Alan Newton and New York's Flexible Principles of Justice

When he ran for mayor, Bill de Blasio made a point of talking about doing what was right and what was just. Based on these basic principles, our mayor-to-be promised to reform the NYPD's Stop and Frisk program and settle the Central Park Five case, and he followed through on both counts, even though both policy calls were politically loaded.

The City engaged in early settlement talks in other serious cases, such as the malicious prosecution and conviction of David Ranta and the wrongful death of Eric Garner. These two settlements were not just right, they were good business. By quickly confronting situations with likely liability and serious damages, the City was able to save money and avoid expensive and divisive litigation. These cases are but a few where New York was willing to take a nuanced view on litigation, to acknowledge its responsibility for its mistakes, and to reconcile that exposure with its obligation to do what is right by its citizens.

So why is Alan Newton getting such a screwing from the City?

Laquan McDonald: Same Old, Same Old

Cook County Coroner's illustration of Laquan McDonald's wounds
 -- courtesy of the New Republic

When I began this blog, I was enthusiastic about the forum and set aside the energy and time to write. As the months passed, I have found it increasingly difficult to talk about the intersecting issues of civil rights, politics, and law enforcement. That is to say, it feels as though we are watching history repeat itself in increasingly short cycles with little change in state behavior or it's response to the evidence of misconduct. When the aggrieved communities express their anger and concern, the media responds by questioning whether these protests are only making it harder to effectively police crime and suggesting that these incidents are the outliers, always the outliers. By the time I have begun to wrap my head around an event, we are already on to the next, markedly similar travesty. Writing posts discussing police violence and the blue wall of silence that supports it often has a pointless feel to it, given the police shooting and cover up that is inevitably right around the corner.

The Right to Remain Silent in a Civil Context

That refusing to respond to questions does not justify an arrest for obstruction of governmental administration (OGA) has just been affirmed by the Second Circuit Court of Appeals. It's sort of an important decision. Many of the routine civil rights cases that I see involve the issue of respect and authority. Simple exchanges rapidly escalate and lost all semblance of proportionality to everyone's detriment. People are often needlessly hurt and arrested, and preconceptions are reinforced all the way around.

A classic example is when a police officer demands identification or an explanation for why the person is somewhere or where he is going to or coming from. These are the sorts of inquiries that are almost never made of certain people or in certain neighborhoods. Put differently, officers then to behave this way in poor areas populated by communities of color, who are sensitive to such race-based policing. When the person declines, the officer sees it as a sign of disrespect to him and his badge, and usually goes all in. As both sides dig in their heels it becomes clear that the only way the officer is getting the info is by forcibly taking it, but to do so without assistance would be foolish, so he radios for help. Moments later, backed up by another half-dozen officers, a forcible takedown is made. The civilian does not fight, but stiffens up, perhaps instinctively, perhaps out of anger, and more force is applied. Words are exchanged and batons or asps might be swung, pepper spray may be deployed. Crowds gather, filming and loudly complaining. The officers get nervous and call for even more backup. The original civilian is arrested because, if nothing else, the police now need to create a narrative to justify and explain all their conduct. The cold truth will usually not suffice, so it is embellished and ginned up until there are enough facts to justify the stop and the subsequent use of force. In cases that make it to lawyers like me, the charges are dismissed and litigation follows.