Lack of Accountability for Police Violence is Solvable

at the hands of police. They are killed disproportionately to their overall representation in the population. I'm thinking about, say, the shooting of Fialando Castile outside Minneapolis, Tamia Rice, you know, twelve year old boy who was shot and killed by an officer when playing in a park in Cleveland. How do we achieve racial justice while protecting public safety? Lawyer cheer Rog Baines believes the federal government has a key role to play. What exactly would you like to see

happen there? For Congress to lower the intent standard from willfulness to recklessness so that it would be a federal crime to recklessly deprive someone of their rights under color of law, you know, to recklessly use successive force. For all the Americans who died during police encounters, in less

than two percent of cases. Does an officer end up being charged with a crime when you were at DJ How many times that specific language of willful swart a possible prosecution of an officer you think you felt had done something wrong routinely that was the biggest barrier. It was always the central concern. Cheirog Baines, who's devoted his career to ending impunity for officers who commit crimes against citizens, thinks we can fix this. The problem of lack of

accountability for police violence is solvable. Cherick Baines is the director of Legal Strategies at Demos, a racial justice organization. Before that, he worked at the US Department of Justice, serving as senior consul to the head of the Civil Rights Division. That's the division that investigated Ferguson, Missouri, and sued the city for unconstitutional policing and court practices. Bains

co wrote the Ferguson report. Malcolm Gladwell spoke to bains about what needs to be done to solve the persistent problem of police impunity at the national level. Two critical components are lowering the intense standard for the federal government to prosecute active access of force criminally and using federal

consenticrees to address systemic misconduct. You've been working on this question of how to make police better for quite some time, right, Yes, Actually, it's been an issue that's been an issue that I've been distressed by and wanting to do something about since I was a young kid. Actually, the Rodney King case happened in the beating of Rodney King. That was nineteen

ninety one. I was ten years old. And there were a lot of high profile incidents in the nineteen nineties with Amdurdallo, Abner Louima, and many other high profile cases of police violence, police killings. So it's an issue I cared about as a high schooler for sure. I can remember that where were you in high school? Chelmsford High School. It's a small town in Massachusetts next to the city of Lowell, maybe about thirty thousand and thirty five thousand people.

It wasn't like you were, you know, living in la or living in the Bronx where Amidudillo was shot. It was you were. These were instance miles away that nonetheless caught your attention absolutely. I mean, these were national stories and you know, I was very interested in civil rights history, even civil rights law, thinking about the role of lawyers

in the civil rights movement. I think I maybe juxtaposed that history and the principles underlying that movement with what I was seeing play out in terms of police violence in the country at that time. And actually can remember an organization called the Stolen Lives Project that would collect information about the people who had been killed by police, disproportionately young black men. That is something that I recall, So it's something i've It's an issue I've been working

on for a long time. I ended up working on that some more in law school, focusing on it, and then, you know, my first job after clerking for a federal judge was to actually prosecute police misconduct cases, including police violence. How early on did you decide that you wanted to become a lawyer? Depressingly early on, actually, I think I thought in high school that had become a lawyer. What

did your family think of that decision? Well, I'm an Indian kid and the child of immigrants, and so I think a lot of people in that boat might relate. My mother really wanted me to be a doctor. So you know that a million other Indian children. Yeah, yeah, it's a it's a common refrain, and you are short of being a doctor. A lawyer was pretty good. So I mean, but you know, my family wasn't focused on

these issues. These weren't the issues that they confronted, and they cared about it in the sense that they are generally aware. My grandmother used to describe all this work as a community service or volunteer work, and I'd have to tell her, no, I actually get paid to do this job. Yes, what does being trained in the law mean for your perspective on these issues? So, for example, if I had a conversation with a psychologist about police violence or a sociologist, I can imagine the kinds of

things that would they would focus on. Fact, I've read books by sociologists on police violence. I'm just curious. Is there something distinctive about legal training that affects the way you interpret or make sense of this problem? Yeah? Well, these issues and if your interest is in accountability, then

we have certain mechanisms of accountability. You know. There are some that are less about the courts, you know, like internal discipline as at police departments, but a lot of them are criminal prosecutions, civil cases, and legal rules govern all of that. So I think the legal training is really important if you want to have a role in the courts or shaping policy of say the Justice Department or any state agency that has that kind of power.

It can have a negative impact too, I should say, I think, you know, the downside is that you start to think in overly legalistic terms. So you know, good example actually is where people will say the murder of X person who was killed by police, and the lawyer in me will sometimes think, well, was that actually a murderer? I mean, it might have been manslaughter, it might have been some other kind of offense. It's not technically murder, so I should watch my words. I don't think that's

particularly healthy. I think you can start to lose the forest for the trees and get disconnected from communities who are experiencing this and you know, the fundamental problem of police violence that needs to change. Yeah, I'm curious about so you go, Oh, you come out of law school, you clerk, and then did you join the Department of

Justice immediately thereafter? Yes, you emerge from this experience with some ideas about how we ought to deal with this problem of police violence, and I'd love to I love you to sort of go over what you think the most important of those are. Maybe start with this idea of police impunity, because that's something we've been hearing a lot about in the aftermath of George Floyd. You talk about what does that idea mean? Is it structured? Appropriate? Now?

Is can we is this one pathway to reform? I think criminal prosecution is a critical part of the response to acts of police violence, but I also don't think it's enough on its own to kind of change the system and to stop such actions from happening in the first place. But right now, it is a problem. Right there is a lack of accountability for police violence. And one part of solving that is to give federal prosecutors more tools so that they can actually prosecute these cases.

And there's a couple of pieces of that I can break down. Yeah, what do you mean by that? What are the tools? Well, the federal government has one statutory tool to prosecute police officers for excessive force. That is a Reconstruction era statute. We call them two forty two cases because this part of the US Code where this is found is eighteen US Code, section two forty two.

It's a reconstruction era statute that was passed as part of the Civil Rights Act of eighteen sixty six, and it says that, you know, it is a crime to willfully deprive someone of their rights under color of law. There's a lot of other words, but those are the words that matter. The color of law part is usually the easiest, although not always. It basically means that the target or the defendant, you know, the officer was using

and abusing authority given them by the government. So if they were in uniform, they committed violence in the course of an arrest. That sort of thing you've got under color of law. The deprivation of rights part be hard because this that gets to what is the content of your Fourth Amendment right to be free from unreasonable force, free from excessive force, And the courts have been very deferential to law enforcement officers, so that is a pretty

hard element. It's easy in a case where someone's in handcuffs and is being beaten, although not a luck because the officers could say the person was still resisting, still posed a threat, so it's it's often a fight. The intent element willfulness is a major problem that's the highest intent standard in federal law. It's pretty close to what's

required to prove premeditated first degree murder. Most people don't know what the word willfulness means when they're confronted with the word, and courts have struggled over it, but it essentially boils down to that the officer knew what they were doing was wrong and chose to do it anyway.

That can be really hard because there are many situations where an officer will say, well, I didn't have time to develop that intent, or actually had a different intent, which is to control the situation, not to violate someone's rights, especially in circumstances that unfold very quickly. Officers who engage in let's say, reckless behavior will escape liability under federal

criminal law because the intense standard is higher. And even officers who do engage in willful misconduct, you intentional, will holme, missconduct, can say they didn't and they've got a lot of legal arguments to make and factual arguments using that element. So you'd like to see what some you think would be might be useful to relax some of those standards, so to give prosecutors other avenues for pursuing these kinds

of cases, What exactly would you like to see happen there? Yeah, the key move that I'd like to see is for Congress to lower the intense standard from willfulness to recklessness, so that it would be a federal crime to recklessly deprive someone of their rights under color of law, you know,

to recklessly use successive force. So when I think about cases that we're not prosecutable at the federal level but certainly look like crimes, I'm thinking about, say, the shooting of Philando Castile outside Minneapolis four years ago, thinking about the case of Tamir Rice, you know, twelve year old boy who was shot and killed by an officer when

playing in a park in Cleveland. In those cases, the way they unfolded, the officer can say, first of all, got themselves into a difficult situation and didn't de escalate, rather escalated the situation and then was able to say I feared for my life, you know, I saw the toy gun that the twelve year old had, and I thought I was going to die, so I shot and

killed him, you know, within seconds of arriving. And those cases would be prosecutable if recklessness were the standard if the officer engaged in reckless behavior didn't take steps to take greater care. It actually is the law at the state level in most places that a reckless violation of that sort is prosecutable. So and they're even lower standards of intent negligence in some cases where these cases could be prosecuted by the state, but it's not permitted under

federal law. And that's a problem because there are advantages to prosecution. There's this unit that exists to prosecute these kind of cases, so they're repeat players. They developed deep expertise in how to build these cases and prove them at trial to reluctant juries. It also provides a measure of independence. Federal prosecutors don't work, at least in this office, don't work with local police on a repeat basis. You prosecuting street crime, local prosecutors do. So the federal government

offers a real solution in the sense of independence. That's a problem. I think that the public started paying a lot more attention to after Ferguson, But it's only a real solution if they have the ability to bring cases, and right now they don't have the statuary tool they need. How many times that specific language of willful when you were at DJ did that thwart a possible prosecution of an officer you felt had done something wrong. Routinely that

was the biggest barrier to prosecuting cases. It was always the central concern. You know, the concerns are, was this unreasonable conduct and thus violation of someone's Fourth Amendment rights? And that's a tough one, as I mentioned, but it's always was it a willful And often the answer was like, look, it's going to be a challenge to prove this was unreasonable, but I think we could do it. I don't think we're gonna be able to prove beyond a reasonable doubt

that this conduct was willful. Yeah, And so it was the biggest obstacle to accountability and it was routinely present, always thought about in cases. You were part of a number of very high profile cases, including Ferguson. And Ferguson was a fascinating example of what you're talking about, because the police officer did not end up being inducted by the Department of Justice, but you did launch a pattern or practice investigation of the Ferguson Department, and that is

the one that resulted in something happened. So what is a pattern of practice investigation? A pattern of practice investigation is a dj investigation into a whole police department or some subset of the police department. Perhaps that is looking at whether they're systemic misconduct. So it's a way to yet not at just individual accountability, you know, which which where people can say, well, that was just one bad officer, one bad apple, but actually the fact that there's something

wrong in this police department. There's a pattern repetition of constitutional violations, and there are broken systems that allow them to proliferate. You know, you need a whole team of people who will go down to the jurisdiction and look through all the paperwork they can from the police department, meet with as many police officers and command staff as

they can, meet with community members, hold community forums. You know, in Ferguson, I read every arrest report, every use of force report, and every complaint that they had in a five year period. And that was challenging. It would have been impossible in a bigger department. And you know, Ferguson had fifty five police officers, but other departments, you know, have hundreds or thousands. And this is a really important

part of DJ's power, and it's relatively new. It was in the early nineties when this passed as a re action to the Rodney King beating and the riots that followed the acquittal of the four officers on state charges. The events that happened there were a wake up call for legislators that this wasn't about just Rodney King. It wasn't just about those four officers who assaulted him. It was about years and years of degradation and violence and

misconduct within LAPD. Congress realized they needed to do something here. At the same time that these events were becoming clear, it was also clear that there were a lot of barriers in the law to individuals bringing civil suit. Barriers that have to do the standing, that is, who can get to court in the first place, Barriers that have

to do with proving of violation. And so what Congress did is they created a new authority for DJ to investigate law enforcement agencies where there's a pattern or practice of conduct that violates law. And DJ started doing the cases in the beginning in the late nineties. So how many pattern and practice investors were you a part of it? DOJ? We did Ferguson, Chicago, Baltimore, and we had continuing consent decrees in many places Seattle, New Orleans. There was also

work in new work. You know, during the Obama administration, twenty five investigations of police departments were opened. Yeah, so this was a priority. It was a priority for the Obama Justice Department. In the three and a half years that Trump has been president, the Justice Department has done one investigation. So they also put in place certain memos that just make it very hard to bring these cases. And there's been a chilling effect as well, even though

it's formerly on the books. I think attorneys at the career level are not bringing these cases and pushing them up to the political leadership because they know they're not welcome. Yeah. So what happens, so I'm I'm for the town of Ferguson. DOJ returns a report which says that there was a pattern of practice of unlawful conduct. So what happened next? Well, you know, you specify what that pattern or practice is,

and it's usually constitutional violations. It's important to say that we found a pattern of First Amendment violations, of excessive force, of racial discrimination, and violation of the fourteenth Amendment. You know, you put it out there, make the findings public, and then there's you know, begin a process of negotiation and consultation to see if this is a case that will

resolve short of litigation. And so, you know, in Ferguson, for example, what we do is we made the report public and we very quickly after that, we're in Ferguson meeting with officials in the town and for the police

department and also with the community. You know, we held a community forum where we explained our findings, took questions, and actually broke up into small groups that are hundreds of people who attended, and in these small groups, we took ideas for what reforms did people want to see

in a reform agreement. And it's just hours and hours of negotiation between DJ, the attorneys and other staff and the DJ team and city council members or whoever it is that's coming to the table from the city where the police department is, and the goal is to get to an agreement that becomes what's called a consent decree, which is it's an agreement that becomes an order of the court and it's more powerful in specific ways than a private out of court agreement, and there are various

ways in which the community can impact that even though the community is not technically a party to the lawsuit that will be filed in what community do you think this process worked best? Is there a shining example of patterns and practices really turning around a troubled police department. You know, one place where I think there has been some success is Seattle. It's again not a complete success,

but there are some good indicators. So the Department of Justice entered a consent decree with Seattle in twenty twelve, and if you look at the numbers comparing twenty eleven, the year before the consent decree to twenty nineteen, in a most recent year where we have full data, serious use of force declined sixty in that period. Yeah. Yeah, So it's had an impact, and they're still working on

some things, but it has had some success. And I think there are other departments that look very different today than they did before. New Orleans is another one that comes to mind, where there were just repeat acts of violence and murder in that department and other systemic problems, and that department looks a lot different today. Again, it's not the model, and they're not free from excessive force

or discrimination. But it looks a lot different today. Would you if you had to choose, hypothetically someone said to you, you can only do one. You can either change the willful standard or you can have patterns of practice investigations. Pick which one would you choose? Okay? Well, I was trying to avoid having to identify one thing because because it's the nature, even these two things aren't enough to

transform policing. But between those two, I, although I spent more of my time doing the criminal prosecutions, I would say emphasized reforms on the pattern or practice side. I think there are things we could do differently even from how we did them at the Justice Department when I was there, And it's one of the few tools that exist to try to change a department overall, as opposed

to just take out a few bad officers. You know, right now, the rallying cry in many of the protests, among many of those post George Floyd, has been about defunding the police or these kinds of terms are being thrown around. What's your reaction to that line of proposed reform.

So there's this way in which police have both underserved and you know, over policed communities, underserved in the sense that you know, in many communities they don't come when you call nine one, or they haven't solved murders and rapes and other serious crimes where the police are the ones who are you know, people turn to you for

that kind of service, and yet they're present. They're arresting people for order violations, you know, focusing on turnstile jumping in New York or the Ferguson example would be you know, ticketing people and arresting them for failing to show up for warrants on faire to keep their law and in order. So all of this kind of order policing that police have engaged and that doesn't really get to public safety.

So I think that's where this is going. And you know, we should invest in forms of public safety that we believe in, that we believe are equitable and that are real, and that will really change our communities. That's what I make of it. I think this is a local, locally driven thing, and we should welcome this conversation and really step into it. And people should be lobbying their city council and their mayor for what's in the police budget.

I asked you before to choose between two important mechanisms for dealing with police violence. Now I want to ask you the opposite question. I've made you CSAR, and I've given you back patterns and practices. I've allowed you to change the willful language. Give me two other things that would that you would do tomorrow if you could, that you think would help us confront this issue of police violence. One thing I would do is invest in non police

responses to social crises and emergencies. So here I'm thinking about there are a lot of situations where someone's having a mental health crisis, or you know, there's an argument and it's not actually posing a public safety risk. You know, where you need somebody who has a badge and a gun to respond, But you do want somebody who's trained, maybe in substance abuse treatment, maybe in mental health awareness, to respond. We don't have that. We don't have that

in America. There's only one service that answers the phone and will come to your house twenty four to seven. That is the police. And they're primarily trained in firearms usage and what they call defensive tactics using force. So I would like to see an investment in alternative forms of public safety to respond to those kinds of needs. They're sort of like a unarmed first responder service where you could call maybe it's still nine one, and they

dispatch sends someone else, maybe it's another phone number. I think that would be really interesting and would actually serve police in the way that a lot of officers have told me they spent a lot of time responding to calls that you know, aren't why they went into the police academy and that they're not trained for. So I think that would be a helpful solution. Another thing that needs to change is we need to end qualified immunity.

That's a judge made doctrine that's about forty years old where you can't sue, We can't even sue a police officer for violating your rights if the court deems those

rights to not having been clearly established. And what that ends up meeting in the way the law works is if there wasn't another case that was decided and that you can find an opinion on where the court has said that a certain kind of conduct was unconstitutional, then you're not going to be able to sue if it happened to you, and that's nowhere in the statute under

which these cases are brought. It has no relationship to what you know, the original intent of the of the statutes or of the Constitution, and it's a major frustration for accountability. It shields law enforcement in cases where they should be liable. I'd like to see that ended as well. We've been talking a lot about ways in which we can make police behavior more acceptable and legitimate in the eyes of the population. But let me ask the questions

of the other way. What are the ways in which we can make these kinds of reforms acceptable to the police. The first question is what reform is necessary to really protect constitutional rights and ensure equity, and so I start from that point. But let me take the question on its terms. You know, how do you make the case to police officers? I think that's about showing that these systems are currently designed for them to fail in their job.

What would a different world look like, one in which police weren't sent to calls that they're not equipped to respond to, one in which you know, they focused more of their time on violent crimes as opposed to order violations or engagements that have nothing to do with the law at all, you know, also just understanding some of the specific challenges they experience and building that into the agenda.

Some of the challenges I heard about from police officers when I was involved in the Ferguson investigation or in some of my criminal cases, were that, you know, they didn't have the support of their leadership. Their leadership was focusing on a certain kind of enforcement that made it hard for them to have legitimacy in the community. Ferguson

was a great example of this. You know, it wasn't the decision of the line officers to use the police power and the courts to generate revenue for the town. It was the decision of the mayor, the city council. The finance director actually played a very significant role. And so the officers were saying, this wasn't on me, Why am I getting flak for it? And I think these pattern or practice cases allow you to zoom out from the individual officer and say, yeah, this actually isn't on

the individual officer. These are larger decisions about structures that have been made way above their pay grade, and that's where accountability should lie. And then there are other things where there's actually not enough investment in officer wellness. The suicide rate is high for officers. These are things that we also need to address and I think should be part of the conversation. We love to end these conversations with telling listeners what are the sources of things they

can do? You know, how can they participate meaningfully in this reform effort. Yeah, I think there's a lot that can be done right now. I mean, being part of the movement for police reform is critical. So right now there's the unique opportunity of protests happening all over the country every single day. I actually think that that drives most of the change that we're talking about right now.

Congress wouldn't have a bill that's pending right now to change the intense standard as we've been discussing on the criminal statute, or to end qualified immunity if it weren't for these protests and the black latter organizing we're seeing. So I would say, join a protest and then ask

for specific changes in your community as well. Check out the statutes, look at the police policies, See what kind of agreements are in the collective bargaining agreement between the city and the police union, and if any of those pieces frustrate accountability and make it hard to investigate a case, make it hard to reduce police violence, take those things to the city council and demand change. When you think about this from your perspective, are you optimistic right now?

Are you pessimistic? I'm optimistic. I'm an optimistic person. And some might say that we haven't seen enough change in policing to be optimistic, but I think this moment is very different. It's different even from the moment of activity and collective reckoning that we had around Ferguson. I think there is a danger that it doesn't turn into enough

substance of change. You know, when you've got Amazon and all these corporations emblazoning their web pages and their materials with Black Lives Matter, but continue to prop up the system of that we are trying to change, I think there's a danger of appearing to do something and not doing something. So I'm really interested in what's going to change in Congress. Are we going to make statutory changes? Are we going to make changes at the local level

with regard to budgets and priorities. But I am optimistic because I haven't seen this level of engagement, including cross racial and intergenerational engagement, certainly while I've been alive. That with Solvable's Malcolm Gladwell speaking with lawyer and justice advocate Cheer Rag Bains. Next week, Solvable is kicking off a short series about the twenty twenty election. Solvable is brought

to you by Pushkin Industries. Remember to check out our show notes for links to the suggestions our guests make for ways that you can get involved. Solvable is produced by Camille Baptista, Jocelyn Frank, and Catherine Girardo. Mia Lobell is our executive producer. Special thanks to our social media with Eric Sandler. We'll be back next week with another episode of Solvable. Please join us