How to police the police? The U.S. Supreme Court did it once. It can do it again | Opinion

By Matthew T. Mangino

In the fall of 2018, the United States Commission on Civil Rights issued a report on police use of force.

The commission recommended that “Officers should be trained on de-escalation tactics and alternatives to use of force. Tactical training should include strategies to create time, space, and distance, to reduce the likelihood that force will be necessary and should occur in realistic conditions appropriate to the department’s location.” The problem with policing today is not a lack of training or inadequate training or the wrong training.  The problem is more fundamental—what are the boundaries of policing and how do we hold the police accountable if they go beyond those boundaries?

Lawyers, litigators and the U.S. Supreme Court may hold the key to those questions.

During the first half of the 20th Century, police throughout America ignored constitutional guarantees against unreasonable arrests and searches and the use of the “third-degree” when questioning suspects, Lewis R. Katz  wrote in the Case Western University School of Law Faculty Journal.

Katz explained the “third-degree” using court records of a 1936 Mississippi case. A black man was accused of killing a white man.

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A deputy sheriff, accompanied by others, came to the home of the defendant. Upon denying the crime “they seized him, and with the participation of the deputy they hanged him by a rope to the limb of a tree, and having let him down, they hung him again, and when he was let down the second time, and he still protested his innocence, he was tied to a tree and whipped, and still declining to accede to the demands that he confess, he was finally released . . .”

According to Katz, a day later the deputy returned to the home of the defendant and arrested him. The deputy again severely whipped the defendant, “declaring that he would continue the whipping until he confessed, and the defendant then agreed to confess.”

Local police officers could literally beat a confession out of a suspect. This type of conduct was common place. In addition, the police often ignored Fourth Amendment protections from unlawful search and seizure; the Sixth Amendment right to counsel; and, of course, the Fifth Amendment right to remain silent.

Then, in 1961, came Dollree Mapp. She was arrested in Cleveland, Ohio after the police searched her home without a warrant. She was convicted, and her appeal made its way to the U.S. Supreme Court.

Through the Mapp decision, the high court created accountability for local police misconduct. The exclusionary rule, having been used in federal courts would now apply to the states.  If the police gathered evidence by violating a suspect’s constitutional rights, that evidence would be excluded from use at trial.

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With a single swipe of the pen, the Supreme Court wiped out years of overzealous police conduct. Policing improved, training improved and the overall conduct of police officers changed.

In fact, in 2006, the late Supreme Court Justice Antonin Scalia wrote that the exclusionary rule was responsible for ‘‘wide-ranging reforms in the education, training, and supervision of police officers.’’ He believed the court’s decision in Mapp v. Ohio was so successful that the country no longer needed the exclusionary rule.

The reason for the success of the exclusionary rule was simple: Accountability.

Once again, the U.S. Supreme Court is in a position to have a profound and dramatic impact on policing by striking down qualified immunity.

The Supreme Court established qualified immunity as a judicial doctrine that shields the police and other state officials from liability for misconduct. The Court ruled a state actor would be immune from liability if, at the time of the harm, the conduct “was not clearly established” as a civil rights violation.

This country’s primary federal civil rights statute can be found in Title 42 of the U.S. Code. “Section 1983”—as it is commonly referred to—provides that any police officer who violates a person’s constitutional rights “shall be liable” to the party injured.

Demonstrating “clearly established” conduct has proven difficult for plaintiffs. For a claimant to prevail in the face of a qualified immunity defense she would have to show that the harm inflicted was established as a civil rights violation in a prior case with identical facts.

It is not unusual for a court to tell a plaintiff that her civil rights were violated but there is no similar case on point. So you lose.

The high court is currently considering, for formal review, a number of cases that deal with qualified immunity.

Financial liability for wrongdoing is accountability. This is where litigators and lawyers come in.

If the court scraps the judicially created protections for over-the-top, inappropriate and often violent, conduct by police, then policing will improve.

Over the years, litigation has improved standards in the medical profession; has held tobacco companies accountable for killing people; has made automobiles safer; and protected people from the harms of defective products.

Policing the police is a by-product of the bright light of an open courtroom, zealous litigants, and a citizen jury sifting through the facts of a case and holding, when appropriate, bad actors accountable.

Matthew T. Mangino is Of Counsel to Luxenberg, Garbett, Kelly & George in New Castle, Pa. His work appears occasionally on the Capital-Star’s Commentary Page. Readers may follow him on Twitter @MatthewTMangino. This column first appeared on The Crime Report, and is republished with permission.