Law Stretched Sideways: The Politics of Police Misconduct

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Photo by Victoria Kalagina via Flickr

At a time when the nation’s attention is focused on the trial of Derek Chauvin and other cases of alleged police misconduct, fiction can sometimes provide deeper insights into the unsavory side of the U.S. justice system than daily headlines.

That’s what persuaded Caleb Mason, a former federal prosecutor in the Southern District of California to examine the gray areas of American justice through the story of a hardboiled ex-New York cop who finds himself entangled in a case of greed, ambition and revenge that reveals the moral ambiguities of those entrusted to uphold the law and the lengths to which some people will go to obtain retribution when the legal system fails them.

coverIn Stand Up For Bastards, Mason, currently in private practice as a Los Angeles criminal defense attorney, depicts a system controlled by political interests, enforced by abusive policing practices, and weighted against the most marginalized members of society. Any resemblance to the controversies currently afflicting U.S. policing and the courts, he acknowledges in a chat with TCR, is not entirely coincidental.

The following transcript has been edited for length and clarity.

The Crime Report: What prompted you to write fiction?

 Caleb Mason: I started out as a literature teacher before I was ever a lawyer. I think the world needs literature more than another piece of legal commentary. Literature reflects social problems and broader legal, economic, gender, race, and political issues in society. You have to write about what you know, and what I know is the business of investigating crime and litigating it in the courtroom. I have personally done cases that involve just about every aspect of what’s in the novel. Everything in there is based on actual legal work.

The starting point for a lot of great detective fiction is when you have somebody that’s been harmed in a way that the legal system cannot redress. and that’s what inspired me to write the book. The idea came from a Supreme Court case, Kirchberg v. Feenstra, which determined the constitutionality of state “head and master” laws, which deem the husband “master” of all marital property and allows him to control marital property without his wife’s consent. It was totally unconstitutional, it violated the 14th Amendment, but the court’s decision was non-retroactive, so no one who had been victimized by this rule up until that point could seek redress.

TCR: Much of the book deals with the intersection of politics and criminal justice. If we’re going to achieve any sort of reform in our country today, does that close relationship need to change?

CM: Criminal justice should never have anything to do with politics. That’s why, historically, the Justice Department has always prided itself on being independent. Some have alleged that the Justice Department [under the Trump Administration] was the target of attempted political meddling in decisions about indictments and investigations. When I was in the Justice Department, the big scandal was the firing of eight US attorneys during the second George W. Bush administration which was, apparently, the brainchild of a couple of people in the White House Counsel’s Office who had influence over then-Attorney General Alberto Gonzales. (Editor’s Note: Gonzales resigned in 2007 following the furor over the firings.)

Elected political leaders can set priorities. That’s what they’re supposed to do, and what they’re elected to do. That’s our constitutional system, but when it comes to a decision about whether or not the facts of a particular investigation warrant an indictment or not, the political leadership needs to stay out of that entirely. And that’s a hard thing to do unless you have a culture in your office where everybody from the line prosecutors up to the supervisors truly believes that your job is simply to pursue justice case by case by finding facts and charging appropriately as the facts dictate.

TCR: Your protagonist, Marcus Heaton, is kicked off the NYPD for punching out his commanding officer after refusing to plant drugs in a victim’s car in order to cover up a use-of-force incident involving a fellow officer. Today, the debate around protecting officers involved in these kinds of use of force incidents and other misconduct is focused on qualified immunity. Does the practice have merit?

CM: Police are allowed to use force; that’s what we have them there for. [But] we’re worried about instances of unconstitutional excessive force. What I think we should want from policing is transparency and a mechanism for being able to adjudicate when officers behave badly. Unfortunately, qualified immunity [which shields officers from many civil rights lawsuits] has expanded beyond any justifiable limits. Qualified immunity asks whether the officer received notice that what he or she did violated the Constitution. Today, the Supreme Court, and the lower courts following their lead, have applied this doctrine to simply dismiss lawsuits on the grounds that the officer could not reasonably have been aware that his or her conduct would be illegal.

That in itself would not necessarily be a problem so long as each successive case could establish a new legal rule that future officers would have to follow, and that would protect all future citizens who might wind up in this area. There is a Supreme Court case called Saucier v. Katz that was the established methodology for adjudicating qualified immunity. You would first ask if the officer’s conduct violated the Constitution in the opinion of the court. For example, if an officer conducted a full search of somebody’s cell phone with no specific probable cause that the cell phone contained any evidence of a crime or contraband, and no previous case had said that he couldn’t do that.

In that instance, it would make some sense to say, “Officer, we’re not going to hold you liable for violating this person’s rights because no case had told you that you couldn’t do it.” However, the court is going to write an opinion so everybody knows from now on that that’s unconstitutional and you can’t do it. The problem is that in 2009 another Supreme Court case, Pearson v Callahan reversed that order of operations. It ruled, instead, that you don’t have to make a substantive finding as to whether or not the conduct was constitutional or not. All you have to find is that there was no case clearly established and the case is dismissed.

But when you throw out that second step you end up never creating a rule that’s going to protect future individuals, and you’re never creating a rule that’s going to give notice to future cops. So, what will and does happen is every single case will get thrown out on qualified immunity even if it presents a new set of facts. There will never be a situation when the Supreme Court will create a new rule of law. You have to have a system in which courts are going to continually make new rulings, because case law and legal doctrines can evolve really quickly and with great regularity in the system of common law.

At some point, I do think it’s reasonable to just say, “Look, we spent all this money on police training, let’s train people correctly and then let’s hold them to constitutional standards regardless of whether or not there was a published appellate case directly on point.”

TCR: Judicial discretion is another concept you touch on in the book when Marcus winds up in court for a crime that he didn’t commit. While it seems that he should get off easily, through his perspective you find out that even preliminary hearings can go south quickly for almost no good reason and land an innocent person in jail. Considering the ongoing Derek Chauvin trial, how does this idea from your book exemplify the possibility that any case can end differently then we might expect?

 CM: What I was trying to capture in Marcus’ mind is what goes through the minds of a lot of criminal defendants: No matter how much I may believe that I’m innocent, the system is going to find a way to convict me. And Marcus is just in the preliminary hearing before a judge to determine whether or not there’s probable cause to move to the full trial. Based on what probable cause actually means, the fact that you didn’t do it does not necessarily mean there isn’t probable cause. There’s a defect in the state’s case because they don’t have a murder weapon. But that still might not mean that he gets acquitted or even that his case doesn’t get held for trial.

There are plenty of cases that have been made circumstantially, without a murder weapon, even in the face of what appears to be pretty strong countervailing evidence. The Derek Chauvin case is the opposite of that, and I’ll express the constitutionally optimistic view that I think a jury of Americans sitting in good faith are going to review the evidence and return a verdict that they believe is supported by the evidence. But if you don’t have direct evidence of Chauvin’s mental state regarding whether he intended to kill George Floyd, then it becomes a circumstantial inference for the jury based on what they’re seeing.

Do they believe that the evidence shows them, beyond a reasonable doubt, a person who intended to kill this man he was kneeling on? There certainly are people who would say yes, but there are probably also people who would say no. And some of that depends on what we learn about the training, policies, practices, and methods that he was taught and what he’s done over the course of his career. But I can’t predict with certainty that the trial is going to lead to a result that everybody watching is going to conclude is just. The question is whether or not our justice system is really an engine of justice.

A lot of literary works on this question say no, not at all, it’s all a joke. I don’t think that. It’s critical that we have faith in these institutions so that we don’t always think that the system is rigged or somebody has their thumb on the scale. And it’s supremely unhelpful when any person in a position of power expresses contempt or disregard for our legal institutions because, in my experience, virtually everybody working in the criminal justice system believes in their heart that they are pursuing justice and are trying to pursue justice in an ethical and transparent way.


Caleb Mason

The problem is chronic understaffing and overburdening, particularly on the defense side. And if you get convicted due to a lack of resources to put on a meaningful defense and you felt that you had no alternative but to take an unfavorable deal, versus if you know the system was rigged in some way that guaranteed that same result, it doesn’t feel any different.

TCR: In your book, one of your characters, Mike Settentio, is an extremely corrupt cop. How can departments do a better job of rooting out the morally compromised people who are attracted to the industry of policing for the authority and power that comes with it?

 CM: The description of Big Mike Settentio is drawn largely from the Mollen Commission (created by then-Mayor David Dinkins in 1994 to investigate corruption in the New York Police Department). The officers who talked to the Mollen Commission said that you didn’t come into the department corrupt, but that it was cultural. If you have an institution that has systemic corruption, it’s really difficult to be the person who’s going to speak against that. The vast majority of police officers go their whole career without using excessive force or having people complain about excessive force. In fact, studies suggest that the large majority of serious excessive force and illegal police violence is committed by a very small portion of police officers.

The problem is we don’t seem to have a very good system for identifying such officers and getting them straight out of departments. Systemic corruption does not have to be taxing all the local drug dealers and extorting businesses; it can just be an organizational tendency to close ranks around officers who use excessive force, cover for them, have sudden unexplained failures of memory, and to leave gaps and ambiguities in your reports.

But I think we have an increasing amount of transparency in statistics, increasing ability to analyze the statistics, and hopefully an increasing willingness from police departments to act on those statistics. A lot of states are moving in the direction of increased transparency. California has a new law that makes it a matter of public record whenever there’s a sustained allegation of excessive force against an officer. Anyone who files a public records request can obtain it. That’s hugely important because it now allows departments to take actions that they might not otherwise have been able to take and it allows for public pressure to be brought to bear on those departments.

The culture becomes easier to change when you have a little transparency and an ideology from the ground up that we’re not here to pound heads. I’ve been a civilian police commissioner in Claremont, California for six years now, and one of the things that we’ve done is ask our chief to bring us descriptions of incidents in which officers have successfully de-escalated situations that might have resulted in the use of force so that we can provide some sort of commendation and acknowledgement for that officer as a signal that is what we value.

You could even have their ability to deescalate be an actual criterion for promotion and advancement in the department. But when you’re in a culture in which escalating the use of force is something that you’ve been taught, and it’s something that you have learned will be accepted by the courts, then it’s going to continue.

TCR: The former cops in your book are all dealing with some form of trauma from their careers in the force. When it comes to changing the culture of policing, why is the issue of officer wellness, and the effects of the job of policing on the men and women who wear the uniform, one of the last conversations to be had?

CM: I think a lot of people will tell you that one of the reasons it hasn’t gotten a whole lot of attention is due to a culture of toughness, of not letting on that you’re experiencing any kind of psychological condition due to the job. That’s not just because officers feel they need to act tough, but also due to a justified perception that if they admit any kind of mental health problem it’s the kiss of death as far as promotion and advancement is concerned. Officer mental health is something that should be explored and addressed, especially if we think that there’s a link between unresolved, psychological and emotional trauma and potential future uses of force that could have been avoided, either on duty or off duty.

I think that by changing the way in which we approach policing, by not immediately acculturating officers to see the people they’re policing as the enemy, and shifting to a less adversarial and less aggressive approach, we will also alleviate a lot or a significant amount of officer trauma. That’s a controversial statement in a lot of departments because officers will say they patrol high crime areas with a lot of violence and a lot of people with guns, and that’s a factual statement because it is a dangerous job in which anybody in any interaction could potentially kill you.

However, I think there are also a lot of other policing contexts in which we do not need to do the job in that way and it becomes problematic when we do. The George Floyd case is a good example of this problem. You had an alleged nonviolent minor property crime that for some reason escalated into a situation where Floyd is pinned to the ground with a knee on his neck and the other three officers involved didn’t speak up when it was necessary to speak up. Instead, they said they thought he was in an excited delirium, that he might be on drugs, and that he might jump up and attack them so they had to keep him pinned down. But if we want police to stop treating people that way then they have to stop thinking of people in that way.

TCR: What is the effect of the representation of our criminal justice system through fiction, be it literature, television, or film, on society’s understanding of policing and how that system functions in general?

CM: Depictions of law enforcement and criminal justice in literature, and particularly in TV and movies, have a reflective relationship. What I mean by that is they build and play off each other. Life imitates art and art imitates life. I do think that people in law enforcement model their behavior based on what they see on TV and vice versa. You have these very seductive depictions of cops, prosecutors, defense attorneys, and judges flooding our popular culture and it’s incumbent upon people who are creating that popular culture to try not to do it in a constantly glorifying way.

How many cop shows end with someone pulling out their gun and shooting the bad guy? Most actual shootings are not like that at all and our aspiration as a society should be to reduce the total number of shootings and reduce the number of times that police feel they have no other choice to use their guns.

And while most of us understand the difference between fiction and reality, if you are a member of the entertainment-producing class, and you care about living in a constitutionally just and transparent society, you should be concerned a little bit with what type of materials you produce and what type of vision of society you are conveying in them. I don’t think that literature, TV and movies are merely mirrors to society, they’re not purely reflective, they’re also something you’re creating so they’re shaping that reflection. I don’t think it’s a good idea to encourage visions of the country that are bleaker than reality.

But, at the same time, the actual criminal justice system is full of cracks, holes and loose ends and it doesn’t work for everybody all the time. In fact, for a lot of groups, it doesn’t work most of the time and that’s an area that we have to explore in literature. Detective fiction can constantly remind us that no matter how hard we try, it’s not a perfect system, it’s never going to be a perfect system, but we can always be inspired to try and do a little better the next day. I think a lot of people in the business really do believe that.

Isidoro Rodriguez is editor of TCR’s Justice Digest and writes frequently about policing issues. Caleb Mason is an occasional contributor to The Crime Report.

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