Constitutional Disregard

I've taken the title to this little blog from a phrase in the recent post of Prof. Marsha Griggs, calling us, all of us, to action and resolve to fight, work, and promote justice. Griggs, M., "Despicable Us," Law School Academic Support Blog (June 2, 2020).  As Prof. Griggs reminds, it's our oath, and in that oath, we say that we are committed to safeguard justice for all.  But what if there's little to safeguard?  What then?

The horrific brutal torture and killing of another innocent person just last week makes one wonder.  There have been so many others, not just in the U.S., but around the world.  What is it that leads so many to blindly look away, to not care or empathize, to sit on laurels when, frankly, the laurels are all dried up?

I'm tired of calls to come together and talk.  And, in light of the ongoing protests, it seems like I am not alone.  But as Prof. Griggs points out, most are silent.  

So often I'm that one - the silent one.  I'm not sure what I can do or say but I know that I hold a position of great responsibility, which obligates me to spring to action to make the world as right as it can possibly be.  That takes real work, not trite talk.  I'm worried that so few really want to do that work, that so few are really eager to change, that so few are so wedded to the present that there's little promise or hope for a brighter future. I'm worried that I'm one of those, waiting for others to right an upside down world.

I didn't know what else to do.  So I wrote letters.  First to the mayor of Minneapolis.  Then to the police chief.  Next to the mayor of Denver and the police chief of Denver.  Finally to my U.S. senators and local U.S. representative.  

Everyday counts because every person counts.  As I tried to explain to my students this summer, there are ways to move forward towards the pursuit of justice, right now.  

First, take a look at how many municipal ordinances and state laws provide for incarceration.  I think that many of those punishments are out-of-all proportion with the social harms for which criminal laws are supposed to countenance.  And, the lack of proportionality is, I think, a violation of constitutional due process because it burdens people for no reason at all.

Second, take a look at the details of what happened in Minneapolis.  A telephone call about a possible counterfeit $20 bill.  Two police show up to investigate. One draws a gun and orders Mr. Floyd out of the car.  $20 dollars.  What happened to the investigation?  It was like the police wanted to make an arrest.  The alleged crime being investigated, I think, was a specific intent crime, requiring proof of both the act of using counterfeit currency to purchase goods or services along with the mental state of intent to use counterfeit currency.  Under the due process requirement of the Constitution, that would seem to require a real investigation rather than drawing a weapon.  It sure seems like a violation just to walk up to a car and threaten someone's life with lethal force without at least asking any questions.  That's why I wrote to the city leaders and politicians admonishing them to reform criminal laws to require the issuance of citations rather than proceeding with arrests, which are by their nature acts of force and the escalation of force.  Better to proceed with deescalation, issue a citation after a thorough investigation, and then bring the issue in front of an independent magistrate. 

Third, I've read a lot of police reports.  They talk a lot about probable cause but in general have little facts to show for it.  And, because the Constitution requires both probable cause to issue a citation or to make an arrest, with reasonable trustworthy facts as support, its time to ensure that police reports, etc., list identifiable, particularized, concrete allegations of fact to support both the culpable criminal act of the crime alleged along with the culpable mental state.  In my opinion, that's a requirement of not just the Fourth Amendment but also the Due Process Clause to provide meaningful notice of the specific grounds for criminal charges.  What if police reports fail to identify such facts? It's defective and the citation, arrest, and/or indictment should be quashed, immediately.  And, the police authorities who harmed a person by failing to provide constitutional notice ought to be liable under civil rights laws for acting under the color of law without constitutional authority in explicit derogation of due process protections.  And prosecutors that pursue such defective charges ought to be held accountable by regulatory agencies, the public, and the legal system.

Fourth, according to news media, at least one of the police officers arrested and charged for the death of Mr. Floyd had previous disciplinary records, which, as far as I can tell, resulted in little action and were not available to the public at large.  When political leaders, as our representatives, appoint police officers, as our agents, and when the political leaders then arm those police officers with lethal force, the HR records of those officers should be available to us all.  Nothing should be secret; after all, the police are supposed to work for us.  But, I hesitate to add, police unions are mighty powerful.  Often times, it seems, more powerful than political leaders.  But if a union protects someone who is engaged in unlawful acts, then we should hold unions accountable too.

Perhaps my suggestions to politically powerful leaders won't make any difference.  So far I've not received any responses.  But I'm not giving up.  All of us only have one life to live.  It's up to us to choose to live it fully, wisely, and for others.   I fall short, so often, and all the time.  But with each day, we get a new opportunity.  The past need not hold us back, if only we have the courage to act.  After all, that's the constitutional duty that we've pledged ourselves to embrace on the behalf of others. To act justly on the behalf of others. (Scott Johns).

P.S. As a starting point, please take a look at Attorney General Ellison's statement and the criminal charges filed against the 4 Minneapolis police officers:

https://www.ag.state.mn.us/Office/Communications/2020/06/03_GeorgeFloyd.asp:

I quote in part the words of Attorney General Ellison from the news release:  "

"To the Floyd family, to our beloved community, and everyone that is watching, I say: George Floyd mattered. He was loved. His life was important. His life had value. We will seek justice for him and for you and we will find it. The very fact that we have filed these charges means that we believe in them. But what I do not believe is that one successful prosecution can rectify the hurt and loss that so many people feel. The solution to that pain will be in the slow and difficult work of constructing justice and fairness in our society.  

That work is the work of all of us. We don’t need to wait for the resolution of the investigation and prosecution of the George Floyd case. We need citizens, neighbors, leaders in government and faith communities, civil- and human- rights activists to begin rewriting the rules for a just society. We need new policy and legislation and ways of thinking at municipal, state, and federal levels. The world of arts and entertainment can use their cultural influence to help inspire the change we need. There is a role for all who dream of a justice we haven’t had yet.  

In the final analysis, a protest can shake the tree and make the fruit fall down. But after that fruit is in reach, collecting it and making the jam must follow. The demonstration is dramatic and necessary. But building just institutions is slower and more of a grind, and just as important. We need your energy there too. We need it now."