November 2, 2021
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Defunding the Police

by Jonathan Wallace

I have been a litigator for forty years, and have conducted about two hundred trials and hearings, and can bear witness to the fact that very few of them ever have a "television" quality. It is extremely rare for a trial to involve the kind of massive Reveal, the unexpected evidence leading to the Plot Twist that ends the television trial.

An exception was a trial in Manhattan criminal court in which I played a very modest role as "fourth chair", not even sitting at counsel table. We were defending a woman who had been arrested at an early Black Lives Matter demonstration outside a Manhattan precinct. The witnesses for the prosecution were a pair of young, charismatic Strategic Response Group officers, a man and woman in their late twenties. Truth be told, I especially found the woman cop fascinating. There was a time in my twenties when I was kind of cop-curious, but did not move in circles where I ever met a woman in uniform I could ask out.

Her testimony, which her charisma put across as credible, was that she and her partner were arresting another activist for disorderly conduct when our client, the defendant, intervened to try to stop the arrest,screaming, blocking them, and even laying hands on her, giving the cop and her partner no choice but to arrest her. I watched her in action and knew that if I was a judge or juror, I would absolutely believe her: she was intelligent, attractive, gave every sign of believing her own words, made good eye contact, answered questions well. She betrayed none of the anxiety or hesitation of a lying witness, none of the body language of nervous hands or evasive eyes.

Yet every word was false. I knew this because of the Television Twist: we had a videotape of our client's arrest that the cops did not know existed. What had really happened was that the client was minding her own business in the demonstration when a police captain, a "white shirt", ran out from the sidewalk, grabbed her and put her under arrest for no obvious reason. He then handed her off to the two SRG officers. They had dutifully lied for him to keep his role secret; he had not wanted to testify, to justify targeting her. In their version, he did not exist.

There is a rule that, if you are going to use video, you must turn it over to the prosecution first (they have the same duty to you). There is a very narrow exception, when you use it to impeach a witness. It was a daring maneuver on our part, not to plan to use the video as part of our defense, and disclose it, but to assume the cops would lie, and that the judge would then let us show it. It might have backfired; the judge in allowing the video told us we had barely squeaked by. I think in the end it was his own indignation at the profundity of the lying which motivated him to accept the video in evidence.

The judge in fact was so indignant that he referred the two officers to Internal Affairs for investigation. I never heard that anything came of that. NYPD rewards loyal lying-- and in fact regards productive lying (which gets convictions) as loyal. In the 1980's and 1990's, Detective Louis Scarcella in Brooklyn framed dozens of innocent defendants, with tactics so threadbare they included using a crack prostitute to testify falsely that she had coincidentally been at the scene of many killings, and writing phony confessions for five defendants which started with the same language, "You got it right", and/or "I was there". Wikipedia says: "Despite recent public scrutiny in light of Scarcella's misconduct, he remains well decorated. Notable recognitions include the Chief of Detectives' Award for Outstanding Police Investigation.... In a display of support, the Retired Detectives of New York honored Scarcella in October 2017", a defiant gesture deliberately performed well after all of Scarcella's convictions had started to unravel.

Knowing what I knew about the officer lying to protect her captain, I could not help looking for some psychological answers. Her energetic, confident lies delivered with good eye contact suggested that she was enjoying herself, that the rules of her game involved delivering a particularly persuasive performance to protect her captain, and that she took pride in the job. You could imagine many other demeanors for a cop lying on the stand, including a detached, low energy appearance for a cop who was lying because it was part of the job she didn't particularly enjoy.

I have personally been lied about by a police officer. When I was sixteen, in 1971, I walked through Prospect Park in Brooklyn handing out leaflets that said that the Panther 21 had been falsely accused (they were acquitted in May). A cop warned me that a permit was necessary to hand out leaflets in the park (an antediluvian ordinance the First Amendment would not tolerate today). As I started to walk out, a man seated on the lawn asked me for a leaflet, and I handed it to him. The cop seemed to spring from a bush; he wrote me a summons for leafleting without a permit, which had a possible two week jail term on Rikers associated with it (as almost all violations do). In court, the cop testified that he had seen me hand out another ten or fifteen leaflets after the warning. It was a gratuitous lie: he had me dead to rights already on the one leaflet I had given the seated man. It seemed an instance of lying-as-usual, by a member of a culture of lies.

Incidentally, the fact that the two officers worked for SRG is part of another interesting and relevant Narrative. When I started acting as a Legal Observer at demonstrations in 2012, wearing a bright green hat issued by National Lawyers Guild, most demonstrations I attended were policed by a casual, friendly unit called Community Affairs. Within a year or two, they were replaced at demonstrations by the much more heavily armed and armored Strategic Response Group, which had been formed to fight terrorism. Since a large subset of the demos I monitored consisted mainly of elderly female activists, Catholic Worker types, it was highly incongruous to see them being vigilantly watched by cops carrying very large automatic weapons. It seems very possible to me that assigning SRG to peaceful demonstrations by every leftist group, including fragile old people, was a political move intended to justify the ballooning military budget by keeping SRG busy when there was so little terrorism to respond to. A precedent for this would be the Fire Department wrenching EMS away from Health and Hospitals, so that ambulance runs could be added to fire runs to avoid Fire Department budget cuts.

I have written extensively about the police violence I personally have witnessed spanning almost fifty years in New York. In 1971, I watched police riot and beat people bloody outside the Fillmore East. Until 2017 or so, when I stopped Legal Observing demonstrations in New York City, I witnessed numerous incidents, usually provoked by a white shirt, in which cops arrested and beat people who were doing absolutely nothing violent or threatening: crossing a street on a green light, walking peacefully on a sidewalk along the East River. A common theme in many, not all, of these actions was that the victims of police violence were wearing bandannas, and thus believed by the cops to belong to a group they particularly hated called the "Black Bloc", although in many of the cases I personally witnessed, the bandannas were not even black and did not cover their faces.

I have been struck by NYPD officers on at least two occasions (I have the sense there was a third time, but I can't remember). On November 15, 2011, standing peacefully on a sidewalk observing the police blocking access to Zuccotti Park as they began the eviction, I witnessed a police riot, in which the line of officers charged the crowd on the sidewalk without any provocation. A riot officer hit me three times with his shield, hard enough my glasses flew away and shattered. I was arrested and spent the night in the lock up under Police Plaza. My charges were dismissed for lack of evidence many months later, because, you know, I hadn't actually been doing anything, other than standing on a sidewalk, looking at police. That night, one out of four of the men in the 80-person cell had been hit by police-- and many had cuts and bruises to prove it. There was one young man in the cell who had a huge contusion on his forehead and was slipping in and out of consciousness. We kept shouting for the cops to call an ambulance for him, but they did not care. I am proud of what I did then: I used the expensive pay phone in the cell to call my wife and ask her to call 911 and ask for an ambulance to Police Plaza-- I knew once the request was recorded, FDNY would have to send an ambulance or have some 'splaining to do. EMTs arrived fifteen minutes later to take the victim to the hospital.

The last time an officer hit me was several years later. I was Legal Observing a May Day demonstration near Union SQuare where once again, the cops were rioting, beating and arresting many young people. A young woman who had been handcuffed with zip ties was seated on the pavement fifteen feet away and I shouted for her name--a large part of the LO role is to get names so that NLG can track them through the system and show up for arraignments. A cop hit me in the chest with his open hand, causing me to stagger back a few feet, shouting at me I was interfering with an arrest. I am not proud of the fact that that was almost my last LO gig-- I have been out a few times, mainly in the Hamptons where I live, to really quiet demonstrations. I was done with watching police violence, and being hit myself. I had become much more active defending demonstrators in their criminal cases, and decided that going forward, that would be my role.

An anecdote I have also told before: In those years, I lived in Astoria. One night at 1:30 a.m. or so, there was a shouting confrontation on 23rd Avenue below my window, outside a bar on the corner, between two football-player sized men and a tiny woman trying to get into her car. I went outside holding up my cell phone so the men could see it, as I called 911. This was only a medium-brave action for New York City: I was on my stoop and could retreat back through the door if they came toward me. A Greek neighbor whom I knew slightly came out of her house next door; she had also called 911. Astoria was a very mysterious place in the five years that I lived there; there was always a sense (as in every New York neighborhood, maybe a little more heightened) that there was mysterious machinery in operation, which no resident would ever explain to an outsider like me. Under the stress of the moment's emotion, the neighbor blurted something she would ordinarily not say: "The cops won't come. The bar pays the precinct." And she was absolutely right: the incident ended of itself, the men returned to the bar, the woman left, and no cops came. I can only surmise what happened behind the scenes: I hope that, rather than leaving the woman to her fate, bribed cops called the bartender, who told them the situation had resolved, and then probably filed a false report that they had rolled over, and visualized and cleared the scene. A few years later, a prosecution of a bribed Astoria officer made the news.

During the five years I myself worked on ambulances, I witnessed police officers beating people in the Bronx without provocation, at least two of them already handcuffed. Most of my ambulance partners were African Americans, and I welcomed the opportunity to speak frankly with them, across many hours on quiet nights, about their lives and experiences; the New York City I had grown up in was highly segregated, as it still is today. One thing almost every African American EMT ould tell you about was being randomly stopped and frisked by NYPD in their own neighborhoods. One of my best partners, because he was my own age, had been harassed by cops while wearing his EMS uniform. I too have had this experience, when I was sixteen and had long hair: a young cop stopped me on Avenue M when I was walking home and ordered me to empty my pockets. I was aware of what were known back then as the "dropsy" cases: If they found a joint on you during an illegal search, they would lie under oath that they had seen it drop from your pocket as you walked down the street.

I don't remember when I heard a New York truism that I have repeated many times since: NYPD is the largest, most dangerous street gang in the city. I believe that. NYPD is a terrible culture, of lies and violence. And instead of being servants of a democracy, NYPD is an independent monster, not really under any external control. NYPD was already dangerous before the post-9/11 flow of money and military surplus to create unnecessary paramilitary forces like SRG. To minorities, NYPD is not there to protect them. but a colonialist occupying force. Stop and frisk, and the impunity with which Scarcella framed people, proved that. Politicians and judges are afraid of NYPD; nobody wants to be stigmatized like Judge "Cut 'Em Loose" Bruce was; most people in the New York power-hierarchy go along with NYPD to get along. I will also never forget that Rudy Giuliani's career began with an incendiary campaign speech in September 1992 from the steps of City Hall to inebriated, off duty officers which resulted in them stopping traffic on the Brooklyn Bridge and beating motorists. NYPD riots, a lot.

I am white (or "putatively white" as I prefer to say) and middle class. I have personally experienced police lying and violence because I stepped outside the mainstream in two ways: as a hippie in the 1970's; as a NLG legal observer in the 2000's. I believe, but cannot say for sure, that substantial portions of the city's white middle class who have never been hit by a cop-- but the ones who themselves (or their children) do not join the police-- are perfectly aware that NYPD are not saints and heroes protecting them, but chaotic, violent people capable of anything. I suspect in most neighborhoods, white people who do not fear being stopped and frisked, are still aware how carefully you must manage the police, as they can blow at any time.

All of this has come to a head in recent years with the advent of Black Lives Matter. The nonstop murder of unarmed black people by police officers, often after bullshit traffic stops for broken headlights and the like, is an unending American shame and a revelation, that not much has changed since Southern cops clubbed protesters, or turned a blind eye to their murder by KKK, in the 1960's. It has all boiled down to a ferocious battle by the American power-hierarchy to protect the right of police officers everywhere to exert a sort of tax on the conquered, of hundreds of dead bodies of people who reached for a wallet, or who didn't understand an order, or were panicked because they did not know the armed plainclothes people were cops-- or who (in the case I find most painfully Iconic) was simply walking to the cash register in a department store carrying an air gun sold in the store they wanted to purchase. In my work across eleven years on the 12,000 page history of free speech I call the Mad Manuscript, I have become aware of a particularly interesting Trope, the "Useable Past". I do not believe, it is heartbreaking to say, that our country has a Useable Present.

Think also of the successful demonization by the right of a truly unobjectionable phrase, "Black Lives Matter". Every kind of cheap Sophistical Trick has been used to counter what should have been obvious to every American with a heart or who, lacking one, has seriously listened to the language of the Fourteenth Amendment. In a time when there are so many indications that we have lost sight of any basic democratic values or even any sense we all belong together in a country, police killing of civilians for Driving (or even Walking) while Black is not simply a Glitch or random side-story but raises the question, the existential battle in fact: What kind of country is this? Who do we want to be?

Here is the PunchLine. Deploying SRG with massive automatic weapons to police frail eighty year old women costs money. Couldn't it be far better spent? Why do we need to arm police nationwide with military ordinance, armored personnel carriers, and the like? Couldn't that money be repurposed, to schools, measures to fight poverty or build community? While "defunding the police", if experienced branding people had been involved in selecting the phrase, was admittedly a provocative brand, why wouldn't a democracy cut a police budget from time to time and transfer the money to other needs? Also, if I was a fifty year old African American used to being stopped and frisked even when wearing my EMS uniform, I would seriously be thinking, the police are not in my community for me; they endanger me; we could do better taking care of ourselves, monitoring our own streets, than having NYPD here as an occupying force.