Wednesday, August 21, 2019

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Vernellia Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

Abstract

Excerpted from: Lupe S. Salinas, Lawless Cops, Latino Injustice, and Revictimization by the Justice System, 2018 Michigan State Law Review 1095 (2018) (801 Footnotes) (Full Document)

Lupe SalinasIn these introductory comments, I present observations and realities of the American political, racial, and social foundation as it relates to police-community experiences, as well as the need for all Americans, regardless of race, culture, and socioracial and socioeconomic background, to know and understand each other better. Notwithstanding our diversity, as a united people we have to speak and think as the one, independent nation that the Founding Fathers imagined. This must occur despite the truths and realities that have resulted from their imperfect union, which was tainted by racial discrimination and slavery.

As a Latino civil rights advocate and scholar, I never imagined citing Glenn Beck in support of truth and reconciliation with regard to volatile racial concerns facing our nation. Beck, whose notoriety developed as a controversial right-wing commentator, recently confessed that the United States is a divided nation, or as he stated, "vastly two different countries." As Beck conceded, his comments about a divided nation arose from the increase in gun violence. His observations about a national divide similarly apply to the immunity that juries and the justice system appear to grant police when they resort excessively to their firearms in shootings of unarmed persons. Shortly thereafter, former Secretary of State Condoleezza Rice also mentioned "a country divided"; except she expressly referred to the "ever widening gap between rich and poor" that causes the American Dream to appear far out of reach for many.

A third subject simultaneously enters the national debate, and this topic focuses on the need to develop measures that will improve the accountability of police officers with regard to the wanton use of excessive force against unarmed persons. In March 2018, the Michigan State Law Review hosted a symposium entitled "Is It Time for Truth & Reconciliation in Post-Ferguson/Post-Charlottesville America?" The conference panelists addressed police-community relations issues in the minority communities primarily and disproportionately affected: African Americans, Latino Americans, and Native Americans. These three truth and reconciliation topics could keep the United States occupied for decades, but hopefully we can find a common thread by which our national leaders can guide our nation toward developing a solution.

Insofar as the issues related to injustice are concerned, I urge the inclusion of all recognizable ethnic and racial groups in the discussion related to truth and reconciliation. In that regard, the Michigan State Law Review conference organizers admirably presented panels and speakers that included our nation's diversity. As a scholar in the field of Mexican-American and other Latino civil rights issues, my goal is to address the efforts in police and community relations from the Latino perspective. The history and personal characteristics within the Latino population dictates this approach.

African Americans, Mexican Americans and other Latinos, Native Americans, Asian Americans, and other ethnic minorities bring uniquely distinct backgrounds to the table, but one common denominator involves the social and, at times, de jure victimization by the majority Caucasian population at one time or another in our history in America. This Article is not written with the intent to stir up a racial diatribe. Instead, I urge open discussion as a means for all Americans to better understand each other. In this fashion, we Americans can really attain the status of the nation that has been respected around the world for all the wonderful characteristics of freedom, moral principles, and qualities such as liberty, decency, integrity, conscience.

The desire to attain truth and reconciliation has lingered for decades. This desired goal has festered, and eventually, like a volcano, could erupt with the mounting pressure. The Black Lives Matter efforts, the volatile gun control issues, and the unauthorized entries of Central Americans and others to seek asylum agitate this nation's political conservatives. Without a doubt, those who seek a fair and equitable solution to the uncontrolled use of deadly force in police-civilian encounters will confront resistance. The public at large instinctively supports police. In regard to all these issues, the courts, the prosecuting authorities, and legislators take a conservative approach, especially if these officials face an election.

Prosecutors regularly hear and observe distortions of the truth in regard to lives that are lost unnecessarily in confrontations between law enforcement officers and persons from all backgrounds, particularly as they relate to victims of color. As a former criminal civil rights prosecutor with the Department of Justice (DOJ), I realize that white officers also make deceptive claims in killings of Caucasian individuals with the hope that a grand jury will conclude that it was a so-called "righteous" or justifiable shooting.

My thesis conveys the message that United States Latinos are members of the "persons of color" category. Many of my light-complexioned Latino paisanos may not agree with me on this, but if they wanted to consider themselves publicly as white or especially "Caucasian," they would have to contend with society's perception of a Latino's social status. The white status recognition that emerged in a late nineteenth century naturalization case provided a foundation for the contention that Mexican Latinos were members of the white race. But that is as far as the idea of white privilege for Mexican Latinos progressed for more than half a century.

This Article, to a significant extent, centers on issues that include America's racial divide and police misconduct combined with the lack of accountability. It is a delicate issue that has to be addressed honestly. Admittedly, referring to lawless cops raises concerns that I lack respect for the difficult and dangerous work in which police officers engage. On the contrary, I am quite respectful of those officers who, on behalf of the public, face dangerous circumstances on a daily basis.

As a former elected state criminal court judge, I faced criticism from police organizations for my previous work as a civil rights prosecutor. My success in uncovering a conspiracy by Houston police officers led to their convictions for perjury and conspiracy to obstruct justice, an appointment as Special Assistant to the United States Attorney General in Washington D.C., and a movie production detailing my successful discovery of a planted firearm used to justify a police shooting. Objectively, any lawyer would and should be proud of these results. However, when I listed the Webster throwdown conspiracy to obstruct justice victory in my biographical details, the Houston police union's political action committee complained about the reference to the misconduct case by lawless cops and endorsed my opponent. I lost my reelection, but I know I did the right thing.

I know I did the right thing because I took an oath to uphold the law and the Constitution. Thus, when I investigated the Randy Webster shooting and discovered evidence of civil rights violations, perjury, and conspiracy to obstruct justice, what was I to do? The officers were convicted, and the federal judge granted them probation. They enjoyed their rights to due process of law while Webster did not. He was punished at the scene of his arrest, and other officers, along with the shooter, agreed to plant a throwdown.

After Webster exited the van, Dolan, another officer on the scene, never saw a gun in either of Webster's raised hands when he submitted to the arrest. Dolan provided highly incriminating information against the shooter, Officer Mays. Keep in mind that in a police department, subordinate patrol officers work their way up to the ranks of Detective, Sergeant, Lieutenant, and then Captain. Dolan had to encounter Sgt. Dillon and Lt. Eikenhorst, two men quite familiar with the custom known as the Code of Silence. Fortunately, in all three statements he provided, Dolan remained firmly consistent. Notwithstanding the corroboration of Dolan's testimony by both the physical evidence and the medical examiner, the federal judge issued a sentencing memorandum in which he criticized Dolan's credibility. With all due respect, instead of federal judges who degrade witnesses to a horrible crime, we need more courageous people like Dolan to put their fears aside and step forward.

My thesis focuses on a small percentage of police public servants who disregard their oath to protect the public and then join the rank and file of lawless cops. Once an officer reaches a point where he or she begins to hate the job or constantly criticizes the justice system that lets "criminals" go free, then it is time to seek counseling or to move on to another career. Otherwise, that frustrated, disgruntled person could become a lawless cop.

I admire those cops who serve the public; they are servants who deserve our full support. It was an honor to serve with many great cops as a state and federal prosecutor, especially those who courageously testified honestly, even if it meant their chief of police or their supervisor would probably be found guilty of a criminal violation. I particularly admire a sergeant I called at his home when I was a felony state prosecutor. When I expressed to him my difficulty in understanding his basis of finding probable cause to conduct a search, he honestly shared with me that he had acted on a mere hunch because he knew the accused from a prior heroin arrest, and he assumed the man, having returned to the "free world," also returned to his addictive habits.

Other exemplary cops from my days in 1975 as a felony state prosecutor include Houston Officer Jim Kilty, a dedicated Narcotics Division police officer, and his partner J.J. Reyes. Kilty approached me in court one day to seek the dismissal of drug charges after he discovered exculpatory evidence. That conduct is exemplary of the oath to uphold justice. Shortly thereafter, during a drug bust, Officer J.J. Reyes was shot through the neck. Miraculously, the bullet did not cause much damage and Reyes was admirably back on the job the following week. Unfortunately, for law enforcement and for me as an admirer of an outstanding police officer, Officer Kilty was killed by a drug dealer during a subsequent raid. When the Houston police department began a recruitment campaign, billboards and bumper stickers displayed an image of Kilty's badge number 1856. For me, this served as a constant reminder of a great officer who exemplified the slogan "The Badge Means You Care."

I enjoy having a reputation as a person who seeks equality, or at least equity, where parity is politically incorrect. I admit that I am not shy about criticizing "my President," whether or not it is the person for whom I voted. As a former jurist, I ran as a Democrat in the Texas partisan elections not only due to gratitude for my governor but also because of my social values and beliefs. This does not restrict me in my praise for Republican presidents who display the courage to do the right thing for the nation, such as Dwight D. Eisenhower, who established the United States Commission on Civil Rights, and George H. W. Bush, the epitome of honesty and character.

The current executive branch of government, under the leadership of President Donald J. Trump, controls the policy decisions involving the rights of people and has made a number of decisions based on traditionally suspect classifications. In addition, disparate racial statistics permeate the nation's indicators of not only success but also failure. Whites have the highest annual income average, exceeding that of Latinos and African Americans--the two largest minority groups in the nation. On the other hand, Latinos and African Americans suffer higher unemployment and incarceration rates than persons of the Caucasian race.

Another significant area in which America's racial divide exists involves police-civilian fatal confrontations. Governor Huckabee of Arkansas asserted that police kill more whites than other groups. To some extent he is right, but the reality is that a greater proportional percentage of blacks and other minorities are killed in police-civilian confrontations.

According to a Washington Post study, the United States has nearly 160 million more white people than black people, comprising roughly 62% of the United States population, but only 49% of those killed by police. On the other hand, African Americans, who account for 24% of police fatalities, represent only 13% of the United States population. As The Post noted, that means black Americans are 2.5 times more likely than white Americans to be shot and killed by police officers.

What worries Latino and African-American communities is the appearance that officers "shoot first and ask questions later," meaning that many react more apprehensively when dealing with a black or Latino person. Although the Black Lives Matter movement recently gained both renewed popularity and notoriety, the historical fact is that African Americans, Native Americans, and Latinos, primarily those of Mexican descent, have suffered disproportionate violence at the hands of law enforcement since time immemorial.

The reflexive reaction to the Black Lives Matter activities that arose after the 2014 killing of unarmed Michael Brown in Ferguson, Missouri included outwardly mocking claims that White Lives Matter and Police Lives Matter! Objectively speaking, ALL Lives Matter! No one should die for merely being Black, White, Brown, Red, Yellow, Multicolored, or Blue! Yet, we should take a look at the factual realities of the use of force across the ethnic and racial spectrum.

Based on my forty years of working in areas that address police-community relations, I felt concerns that the absence of accountability could lead to retaliation against innocent persons. This uneasiness became reality when five Dallas police officers died during a retaliatory "payback," as the Dallas police chief described the massacre. A heavily armed sniper, an African-American war veteran, "specifically set out to kill as many white officers as he could."

In a democracy, as we enjoy in the United States, we at times learn the "truth" regarding our respective attitudes. Our experiences shape these views, both good and bad. We learn that people of all ethnic backgrounds cannot completely overcome their affinity to their cultural, political, and psychological past. All distinct races, nationalities, and religious groups that comprise the United States--and that includes whites--eventually have to engage in educational sessions to familiarize themselves with their neighbors.

As a nation, we continue to resist the recognition of our constitutionally based institutional racism. While these foundations and practices have been deleted by constitutional amendments, the passage of time has not led to a complete and genuine healing or reconciliation. People who adhere to the Biblical message of doing unto others as you would have them do unto you summarize this maxim by just deciding to "Do the right thing!"

However, when attitudes and social indicators continue to divide us along racial and socioeconomic lines, a more coordinated effort towards reconciliation is required. During World War II, minorities, primarily blacks and Latinos, believed that joining the military would show Caucasians that nonwhites earned their "stripes," thus entitling nonwhites to respect and genuine equal opportunity. Much to their chagrin, they found the white leadership at the local level had not changed at all.

Realistically, vestiges of historical, unconstitutional practices cannot be fully eliminated until all Americans come to the table and speak honestly about the truth and seek a reconciliation that leads to mutual respect among all Americans--persons who comprise diverse racial and ethnic groups, skin colors, cultures, religions, and political thoughts. It is time that we become that "One Nation" we praise in our Pledge of Allegiance.

"To escape from any dire situation requires that you accept two truths: the truth of how you got there and the truth of how you can get out." The United States continually suffers through a democratic crisis in which legislators base their governmental decisions on the selfish political grounds of staying in office. Regardless of the group in power, neither Republicans nor Democrats want to lose. As a result, many tough decisions were made in Congress, such as neglecting a vote on acceptance of a residency policy for the Deferred Action for Childhood Arrivals (DACA) children of migrants--referred to popularly as Dreamers--while the two major parties jockey for political gain. No one wins outright, but the public suffers.

In Part I, I present the perceptions and the truths of the American political, racial, and social foundation as it relates to police-community experiences and the need for all Americans, regardless of race, culture, and socioeconomic background, to know and understand each other better, in all respects.

In Part II, I provide an overview of the United States Latino socioracial experience and how it relates to social relations in general and police-community relations in particular.

Part III looks at the ugly history of lawless cops and Latino victimization at both the federal and state levels.

Part IV then reviews the unfortunate revictimization by the very system that is supposed to provide protections from abuse.

Part V generally addresses the lack of accountability within the criminal justice system as it relates to minority rights in general and Latino rights in particular. I mention a few thoughts as to recommendations for a more accountable system of justice. A more thorough evaluation will have to be left for those experts that have the ability to reach the political policymakers and leaders in the law enforcement community.

Part VI concludes with a "good ole peptalk," one that seeks to encourage our uniquely diverse nation to commit to a more positive trust in one another. Our continued wellbeing as a strong nation calls for a coming together so that we can identify, locate, and remove pre-1860s American political thought in the Smithsonian Institution's National Museum of American History.

[. . .]

Overall, as a nation, the United States has been a model for integrity in most of its governmental standards. We serve on juries and we vote secretly and, in a general sense, without barriers being imposed. Hopefully, the future will grant more freedoms. Police brutality and deception have created problems for our government. However, a greater problem has occurred from the inaction at the hands of police chiefs, prosecutors, both state and federal, and other authorities who are in position to deter lawless cops from errant behavior.

While the prospect to address police misconduct has always existed, the opportunity to discuss it seriously has become more difficult under President Trump's leadership. The President's comments to police officers that they do not have to treat "criminals" so tenderly can only incite and encourage those officers who are already potential wrongdoers. Those inclined to be lawless cops do not need that top-level encouragement. If anything will stop a crooked and brutal cop, it is peer-group pressure as well as strong leadership at the top. Police have to work together to avoid the dangers that led to the retaliation the nation and the world witnessed in Dallas, Texas after a military veteran sniper killed five Dallas police officers.

To prevent these extremes, our legal system needs to show both law enforcement and the public that those who do not respect law and order will be held accountable. This remedial action includes the swift prosecution of those who threaten and harm police officers and other public servants as well as the suspension, termination, and prosecution of those public officials and police officers who violate their oath of office and the law. Above all, the true American way is for all of us to know about each other and to set the stage for productive discussions. As stated by Kevin Baker, an American novelist and journalist: Reconciliation is only possible when [public servants, from the top to the bottom,] start telling the truth. And while reconciliation is not complete justice--justice demanding, as it does, accountability and at least compensation [for losses]--makes it possible to move forward. This is serious business. Done right, it would establish the real narrative of the moral twilight we are moving through now, alter political behavior for the better, and revive enough faith in this country's ability to govern itself for democracy to prevail. It may even restore truth itself.

Making America great again should never mean a return to the Black Codes and the "lynching" mentality that includes unjustifiable and excessive shooting, choking, and tasing. This illegality disrespects the constitutional protection of due process and the dignity of women and men. Of course, we need the leadership itself to serve as an example for others. We do not need to treat unauthorized immigrants with disparagement or refer to immigrants as "animals," rapists, or persons who "infest" our nation. Americans are a better people than that, and we should not tolerate politicians who disgrace the United States by engaging in gutter politics. In closing, imagine that nation that motivated the Founding Fathers "to form a more perfect Union, establish Justice, [and] insure domestic Tranquility." Perhaps, in an earlier time, those founders also had the spirit and inspiration of another immigrant to America, John Lennon, who wanted a more peaceful world for all by preaching through his music: "You may say that I'm a dreamer. But I'm not the only one. I hope someday you'll join us. And the world will be as one."

Finally, the question arises as to whether the problem centers on the nation's immigration enforcement and border patrol police. In an Op-Ed in the Los Angeles Times, John Carlos Frey, a documentary filmmaker, deduced that insufficient training and little public oversight of the Border Patrol have led to problems, including violence against migrants. Frey took notice of the Bush Administration's 2007 efforts to strengthen border security. Eventually, this led to doubling the size of the Border Patrol, an agency of the Department of Homeland Security (DHS). Because recruits were difficult to find, the DHS lowered its standards and relaxed training regimens. Individuals without a high school diploma could already join, and the DHS also began to defer background checks. In less than two years DHS hired 8,000 new agents. The Border Patrol, which had a force of 11,000 in 2007, had more than 21,000 agents by 2012. Frey figured that nearly half of the Border Patrol force now includes rookies with two years of experience or less who are dangerously armed with batons, pepper spray, Tasers, rifles, and handguns.

DHS maintains secrecy about when and why police agents can fire a weapon. With insufficient training and little public oversight, it is not surprising that since May 2010 there have been at least eight documented cases of extreme use of force against unarmed and noncombative migrants resulting in death. Of eight recent killings by Border Patrol agents, not even one agent has been disciplined. As long as this indifference to accountability continues, the message is that any person who throws a rock from across the border is subject to execution.

In summary, American history has seen repeated examples of racist-type reactions from European whites against immigrants that differed from them either racially, ethnically, or culturally. Much of this conflict centered on an early American indoctrination and belief in the superiority of the Caucasian race. The racial conflicts against blacks, Mexicans, Native Americans, and Asians developed over the belief that the "colored" races were inherently inferior. Even when a Mexican appeared "white," as in the case of a blue-eyed, white-skinned person, those in positions of power continued to classify that white Latino as unworthy of full equality.

Even after Macario Garcia, a Mexican national, risked his life for the United States, received serious injuries while fighting as an Army soldier, and earned the highest recognition a soldier can achieve for his service from President Truman, he still did not qualify socially to be respected by a Caucasian restaurant owner who refused to serve him a cup of coffee. One month after Garcia received his Congressional Medal of Honor, he was still a unique military hero. But to the white restaurant owner, nothing had changed--Garcia was still just a "Mexican."

I continue to view issues related to racial justice optimistically, but I am concerned about what can happen with the guidance our current Commander-in-Chief is providing. For example, a 2018 Quinnipiac poll question asked: "Do you think President Trump has emboldened people who hold racist beliefs to express those beliefs publicly or don't you think so?" As a group, "55% of respondents said 'yes."' The tension in race relations has reached the level that a journalist, a member of the profession that the President constantly attacks as America's enemy, expresses concern that the people of this nation have lost the distinction between "'straight talk' and hate talk."

Almost seventy-five years after the overtly racist days of 1945, with a leader who tweets his thoughts on race and police relations and his views on diplomacy, we Americans have reason to be concerned. During our 240-year history, the United States has endured moments of social and racial hatred and has overcome them. The KKK existed, spewed hatred, murdered innocent people, went into seclusion, reorganized. Now this group, and organizations with similar extremist beliefs, recently received encouragement from many places of power, including the White House. Police departments today could have, but many in the past definitely had, extremists and KKK sympathizers on the force.

As I stated in a law journal a decade ago, we Americans, as a people, have to be concerned about electing officials who have private racist attitudes, get into public office, and manage to convert these thoughts into public policy. In agreement with the editorial journalistic comments, I urge that we Americans do our utmost to have the difficult conversations about race issues and seek solutions to our differences. Let us return to that united melting pot that made America not only great but also distinguished and remarkable around the globe. We were there, and we should not let the recent emergence of xenophobic politics begin to erode that awesome quality that the United States of America has enjoyed--albeit with some struggles--for half a century since Congress enacted the Civil Rights Act of 1964 and other legislation aimed at mutual respect among all Americans.


Lupe S. Salinas, a Retired Criminal Court Judge in Houston, Texas and a former federal prosecutor in the Southern District of Texas, serves as Professor of Law at Texas Southern University, Thurgood Marshall School of Law, where he teaches civil rights, criminal procedure, and a seminar entitled Latinos and the Law.

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