hearing. I watched the same damning video (and lack of video) that the federal magistrate saw. The outcome was as it should have been. But what about the next case involving the gang unit – or these officers in particular? Shouldn’t an individual who claims police harassment and/or pretextual stop be afforded the opportunity to know whether the arresting officers have done it before? Shouldn’t the judge know? Shouldn’t the jury hear it? And what about officer discipline? Shouldn’t the officers be penalized – especially if their wrongful actions occurred in the past or on a regular basis, as many in the protest marches proclaim? Are there other officers doing it and getting away with it? (Spoiler: there are others doing it and getting away with it.)

These are well-paid public servants, after all. We can no longer afford to shield the ones who wrongfully interfere with lives, especially Black lives, on the street under the shallow blanket of a marginal and too often subjective constitutional authority that was designed to encourage workarounds instead of inalienable constructs. We have a society that depends on the police. We want them to catch people who hurt others and bring them to “justice.” In a democracy, that can’t mean taking shortcuts, though, and it can’t be entrusted to people without accountability. We need to look at who is doing what – and we need full transparency at all times.

4. SAY THEIR NAMES.

George Floyd has been mostly galvanizing. Nevada law enforcement agencies, elected officials, and even traditionally insensitive institutions of all stripes have (almost) universally come out condemning the actions seen on that horrific video. And yet, there has been nary a single mention of similar cases here in Nevada. It’s as if the finger-pointing to Minnesota is a no-brainer, but the delusion that this isn’t happening here, in Nevada, right now, is a brain-buster. Here are some names:

Byron Williams.

Keith Childress, Jr.

Trevon Cole.

Tashii Farmer (Brown).

Stanley Gibson.

Roy Scott.

Swuave Lope.

These are homegrown cases in which unarmed men of color were killed by the police, some already in custody or while in handcuffs. These are cases evading any serious reckoning. Their families do not forget, and many have been part of the many protests going on in our city. While all were supposedly “justified” – by rules that are at the core of the reasons for the protests – it is not lost on the sane that those rules were created by police departments and legislatures, which tend to give great deference to the “fear” of the public and “safety” of police officers and their mostly subjective beliefs. And though some of these cases may not require further inquiries, we’re still upside down on the priority. The priority can no longer be justifying the death of these and other humans so we can forget them. We must reverse engineer and figure out the point in time when professional law enforcement could have acted differently to avoid these situations. 

Police press conferences need to stop being centered on mug shots, a list of prior offenses and reasons why things went bad and someone in custody was killed. Instead, they need to be a compassionate, somber time of hyperfocus on the kinds of decisions that put a man like Byron Williams in a compromised position with a knee in his back.

In the Williams case (which isn’t even a year old), police chased a Black man who ran when they tried to stop him for not having a bicycle light at night. Once they caught him, a familiar story rang out, yet didn’t resonate with the public like George Floyd despite both men uttering the same last words: “I can’t breathe.” When asked by a reporter why police turned off their body cams, Assistant Sheriff Charles Hank, said “policy allows it sometimes.” When asked “what is the protocol for a person who says they can’t breathe?” the law enforcement officer suggested that sometimes suspects pretend to be distressed in order to distract officers. (Recently, NBC presented a damning account of this case, which still has not been referenced by any local official who has been shocked and offended by the actions of the Minneapolis police.)

Our public officials need to acknowledge these and other people of color in our community who died unarmed or vulnerable. To start saying their names. To repent on some level for the tragedy, even if in their minds it was justifiable. To work not only to develop new use-of-force policies, but also new protocols to de-escalate and even avoid interactions.

Byron Williams might be alive today if he didn’t flee — but maybe he wouldn’t have fled if he knew he’d simply be given a bicycle light citation and sent on his way, instead of being afraid of an intrusive inquiry that many in his position so often endure.

5. AND EVEN MORE.

As conversations continue in many forums (usually among the already converted), we all need to understand that what will really make a difference is a culture change: a shift from justification mode to compassion and policy-making designed to avoid confrontational situations and the further erosion of Constitutional rights. We need more sunshine, not more distraction which enables us to cower deep inside our existing institutions. We also need:

• An end to secret grand jury proceedings for police officers accused of misconduct
• More case reviews of people in prison, mindful that they may have been there long enough because the system wasn’t fair to them from the onset
• At least a two-year moratorium on the death penalty to expose any racial inequities or other problematic (and expensive) components
• Repeal of SB 242 which provides overbroad protections for officers who have allegedly engaged in misconduct
• Studies on disparate sentences (and probation revocations) between people of color and white people who are similarly situated

These are calls to action to begin to remedy the impact of generations of deference and subservience to law enforcement, prosecutors and judges. Our democratic system needs to not only reckon with past misdeeds, but create new systems that no longer negatively impact generations of lives that absolutely, positively…. matter. This is how, as directed in the Constitution, we fulfill our never ending duty to make this Union more perfect.

Dayvid Figler is a criminal defense attorney based in Las Vegas. He previously served as an associate attorney representing indigent defendants charged with murder for the Clark County Special Public Defender’s office. During his legal tenure, he served a brief appointment as a Las Vegas Municipal Court judge. Figler has been cited as a noted legal expert in many places including the New York Times, National Public Radio, Newsweek, USA Today, Court TV and the Los Angeles Times. His award-winning radio essays have appeared on KNPR as well as on NPR’s All Things Considered program.