LAL #017 — The Law of Policing and the Silly Putty Constitution

Police reform is easy. It starts with an act of Congress requiring each and every shooting death case to be heard by a jury. Let the people decide what is and is not reasonable. We get the government we deserve, but that doesn't mean we should accept whatever is dished out in the name of justice. When government fails, we the people should have the right to demand reform.  I think meaningful reform in the area of policing starts with the federal judiciary. The fact of the matter is the federal courts have gone a long way toward creating a culture of impunity for police officers. Don't get me wrong. I support the police. In the dead of night, I will call 911 every time I need help. And I will be grateful when an officer arrives to render assistance. I've spent decades cross-examining police officers in civil and criminal cases. The result is a deep and abiding respect for the risks they take and the heroism it takes to do their work. But when a police officer kills a civilian, I think juries can and should decide whether the killing was justified — in each and every case. Under current law, federal judges have powerful tools to dismiss these cases before they ever get to a jury. The result is that the public has little chance to learn about policing, and almost no say in crafting the very standards governing the conduct of those who can shoot and kill them in the name of the state. Police use of force cases are governed by a fourth amendment standard of reasonableness. The fourth amendment is not written in granite, its edges are not hard, firm and immutable. All the amendment prohibits are unreasonable searches and seizures. Such general clauses of the constitution resemble silly putty, more than granite — they stretch and can be twisted and pulled to reflect the constituencies of the communities officers serve. Let juries decide each and every police shooting case. Eliminate qualified immunity; eliminate pre-trial motions such as summary judgment. When the state kills, legitimacy is at stake.  I don't want a federal judge, appointed for life, deciding what is and is not reasonable — these men and women live in privileged cocoons, they are employed for life, given marshals to protect them. Privileged umpires ought not to be stretching the strike zone at will.  That is the people's work. --- Support this podcast: https://anchor.fm/norm-pattis/support