- About Us
- Our Talent
- Our Work
- All Practice Areas
- Appellate Litigation
- Commercial Litigation
- Cybersecurity and Data Privacy
- Employment, Discrimination, and Sexual Misconduct
- FCPA and Anti-Corruption
- Investigations and Crisis Management
- Public Interest Litigation
- Regulatory and Securities Matters and Litigation
- White Collar Criminal Defense
- Contact Us
Opinion: Police impunity and social distancing arrests
May 6, 2020
Twitter is aflame once again with harrowing images of the latest beatings of New Yorkers of color by police officers abusing their authority. Unfortunately, like the officers involved in countless other incidents of similar brutality, “going viral” is likely the worst punishment these officers will face. That is because, at every level of government, police officers are protected by a nearly impenetrable bubble that protects them from virtually any accountability for their actions. Generally speaking, as a matter of law and custom, police officers cannot be sued, they will not be fired or convicted of any crime, and unless a conscientious citizen happens to be standing nearby with a cell phone when the brutality occurs, the public is likely to never know about it. Until some aspect of this changes, we can expect to see more disturbing videos on social media.
Every branch of government – legislative, judicial and executive – has chipped in to create a veritable forcefield around offending officers. At the legislative level, there are robust laws in place that, in the name of protecting privacy, keep the public from learning about the misdeeds of miscreant officers. In New York, Civil Rights Law Section 50-a, passed more than forty years ago, protects from public disclosure “personnel records” of police officers, including any disciplinary records that happen to exist. This means that the relatively few police officers who happen to get disciplined, even those with a long history of misconduct, are shielded from most forms of public scrutiny. The judiciary has played a huge role as well. The doctrine of “qualified immunity” shields government officials – including police officers – from personal financial liability if they acted in an objectively reasonable manner and did not violate “clearly established” federal law. Sounds reasonable in theory, but, as applied, there are countless,absurd examples of judicial decisions finding officers to be protected from suit because it had not been “clearly established” that certain brutal conduct violated the law. U.S. Circuit Judge Don Willett wrote in a 2018 decision that, "To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly." This longstanding issue was discussed in a 2018 dissent by Justice Sonia Sotomayor who wrote that the Supreme Court’s “one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment.”
But these legislative and judicial protections are not all that enable abusive officers to continue overstepping their authority. The executive branch is also all too willing to defend and continue to utilize officers who misbehave on the job. Each time a new viral video of police brutality surfaces, we often quickly learn that this was not the offending officer’s first rodeo. Eric Garner’s killer – Daniel Pantaleo – had four prior substantiated complaints for abusive stops and searches. Francisco Garcia, the NYPD officer who recently brutalized an African-American bystander during a social distancing stop in the East Village, has been sued at least seven times, costing taxpayers (not Garcia – thanks to qualified immunity) nearly $200,000. How is it that certain officers can repeatedly offend until they happen to be caught on tape? Because the police and prosecutors are the proverbial foxes guarding the henhouse. By and large, without public accountability, law enforcement often will not meaningfully punish rogue officers. And criminal convictions for officers who shoot and kill in the line of duty are extremely rare.
Prosecutors who continue to bring cases while relying on the credibility of malfeasant officers are equally complicit. When I was a public defender in the Bronx, many of my cases that went to trial involved officers who had previously been sued or disciplined, sometimes repeatedly, for prior acts of misconduct. In one case, the arresting officer had been sued multiple times for false arrest in precisely the same circumstances, in the same location, that he had arrested my client. My client was – correctly – acquitted after trial. It was the jury – not the prosecutor – who ultimately dispensed justice. In another, the lead detective had previously been disciplined for acts of “corruption” involving the destruction of police reports. He lost some vacation days for that, which likely explained his blasé attitude about having “lost” some of his police documents in my case. Despite obvious concerns with this officer’s history of misconduct, the prosecutor persisted to trial. My client was – correctly – acquitted by a jury of his peers. Accountability is touted most by police officers and prosecutors seeking to justify punishment for the accused. But if justice is to be applied equally under the law, accountability must apply to the officers as well.
By design, there are layers upon layers of protection that shield police officers from accountability. If we genuinely want less police brutality in society, something within that formidable bulwark has to give.
Until then, retweet.
Read this article at the New York Daily News.
More news from our Newsroom
Published on: May 20, 2020
Sean Hecker Moderates NYCBA’s Webinar on Conducting Cross-Border Investigations During the Pandemic and in a Post-COVID-19 World
NEW YORK, NY, May 20, 2020 – Kaplan Hecker & Fink partner Sean Hecker today moderated a virtual panel hosted by the New York City Bar Association.
Published on: May 19, 2020
Kaplan Hecker & Fink partner Marshall Miller writes in Bloomberg Law about the increasing threat posed by ransomware attacks amid the COVID-19 pandemic -- and the preventive steps every business... Read More
Published on: May 18, 2020
President Donald Trump and three of his children can't push off facing a putative class action accusing them of widespread fraud, a New York federal judge ruled Monday, rejecting the Trumps' recent... Read More