“Taken together, these rulings have a powerful effect. They mean that the officer who shot Michael Brown and the City of Ferguson will most likely never be held accountable in court. How many more deaths and how many more riots will it take before the Supreme Court changes course?”
—Erwin Chemerinsky, Dean of the School of Law at the University of California, Irvine, in an op-ed in the Sunday New York Times titled, “How the Supreme Court Protects Bad Cops.”
The passengers on board the relentless Ferguson Ethics Train Wreck were recently honored by the addition to their number of distinguished legal scholar and law school dean Erwin Chemerinsky, who, it mist be said, apparently accepted his ticket in exchange for getting publicity in the Times for his new book,“The Case Against the Supreme Court.” If his op-ed is typical of his approach to that topic, I think I’ll pass.
Each of the three sentences in the quote above is ethically offensive, and, I think, well beneath what the public should be able to expect from the dean of a major laws school, and what the Times should tolerate from one.
Let’s take the last two first:
2. “They mean that the officer who shot Michael Brown and the City of Ferguson will most likely never be held accountable in court. “ The statement assumes that Officer Wilson ought to be held accountable in court, which immediately aligns the dean with the lynch mob demanding “justice” before they have any idea what justice is in this case. Chemerinsky is a political liberal, as one would expect in his position at that institution, but he has an ethical obligation to use his knowledge, erudition, influence and reputation to clarify a difficult situation for the public, not make it worse. Nowhere is his op-ed does he allow for the possibility that Wilson might be innocent of wrong doing in Brown’s death. In my view, he, like Eric Holder and so many others, is now pandering to the anti-police, race-grievance Democratic base, also known as “California.” His opening paragraph is carefully crafted—Chemerinsky has published a lot of papers, treatises, law journal articles, opinion pieces and book—to make it clear that he thinks the officer should be indicted. He begins:
“Last week, a grand jury was convened in St. Louis County, Mo., to examine the evidence against the police officer who killed Michael Brown, an unarmed black teenager, and to determine if he should be indicted. Attorney General Eric H. Holder Jr. even showed up to announce a separate federal investigation, and to promise that justice would be done. But if the conclusion is that the officer, Darren Wilson, acted improperly, the ability to hold him or Ferguson, Mo., accountable will be severely restricted by none other than the United States Supreme Court.”
Like any trained brief writer, Chemerinsky uses the technique of the advocate to presuppose the correctness of his point of view by the way he frames the issue at the start. As has become the insidious practice of most of the news media reporting on the case, Brown is always an “unarmed black teenager.” There is no evidence whatsoever that Brown was shot because of his race. Nor was he merely an unarmed man, but an unarmed 300 pound man who was fully capable of doing harm to the officer without a weapon. Chemerinsky, if he is to be taken seriously as an analyst, should not be presuming guilt and misleading the layman reader by omitting relevant factors that might exonerate Wilson while including inflammatory facts that may be irrelevant to the case.
Then the dean gets really cute. He notes that Eric Holder has taken measures to see “that justice would be done, ” but suggests the conclusion that the officer, Darren Wilson, acted improperly, that is, if justice IS done through the grand jury indicting Wilson, justice may still be foiled. Again, we don’t know what justice is in this case, but Chemerinsky presumes that it can only mean one thing.
At the beginning and the end of his piece, Chemerinsky assumes the conclusion that Wilson has something to be held accountable for, which in his case would be some form of murder. Somewhere in his essay, he is obligated to note that at this point it is completely plausible that Wilson is innocent, and in which case his entire argument is moot. If Wilson is innocent, justice is served by his not being indicted, or being held accountable for anything, and the Supreme Court is irrelevant. Ah, but that will hurt book sales,,,
3. “How many more deaths and how many more riots will it take before the Supreme Court changes course?” The statement is irresponsible. Either it is unconscionably careless, or it is sinister. The dean appears to be suggesting the U,S. Supreme Court should be influenced by mob violence and riots, and also suggesting that rioting is may be justified. If that is not his intent, then he needs to employ a better editor. I personally think his meaning is intentional, and thus unethical in the extreme. Mamas, don’t let your babies grow up to study law at the School of Law at the University of California, Irvine.
Finally, let’s look at the first sentence of the quote, “Taken together, these rulings have a powerful effect.”
Chemerinsky examines several cases Supreme Court to make his point that the cards are stacked against efforts to hold Wilson accountable for the guilty act he is widely assumed to have engaged in. I agree with the dean on some decisions and disagree on others, but he employes logical shortcuts, ideological bias and debate sleight of hand to make his case seem stronger than it is.
At the outset, he uses the hoary device of making a dubious proposition seem reasonable by stating it as if every rational person agrees with him. I sure don’t agree, not with this:
The most recent court ruling that favored the police was Plumhoff v. Rickard, decided on May 27, which found that even egregious police conduct is not “excessive force” in violation of the Constitution. Police officers in West Memphis, Ark., pulled over a white Honda Accord because the car had only one operating headlight. Rather than comply with an officer’s request to get out of the car, the driver made the unfortunate decision to speed away. The police chased the car for more than five minutes, reaching speeds of over 100 miles per hour. Eventually, officers fired 15 shots into the car, killing both the driver and a passenger.
The Supreme Court reversed the decision of the Court of Appeals for the Sixth Circuit and ruled unanimously in favor of the police. Justice Samuel A. Alito Jr. said that the driver’s conduct posed a “grave public safety risk” and that the police were justified in shooting at the car to stop it. The court said it “stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.”
Notice how the dean describes this as egregious police behavior, as if there is no question that it was. He is presuming that a controversial law enforcement policy decision is obviously wrong: what does he know about field police work? Although advocates for criminal suspects managed to win the legal and public relations battle over whether police were justified in shooting fleeing suspects who refused to submit to an arrest—remember how, in “It’s a Wonderful Life,” Burt the cop fires at George Bailey, who at worst frightened a spinster version of Donna Reed and is running away? In the 1940s, there was overwhelming consensus that if you didn’t stop when a police officer told you to, you risked getting shot, and should-–firing to stop a driver from fleeing in a deadly weapon, a speeding car, is hardly the brutal act Chemerinsky supposes. He writes about the ruling..
This is deeply disturbing. The Supreme Court now has said that whenever there is a high-speed chase that could injure others — and that would seem to be true of virtually all high-speed chases — the police can shoot at the vehicle and keep shooting until the chase ends. Obvious alternatives could include shooting out the car’s tires, or even taking the license plate number and tracking the driver down later.
“Shooting out the tires?” I see nothing wrong with the law letting a citizen behind the wheel of a car know that if he is stopped by the police, fleeing the scene at high speed places him at risk of being shot and killed. Not allowing police to use deadly force will encourage flight, and the resulting deaths of innocent bystanders. Now, there is validity to the dean’s position as well, but Chemerinsky doesn’t make his case fairly or persuasively, except for those who are already biased against police officers and guns….and Officer Wilson.
Later, after accurately and correctly condemning the municipal immunity decision that allowed New Orleans to escape liability for having a lawless D.A, Harry Connick, Sr. (yes, the singer’s father) who essentially framed a man for a murder he didn’t commit, Chemerinsky argues..
“When there is not absolute immunity, police officers are still protected by “qualified immunity” when sued for monetary damages. The Supreme Court, in an opinion by Justice Antonin Scalia in 2011, ruled that a government officer can be held liable only if “every reasonable official” would have known that his conduct was unlawful. For example, the officer who shot Michael Brown can be held liable only if every reasonable officer would have known that the shooting constituted the use of excessive force and was not self-defense. The Supreme Court has used this doctrine in recent years to deny damages to an eighth-grade girl who was strip-searched by school officials on suspicion that she had prescription-strength ibuprofen. It has also used it to deny damages to a man who, under a material-witness warrant, was held in a maximum-security prison for 16 days and on supervised release for 14 months, even though the government had no intention of using him as a material witness or even probable cause to arrest him. In each instance, the court stressed that the government officer could not be held liable, even though the Constitution had clearly been violated.”
Yup, I don’t like the decision, or the doctrine, or the application of it to those cases. Nonetheless, if there were ever a situation in which the “every reasonable official” test is appropriate, Officer Wilson’s situation is it. In fact, I think in split second, life and death situations involving officers where they have to make an instant decision whether they are in peril, the stringent standard of reasonableness Chemerinsky favors will guarantee more dead cops, or more successful lawsuits against police for behaving reasonably under the threat of death or bodily harm. School officials dealing with an eight-year-old are not a fair comparison…obviously.
“Taken as a whole,” Erwin Chemerinsky’s analysis of the SCOTUS cases is sloppy and biased.
“Taken as a whole,” the whole quote, all three sentences of it, amounts to an unethical statement by a prominent legal scholar that simply helps speed the Ferguson Ethics Train Wreck down the track.
Source: New York Times