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We Need a Separate Police Justice System, a Court Martial for Cops

We need a new system of justice for police. We need court martials for cops. I hope someone in Congress sits down and writes a bill to do exactly this before the next Rodney King or Philando Castile or Eric Garner or George Floyd dies, and another city burns.

Policing the streets of American cities and towns is not just a job, like most of us have. When I, or anyone not a police officer, leave the house, my wife is pretty sure I won’t be encountering dangerous people who want to lie to me, escape from me, or kill me that day. For police officers, this is the job.

There’s an old George Carlin joke: “Somewhere out there is the world’s worst doctor. The scariest part is that someone has an appointment with him tomorrow.” Applied to police, this isn’t as funny, because somewhere out there is the world’s worst police officer. The scariest part is he’s arresting someone tomorrow.

We have developed a legal concept called “qualified immunity” to give officers the benefit of training, wisdom, and judgment inherent in police work, especially when dealing with the use of force. But like any profession, there are good police officers and bad police officers. Not just “bad” like the movies, where the villain has half a corrupt department in his pocket, but bad in the sense that the job has worn this person’s sense of humanity down to the nub, and all that remains is risk management.

Stop someone, guy looks like a thug. Has muscles and tats, like I’ve seen come out of prison. Did I recognize this guy from a previous arrest? Sure looks like a felon. He’s not looking me in the eye, being evasive. Is he high? What’s he on?

All these judgments take place in seconds, every time an officer encounters a person with whom they need to interact.

In 1992, two California Highway Patrol officers chased Rodney King‘s Hyundai on the 210 freeway at speeds up to 117 mph. After leaving the freeway and running a red light, King finally stopped, and was quickly surrounded by three LAPD squad cars and a police helicopter overhead.

Tim Singer ordered the occupants of the Hyundai to leave the vehicle and lie face down on the ground.  Allen and Helms complied, but King remained in the car.  Melanie Singer again shouted at King to get out, which he did.  Singer described King as “smiling” as he stood by his car and waved at the police helicopter overhead.  As Singer ordered King to get his hands where she could see them, King–according to Singer’s testimony–“grabbed his right buttock with his right hand and he shook it at me.”  King finally complied with Singer’s order to lie on the ground.  As she drew close to King with her gun drawn to make the arrest, Sergeant Koon shouted, “Stand back.  Stand back.  We’ll handle this.”  Koon would later say he intervened because he thought the use of guns was “a lousy tactic” that would probably result either in the death of King or the CHP officers. 

King’s bizarre behavior and his “spaced-out” look led Koon to suspect that King was “dusted”–a user of the drug most feared by police departments, PCP.  Police believed that the drug made individuals impervious to pain and gave them almost superhuman strength.  King’s “buffed out” look added to his apprehensions.  He concluded that King was probably an ex-con who developed his muscles working out on prison weights.  (Although Koon’s suspicions about the PCP would later prove unfounded, he was right about King being an ex-con.  Earlier that winter, King had been paroled after serving time for robbing a convenience store and assaulting the clerk.)  Koon grew even more concerned after King successfully repelled a swarming maneuver by his officers and–more remarkably–managed to rise to his feet after being hit twice by an electric stun gun called a Taser

The Trials of Los Angeles Police Officers’ in Connection with the Beating of Rodney King  
By Doug Linder (2001)
(University of Missouri – Kansas City)

All that took place before George Holliday got his video camera out and filmed the horrific beating that followed.

After King was handcuffed, Koon asked all officers who participated in the use of force to raise their hands.  Officers Powell and Wind both raised their hands, but–remarkably–each learned for the first time that the other officer had participated in the use of force.  Powell and Wind had, in the jargon of law enforcement, “tunneled in” on King. 

In state court, a “gem of a jury” included a couple of retired military, and two NRA members. The small community of Simi Valley’s jury pool included only six black people, five of whom decidedly did not want to serve. The lone African American who could have been seated was removed by peremptory challenge by Michael Stone, attorney for Officer Laurence Powell.

It still took the jury seven days of deliberation, despite the strong video evidence, to acquit the officers. The verdict was read on April 29, 1992, and hell was then unleashed in L.A.

A year after the riots claimed 52 dead, and Rodney King’s plea “can we all just get along?” a federal jury convicted Stacey Koon and Laurence Powell for violating King’s civil rights. Officers Theodore Briseno and Timothy Wind were acquitted. Some legal system justice was finally done, but the mob justice far outweighed its benefit.

In some areas where looting and burning raged a year ago, a few people peacefully picketed with placards, some leaped into the air and cheered, and others planned barbecues and parties to celebrate what they regarded as justice. Many rose early to listen to the verdicts. “I woke up this morning and my mom was clapping when she was watching TV,” said Kevis Manuel of Long Beach. “The two who did the most damage got what was coming.”

From the Archives: Federal jury finds that Stacey Koon and Laurence Powell violated beating victim’s civil rights, Los Angeles Times, April 18, 1993

Under our belts until the current day, we have the Ferguson riots, in which “hands up, don’t shoot” was falsely claimed and made popular. In that, the officer, Darren Wilson, was not prosecuted, and this decision was held up at both the local and federal level. We have “I can’t beathe,” with Eric Garner’s death at the hands of Officer Daniel Pantaleo. A Staten Island grand jury declined to indict Pantaleo, and Attorney General William Barr ordered the federal case to be dropped last year.

Of course, there are other cases, such as Philando Castile, and not just involving black victims. Daniel Shaver was killed by an officer using an AR-15, while he crawled on his belly in a hotel hallway.

What all these events have in common is that police officers are being held to account for excessive use of force, investigated, charged (or not), tried, and acquitted or convicted, by civilian law enforcement, courts and juries. I’m no lawyer, but it’s clear this system doesn’t work.

The Bill of Rights guarantees Americans a trial by our peers. But certain circumstances get to define “peers” and the kind of justice delivered. The military is subject to the Uniform Code of Military Justice, for example, for actions committed during active duty. This doesn’t mean soldiers can’t be tried in regular criminal courts–they are, when they commit regular civil crimes. It means that, in the context of doing their jobs in the military, the military gets to decide “peers” and deliver justice, through the court martial system.

Police need a court martial system, one that’s separate from the civil justice system, which is fraught with jury pool selection, friendly judges and prosecutors, and a terrible lack of expertise by those who need to decide whether and how far “qualified immunity” should extend.

I am not a police officer. I don’t know what it means to encounter a dangerous criminal in a chance traffic stop. I don’t know what it means to wake up to learn a fellow officer was shot and killed during a stop. How could I possibly judge whether a 20-year veteran police officer went “too far” in restraining a suspect?

Even with the horrific killing of George Floyd, there is some tiny room for doubt. The medical examiner’s report indicated Floyd had drugs in his system, including “fentanyl intoxication” and “recent methamphetamine use.” I have never had to restrain a person high on fentanyl or meth, but I know police officers have to deal with this, some on a daily basis. Like Rodney King, a man could resist a lot of force, including a taser, putting officers at risk. Of course, that is no exoneration for Officer Derek Chauvin, who will face murder charges.

What will happen if a “gem of a jury” hears a level-headed, spectacular testimony from Chauvin, with a rather half-hearted or botched cross examination by the state? Could a jury of civilians acquit Chauvin? Is that justice? Like Koon, if Chauvin doesn’t receive justice from the state, the state will certainly receive justice from the mob.

The answer should be some legislation, at the federal and state level, creating a special court and justice system to investigate, charge, try, and convict police officers acting within their duties. Like a court martial, police officers would sit on a panel and decide the case, supervised by a civilian judge.

The Thin Blue Line

You may say, “wait a minute, cops will protect their own.” Like “The Thin Blue Line,” cops see themselves holding back society, and themselves, from the clutches a chaotic, violent, and evil mob.

But really, that’s not true. Most police officers want to be accountable, and want other cops to be accountable. I daresay that cops sitting in a court martial of other cops would, if anything, deliver a harsher justice than the civilian court system. They would take into account the many unspoken rules and oaths of police work that the public never sees, and rarely understands.

Like in the military, when a captain loses his ship, it’s the captain who pays with a court martial. It’s not always just, and sometimes it’s terrible, like with the post World War II conviction of Capt. Charles McVay III, who lost the U.S.S. Indianapolis while returning from the most secret mission of the war–delivering the atomic bomb to Tinian. His ship was sunk because of the Navy’s strict radio silence, and even the unheard-of testimony of the Japanese sub commander who sunk the Indianapolis could not save him.

Was it fair? No. And years after McVay’s suicide, the Navy, in 2001 agreed that Congress should “symbolically” exonerate the disgraced captain. That’s how Navy justice works–duty first.

Police justice is no different. Betrayal of the public trust, to protect and serve, is a much higher standard than the “qualified immunity” offered by civilian courts. Cops will hold other cops to a much tougher bar of behavior than a civilian jury would. And if there is an instance of back-scratching or wagon-circling, the only ones the public can blame are other cops, which will give them a strong incentive to play straight.

Decades of convulsions and riots in the streets have proven that the current system of justice for police officers, who are unique in their role as peace keepers and investigators of criminal actions, while being members of the civilian community, is inadequate. It’s not just broken, it’s not fixable in its current form.

We need a new system of justice for police. We need court martials for cops. I hope someone in Congress sits down and writes a bill to do exactly this before the next Rodney King or Philando Castile or Eric Garner or George Floyd dies, and another city burns.

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