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When you work in the criminal justice system, you unfortunately see a lot of injustice. This is sort of the point – without wrongs that need to be righted, there would be no need for such a system in the first place. Or any government at all, for that matter. Most of the lawyers and cops and judges I know and have worked with over the years seek to rebalance the scales as best as they can, one defendant at a time, one case at a time. 

It has its rewards and moments of redemption and hope. But cops and lawyers also tend to drink a hell of a lot more than is strictly healthy. Most criminal defendants use substances themselves, and often for surprisingly similar reasons.

Injustice comes in many forms and from many different places. It is unjust when a thief steals from your business, or when a government prevents you from earning a living without adequate cause, or a guy hiding behind a badge badgers, harasses, lies or murders. 

It’s hard to remember it, watching riots erupt across America, but we live in extraordinarily just times, historically speaking. Part of the proof, ironically, is that we seem to notice injustice more than ever. When injustice is simply a part of everyday life, it’s easy to be numb to it – a blind spot for police and judges for certain. But now cameras are everywhere, and video is so easy to share, and every instance of wrongdoing can be thrown in our face instead of swept under the rug. 

It can feel like the problem is getting worse, but instead, it’s simply being exposed to the disinfecting power of sunlight. This is a good thing, even if it’s also a painful thing. I am glad our police officers wear cameras as well as guns, and gladder still that every citizen can carry both as well. Cameras expose bad cops and protect the good ones, and well-armed citizens keep government agents polite. 

When any given story of crime – whether committed by a civilian or a government agent acting under color of law – catches fire in the media, it can be a surprise to those of us who see that sort of thing every day, because often that story is indistinguishable (or more tame) than a hundred others we saw that same month. This isn’t necessarily a bad thing, but the social media mobs should take great care – that spotlight is selective and often arbitrary and can mislead as well as disinfect.

***

I can tell you stories about police misconduct, just from my own experience. Last year, I had a case in which an Nevada Highway Patrol supervisor lied on the witness stand about the reasons he stopped and searched my client, who was facing a life sentence. Only dumb luck exposed him, but while my client was released from jail and the district attorney got a tongue-lashing, that trooper faced no personal or career consequence. He certainly was never prosecuted for the felony crime of perjury.

A few years ago, when I was still prosecuting, a resisting/obstructing a police officer case came across my desk. A trooper decided to stop an old man for jaywalking (which he wasn’t), tried to arrest him for not being able to produce an ID (which no one legally has to carry in this country), and threw him to the ground when the confused citizen rightfully asked what the hell was happening. I filed a detailed motion to dismiss, and made sure his chain of command knew what happened. The last I’d heard, that trooper was merely reassigned (and not for the first time) – a much easier task than firing the member of a public employee union.

I once also had a case where a rural sheriff’s deputy knocked on a guy’s door to question him about a week-old misdemeanor. When he lawfully asked the deputy to leave his property and lawfully declined to cooperate further with her investigation, she unlawfully threatened to arrest him for “obstructing.” When he ran back inside his home, she tased him in the back and chased him inside. The taser malfunctioned, so he kept running and obtained a pellet gun. The deputy drew her pistol, but tripped over her own feet, saving the guy’s life (but killing the kitchen ceiling). I prosecuted the guy, because you can’t draw a firearm on a cop even when the cop is in the wrong, but I also told the sheriff his deputy (who had a history of citizen complaints) should be fired and that her body camera footage should be shown at every POST Academy class as a cautionary tale. Instead, she got a medal. 

I could take up plenty more space with plenty more stories about everything from hidden evidence to illegal and gratuitous body cavity searches. It could even seem like this sort of thing is the norm. But it is not – for every act of misconduct from a government official I’ve seen, I could point to a thousand acts of grace, kindness, protection, service, dedication and justice by men and women wearing badges of all description. 

But only unreasonable or dishonest people don’t already know or acknowledge this. The good cops hate the bad cops as much – maybe more – than anyone else. The problem is that bad cops still persist. The question is, how best do we change that?  

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To answer the question of what to do, it is often helpful to discuss what not to do. Whenever a police officer disgraces his badge and acts badly or criminally, there is a temptation to find some societal fault – hidden veins of systemic racism, an opposing political party being in power, too much or too little religion in our lives. This thought is an odd sort of comfort to well-meaning people faced with a problem they don’t understand and don’t know how to solve. And it’s cheap — it requires nothing more than sharing a meme featuring Gandhi or Martin Luther King, Jr., and reveling in self-righteous identity politics for a while. 

It’s a lazy response. It’s routinely a factually incorrect response. It’s often insultingly condescending and vaguely racist – calls for white Americans to “use their privilege” to “speak for people of color” invoke more of Kipling than King to me. But worst of all, it’s counterproductive. If all of society is to blame, no single individual can be expected to do anything concrete (except maybe do a little navel gazing or on-line virtue signaling). On the other hand, if individual cops and individual supervisors and individual politicians are responsible for acting, we can identify with specificity what needs to change, and how it can be changed, and who is failing to make changes.  

Government oppression and misconduct – both on macro and micro scales – is nothing new. It’s sort of the reason our nation exists in the first place, and government agents behaving badly was taken as a given by the framers of the Constitution generally and the ratifiers of the Bill of Rights particularly. 

The temptation to abuse power is not something uniquely evil about our nation or our culture or our society – rather, it is part of the human condition. Most police officers are drawn to their profession because they truly want to protect and serve their communities. But by its very nature, the badge will always also call to people who never wanted to give up shoving weaker kids into lockers in high school, or (even worse) those kids who got shoved that now want the power to shove back. 

The only way to stop people from abusing their authority is to hold them accountable when they do. Sometimes that means firing them. Sometimes that means suing them. Sometimes that means prosecuting them. Sometimes that means making them (in)famous. Misconduct grows when police feel protected by politicians or too-powerful police unions.

For example, Derek Chauvin, the Minneapolis police officer who murdered George Floyd, had a lengthy history of citizen complaints. The then-Hennepin County prosecutor, current vice-presidential contender Amy Klobuchar, kept her hands clean of any use-of-force investigations, including a 2006 shooting Chauvin had been involved in, relying instead on untrained citizen grand jurors. Good prosecutors keep good cops good by insisting on high standards, and help weed out the bad ones. Bad prosecutors allow bad cops to unfairly tarnish all of law enforcement by turning blind eyes to misconduct – or worse, defending indefensible police actions in court.

Individuals cannot be properly held accountable by “society.”  They have to be dealt with by other individuals. Every single member of law enforcement in the state should be an at-will employee, directly and immediately accountable to someone citizens can vote for (or against). The doctrine of qualified immunity, which shields state actors from civil liability, must be narrowed or abolished altogether. The only systemic thing that will have any effect is to more broadly limit government’s power over citizens in the first place.

Otherwise, why not riot? What’s the point of voting if the people you’re voting for can’t or won’t change the broken parts of your government?  (Here it must be noted that voting for the same party or people over and over again seems not to be helping the cause of the people who need it the most. It’s almost as if it’s a bad idea to let political parties take you for granted.) 

And the people we vote for – the sheriffs and city council members – must exercise constant leadership, which means getting down in the deckplates. Ask any beat police officer, and they’ll know who the bad or dangerous eggs in their department are. Catching, confronting, and disciplining “minor” misconduct early is almost certain to save countless lives years down the road, and make a more just society besides.

***

I went to college in Minneapolis. While I was there, I worked for the University of Minnesota Police Department, supervising nearly one hundred student “security monitors” who served as inexpensive force-multipliers for the police officers. The campus was in the heart of the city, and working with Minneapolis PD was common. As a former martial arts instructor, I trained my fellow students in basic self-defense tactics and use of force (which we were never allowed to use, except in extreme emergencies). I admired the officers I worked with, and loved the relatively safe, clean and vibrant city filled with friendly and diverse people. I was proud to be a small part of keeping it safe. It breaks my heart to see it in flames as I write this.

We do not achieve a just society by wishing for it, or posting memes, or blaming amorphous “systemic” evils which are convenient political cudgels but are impossible to specifically identify or solve. There is no magic wand. 

Instead, we must deal with injustices one individual at a time, one incident at a time, one case at a time. We must be especially aware when government agents of any description – from the governor himself to the newest patrol deputy – infringe upon the rights of free people. The bigger deal we make out of “minor” infringements, and the more consistently we defend our rights, the less likely we are to have “major” problems now or in the future. Such a strategy is hard, tedious, Sisyphean, politically fraught, and rarely generates headlines – but if we truly want a more just society, we’ll commit ourselves to it.

Orrin Johnson has been writing and commenting on Nevada and national politics since 2007. He started with an independent blog, First Principles, and was a regular columnist for the Reno Gazette-Journal from 2015-2016. By day, he is a criminal defense attorney in Reno. Follow him on Twitter @orrinjohnson, or contact him at [email protected]

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