[Reformists like Al Sharpton and Van Jones have continually appealed to activists to appeal to the Obama Administration and to Eric Holder’s Department of Justice, to get justice and relief and an end to routine police abuses and unending bloody killings (against black and brown people in large part ) from coast to coast. But this article reveals that such reformist appeals are deceptive and mis-directive. As people learn more about the systemic cause of ongoing police terror, many turn away from electoral solutions, and toward community-based self-defense organizing. — Frontlines ed.]
At Supreme Court, Eric Holder’s Justice Dept. Routinely Backs Officers’ Use of Force
It was the kind of violent police confrontation that Attorney General Eric H. Holder Jr. has frequently criticized in Cleveland, Albuquerque, Ferguson, Mo., and beyond. But last month, when Ms. Sheehan’s civil rights lawsuit reached the Supreme Court, the Justice Department backed the police, saying that a lower court should have given more weight to the risks that the officers faced.
At the Supreme Court, where the limits of police power are established, Mr. Holder’s Justice Department has supported police officers every time an excessive-force case has made its way to arguments. Even as it has opened more than 20 civil rights investigations into local law enforcement practices, the Justice Department has staked out positions that make it harder for people to sue the police and that give officers more discretion about when to fire their guns.
Police groups see Mr. Holder as an ally in that regard, and that pattern has rankled civil rights lawyers, who say the government can have a far greater effect on policing by interpreting law at the Supreme Court than through investigations of individual departments.
“There is an inherent conflict between people at the Justice Department trying to stop police abuses and other people at the Justice Department convincing the Supreme Court that police abuses should be excused,” said Ronald L. Kuby, a Manhattan civil rights lawyer.
To some extent, conflict is built into the system. The Justice Department’s core mission is law enforcement. It oversees the Federal Bureau of Investigation, the Drug Enforcement Administration and the Bureau of Alcohol, Tobacco, Firearms and Explosives, among others. In every administration, it is in the government’s interest for federal agents to have as much leeway, and as little liability, as possible.
“It’s natural that the instinctive reaction of the department is to support law enforcement interests, even when a particular case may have compelling facts for the individual defendant,” said Neal K. Katyal, a former acting solicitor general in the Obama administration. He said the Justice Department had a duty to tell the court what effect a ruling could have for federal law enforcement agencies.
When police abuse cases make it to the Supreme Court, even if they have nothing to do with federal agents, the Justice Department often weighs in. Last year, the department sided with police officers in West Memphis, Ark., who shot a driver and passenger 15 times, killing them at the end of a chase.
John F. Bash, a Justice Department lawyer in that case, told the justices that “there is some level of reckless driving in response to a police pursuit that authorizes the use of deadly force.” What was certain, he added, was that the officers were entitled to qualified immunity, which shields them from civil rights lawsuits. The Supreme Court unanimously agreed.
Every such victory makes it harder for citizens to prevail when they believe they have been mistreated by police officers. It also adds obstacles for the Justice Department’s own civil rights investigators when alleging police misconduct. That has led to some tense debates inside the department, current and former officials say, as the government’s civil rights and appellate lawyers discussed when the department should weigh in, and on which side. Those debates have led the Justice Department to take more nuanced positions than government lawyers might have otherwise, the officials said.
“Law enforcement officers are routinely called upon to face grave dangers and to make often-unheralded sacrifices, and the law must give them the room to make real-time judgments to protect public safety,” said Emily Pierce, a Justice Department spokeswoman. “At the same time, building trust between law enforcement and the communities they serve and protecting human life and human dignity requires accountability for law enforcement officers. The department recognizes — and is committed to striking — that balance.”
Mr. Holder has called the civil rights division the crown jewel of the department, and it has rarely had such a high profile. Even before it garnered national attention with a scathing rebuke of the Ferguson Police Department after the fatal shooting of an unarmed black teenager by a white officer last summer, the division issued similar reports on other departments, including those in Seattle, Albuquerque, Newark and New Orleans.
Those efforts, along with deeply personal remarks from Mr. Holder about racial profiling, have drawn criticism from police officers who say he has not supported them. But Darrel W. Stephens, the executive director of the Major Cities Chiefs Association, said many officers probably did not know how often Mr. Holder’s Justice Department stood with them at the Supreme Court. “He’s sincere,” Mr. Stephens said. “He is supportive of the police.”
Private civil rights lawyers, though, have been frustrated that the Justice Department’s aggressive stance in civil rights reports does not extend to its positions before the Supreme Court. “A report can have an impact on a department for a time,” said Gary Smith, the lawyer for the driver in the Arkansas case. “But case law touches every officer in every department in the country.”
Eventually, he predicted, police departments facing civil rights investigations will challenge the Justice Department on its apparently contradictory positions. “You’re telling the Supreme Court it’s O.K., and you’re doing this to us?” Mr. Smith said.
When Justice Department lawyers argue before the Supreme Court, they typically draw fine distinctions and avoid outright contradictions. But such cases can send seemingly mixed messages. For example, the civil rights division said in December that police officers in Cleveland were too quick to use force against mentally ill people. For support, it cited the federal appeals court decision in the case of the mentally ill woman in San Francisco — the same decision that Justice Department lawyers would argue against a few months later.
Similarly, the Justice Department criticized the sheriff in Franklin County, Ohio, in 2010 for using stun guns on inmates while they were handcuffed and posed no threat, or when they committed minor rule violations. In a Supreme Court case to be heard later this month, the Justice Department has sided with Wisconsin jail officials who used a stun gun on an inmate after he was handcuffed and taken from his cell for refusing to remove a piece of paper covering a light fixture in his cell.
The Justice Department sees those cases as evidence not of conflict but of how its lawyers strike a balance. In the Sheehan case from San Francisco, despite siding with the police, they argued that officers must make some accommodation for a person’s mental illness when making an arrest. And in the Wisconsin case, they agreed with the inmate about the legal standard needed to prove abuse, even as they again supported the police.
For Mr. Holder, altering the department’s approach to police abuse cases would amount to a major policy change, one that F.B.I. agents and other federal investigators would surely oppose, said William R. Yeomans, an American University law professor who served in senior roles in the civil rights division during the Clinton administration. So when tensions arise, protecting federal agents almost always wins. “Obviously it’s a problem,” he said. “The institutional interests in support of law enforcement are very powerful and very real.”
Because of that history, Steven R. Shapiro, the legal director for the American Civil Liberties Union, said it was unfair to criticize Mr. Holder’s tenure too harshly. The Justice Department has always advocated its law enforcement authority, he said. And the A.C.L.U. often opposes those efforts. But he said no administration had done more to curb police abuses or to force a national debate over the issue.
“Civil rights has a voice at the table more often and more prominently under this administration than in previous administrations. It’s not merely symbolic,” he said. “To the extent there is dissonance, we’re noticing the dissonance because the civil rights voice is more prominent than in the past.”