The appointment of hundreds of federal judges and three U.S. Supreme Court justices by President Trump could provide an apparent layer of protection for police officers charged with misconduct, even in cases where defendants have been shot or otherwise injured or killed in police custody.
That's the view of long-time civil rights attorney Howard Friedman, based in Boston, MA, who has spent his career representing defendants in cases alleging police misconduct, police brutality, false arrest, wrongful conviction, inhumane treatment of prisoners, and the right to record police officers.
As of December 1, the United States Senate has confirmed 229 federal judges nominated by Trump, including the three associate justices of the Supreme Court, 53 judges for the United States courts of appeals, and 170 judges for the United States district courts.
All of that, said Friedman in an interview with Not Fake News, means that clients charging police misconduct will likely have a more difficult time when appearing before those judges, all conservative politically, and all serving lifetime appointments.
Will that give at least some police officers license to use unnecessary violence or deadly force against suspects? Has Donald Trump's tough guy, law and order rhetoric encouraged such actions?
As of November 24, 864 civilians had been fatally shot by police in 2020, with 192 of them being Black. Last year, 235 Blacks were shot dead by police.
"When I first started doing civil rights law, if a police officer shot someone they needed to find a weapon," said Friedman. "Officers actually would have a throw-away gun; they'd keep it on their ankle. Now they don't need the throw-away gun. Those are gone. All they need to say is 'I thought he had a weapon. He turned and was menacing.' I think we're training officers that the most important thing is to protect themselves rather than to protect the public. They are being taught 'shoot first, ask questions later'. And you may know the phrase that they often use, 'I'd rather be judged by 12 than carried by six.' They carry that to extremes; they're basically going to use force, in my view, too soon."
All too often, said Friedman, the courts will say, "That was a justified shooting."
With nearly 200 Blacks being shot dead by police so far this year and 235 last year, racism often is an important factor, Friedman noted. "Police officers who are White may feel just automatically that someone who is Black or not White is more of a threat."
It's no wonder, he acknowledged, that young Black men, in particular, are fearful even of being pulled over for a traffic stop, afraid that the crime of driving while Black could lead to violence, even death.
"It shouldn't be the way it is, but it certainly is," said Friedman. "There's no way to describe it other than racism. That is what happens. There's no doubt about that."
Racism mixed with fear can be a deadly component when police officers are patrolling minority neighborhoods, he explained. "White officers, even minority officers in most departments are pressured to go along with the club, which is usually the majority of White officers. So that can affect how minority officers behave."
Most cases that Friedman handles involve excessive force where a suspect says or does something that the officer perceives as questioning their authority.
"It's contempt of cop," he said. "You've done something that upsets them and they have the power to hurt you."
Packing the Court
Trump's addition of so many conservative federal judges and the now 6-3 conservative majority on the Supreme Court will have a lasting impact on police misconduct litigation, Friedman predicted.
"It's going to make it much harder for plaintiffs to win," he said, noting that the high court, significantly, has not addressed the qualified immunity standard that can protect police in such cases.
"What should happen, hopefully, people will turn to their state constitution, their state civil rights laws and perhaps their state supreme courts," rather than seeking redress in federal courts.
"For most of my career, over 40 years, we've looked to the federal courts for relief. It looks like that's not going to be the next 40 years. People will be trying to avoid the Supreme Court," he said.
Police reform legislation is needed in the states, according to Friedman, including provisions to certify or accredit police officers and provide that police officers found to be in violation could lose their license to serve.
Defunding the Police
While the campaign rhetoric of Republicans charging Democrats with wanting to "defund the police" helped some win their elections, Friedman pointed out that what really is involved is a drive to "reimagine" police operations.
"As time has gone on, a lot of society's problems have been put on the police," he explained, adding that in Massachusetts, mental institutions have closed leaving it up to police to deal with mentally ill individuals.
"That's not really their job; they're not trained to do that," he said, "and most police officers would rather not be doing that."
Police officers should not be posted in schools, he contended. "They see what kids do...as crimes. So you've got kids who are 10 years-old in handcuffs because they were disruptive in the classroom. That's another place where we really don't need police officers."
He suggested that instead of police officers giving out traffic tickets and directing traffic, "other lower priced people" could be used for those duties, freeing up the police to fight crime.
Friedman is former president and is now a board member of the National Police Accountability Project, which, he said, is composed of 600 lawyers.
"We try to educate the public about issues of police accountability," he explained. "We work on things like how can we control the police, better civil rights laws, public records laws, and to share information with people in other states. The lawyers who defend these cases are part of national groups and they have plans as to how they are going to expand qualified immunity. We try to do the opposite. We try to make change and improve the way these cases work."
"When the President of the United States says to officers 'Don't be gentle with them when you're arresting them, maybe their head on the top of the police car,' it's sending an awful message," Friedman said.
"Of course, he would say that's a joke. That's not a joke that a president, or a mayor, or a police chief, or anyone should make. So there's much more of a sense, at least with that president, that anything will go."
The killing of George Floyd by a Minneapolis, MN police officer has precipitated changes, at least to some degree, said Friedman. "The public is fed up right now and there is more public support for police reform. People are seeing the lack of accountability."
Now, with Joe Biden having defeated Trump and ready to take office on January 20, Friedman is looking for a reduction in the rhetoric that has seemingly encouraged some actions of police misconduct.
"There won't be the constant drumbeat of bang their heads and that's OK, this sort of glorifying violence, but changing police behavior is going to be a long process," he said. "Police officers hope that they can wait it out, that the public will go on to another issue and they can go on the way they have.
"I assume that under President Biden the Justice Department will once again investigate police departments and bring...cases to get them to change their policies," he added.
"One of the things about police," said Friedman, "is you've got to keep on them because they're going to be pushing to go back to the bad old ways. And unless somebody is watching, slowly, slowly the reforms will melt away."