Sisters-In-Law: The Podcast | Episode 4: How Do We Repent?
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Welcome to Sisters-in-Law, the podcast, episode four. How does a nation repent? Repent from what? Repent from racism, from segregation, from police brutality, and a whole myriad of sins, but mostly racism. We're the Sisters-in-Law, real sisters, real lawyers, and we give really good talk. Today, we're talking about

George Floyd and not just George Floyd, although that is a lot to talk about. Breonna Taylor, Ahmaud Arbery. The list is so long we could not name them all and still do a podcast. But the question is, how do we turn around as a nation and do something different? You know, repent means to turn.

to stop doing wrong and start doing right. And we want to talk about how does the nation repent? Janice, I know you've been talking a lot and thinking a lot and writing a lot about what we should do as a nation to ameliorate some of the terrible problems of racism. Really, it's a product of racism. So what's on your list? Well,

legislation that was introduced by the Congressional Black Caucus this week. It's called the Justice in Policing Act. While not an omnibus bill, it covers a lot of territory. It covers topics like qualified immunity, subpoena power, chokeholds, independent prosecutions,

Many of the issues that have surfaced over the past, not just this year, but over the past several decades, as it becomes clearer and clearer that African-Americans suffer more from excessive use of force at the hands of police than any other group of people in the United States. Coming on top of the pandemic, on top of the Ahmaud Arbery situation in South Georgia,

The health disparities that are so terrible that come about from the pandemic, along with all of the economic dislocation, there have been now three weeks of mass protests and demonstrations in the streets of the United States. So I don't know whether the nation is ready to repent, but certainly it is paying attention.

So you see this bill from the Congressional Black Caucus led by Kamala Harris and Senator Booker, the only two blacks who are Democrats in the Senate. And of course, Tim Scott from South Carolina is writing his own bill on behalf of the GOP. That in itself is remarkable that he would have the authorization and the assignment to come up with a response to

what looks like lawlessness among some police officers. I guess the question we have to ask ourselves is, are we repenting on behalf of the system? Are we repenting on behalf of those so-called few bad apples?

Well, that's a great question. The reason I keep thinking about the word repent is because I see a change in white people primarily, not just the fact that so many white people are out in the street protesting, although that is very significant.

But the nature of their protests, for example, in Cary, North Carolina, which is a suburb of Raleigh, North Carolina, the police and some Black clergy held a foot washing ceremony, which I found to be not only odd, but quite remarkable. I don't know whether the repentance, the acknowledgement that Black people have been done wrong ever since they've been on this continent

is necessary. I know it can't be legislated, but I wonder, do we have to have a spirit of repentance? And when I say we, I'm talking about the American people.

Do American white people have to have a spirit of repentance to be able to even think about these reforms that are being proposed? Because reforms have been proposed for decades, as you mentioned. They never could get them passed. As a matter of fact, last week, the Senate couldn't pass an anti-lynching bill.

It seems a hundred years ago now, but anti-lynching is also a part of the legislation that Tim Scott, it puzzles me. My eyes are rolling all the way back in my head to think about it. Tim Scott is proposing and also part of the proposal from the Congressional Black Caucus. And Jan, I think there's another bill too, sponsored by Sheila Jackson Lee, but all of them are going to the same point.

we've got to make some changes. And I think there has been a change in the heart of some hearts and some minds. I hope it's enough to get this legislation passed. Well, I don't want to be a cynic, but whether their hearts and minds have changed or not, their political circumstances are changing. When they see young white folk walking arm in arm with young black folk demanding change,

That is a powerful signal that if you don't change, your days in American politics may be numbered. And while I'm sure there are lots of people who feel that they didn't know, they didn't understand, they didn't fully grasp the impact of this harsh policing on communities of color, because after all, it has been justified for decades, they get arrested more because they

More crime is committed in their neighborhoods. But I was part of a seminar last night with a gentleman named Howard Ross, and he talked about the fact that if you find what you are looking for, and if you go into communities of color with superior force, more numbers of police, harsher attitudes, leaning on people, being oppressive,

then you're going to find more crime because you're spending more time looking for it. And to some extent, crime is in the eye of the beholder. I think about Eric Garner selling Lucy cigarettes. Is that punishment? Is that a crime worthy of the punishment of death? No, of course not. Neither is counterfeiting. If George Floyd had, let's assume for the sake of argument that he did have counterfeit bills,

It's the tactics that the police use and the seeming inability to control their emotions, the seeming unwillingness to deescalate. So bottom line is the political realities, I suspect as much as the change of heart that's motivating some legislators and mayors and city council people to consider changes in the way we police. But if you notice, none of these bills, unless I've overlooked it,

impose any duty on the prosecutors to be fair on duties of prosecutors or any mechanisms to control excessive tactics by prosecutors or judges. The police in some sense are merely the security guards for the system. Yes, they have badges and guns, but the rules under which they operate like qualified immunity are set by legislatures and the courts.

And so far, we're not seeing, at least from my perspective, any significant change other than we got to get these people to stay at home and stop protesting so we can go home and campaign. If you're a member of Congress and all members of Congress are up for reelection, it'll be hard to campaign in your district if people are marching in the streets of your district.

Well, that's true. I wonder though, Jan, you talked about prosecutors. The only thing that I could see in the Black Caucus Justice and Policing Act that's directed toward prosecutors is they're, they say they're going to incentivize a state's attorney, attorneys general to conduct pattern and practice investigations of local police and give them grants to establish structures. So,

to deal with violence of police. Well, that means to me they're going to give attorneys general money and they're going to be

able to use it to conduct studies. Well, that might be a good thing. And they're going to give them money to create structures to investigate. That doesn't mean they're going to investigate. That means that there will be money to do that. And let's back up if I could interrupt for just a second. They're not going to be in pattern of practice doesn't mean that they're going to be investigating themselves. The patterns and practices they're looking for are patterns and practices of

use of force among police officers. Right. That doesn't go to their prosecutorial decisions. That doesn't, I mean, look at the way Ellison charged those cops in Minnesota, in Minneapolis. The first prosecutor charged with the lowest kind of common denominator. What was it? Murder three? Yes. It doesn't require intent

And then Ellison, who we assume is sort of sympathetic to this issue, came back and charged murder two. But he still didn't charge murder one, which would have been the most severe charge that was available under the facts that are presented.

And so I guess I'm just skeptical about the ability of these institutions to correct themselves. Yes, prosecutors may be able to correct police practices, but what are they going to do when they withhold exculpatory evidence from the defense or when they use all their strikes to take everybody black off the jury? Patterns of practice investigations, the way they are currently structured, won't do a whole lot to address that issue, those issues.

Well, I didn't see anything to address how prosecutors prosecute these cases. Now, it may be there, but I have not seen it. And, you know, something I've been saying for a very long time, that prosecutorial discretion is very, very great.

Prosecutors decide who to prosecute and how to prosecute and what charges they should have. And when I say they, I mean defendants. And that is a huge power. It's a power that's kind of insurmountable unless there's some limitation to it. And in the bill that's being proposed by the Congressional Black Caucus, I agree with you. I didn't see any of that.

Yeah, now there is, and I want to be fair to everybody because let me be clear. I hope the Justice and Policing Act passes the House and the Senate. But when you look at where these issues, we talk about systemic racism, institutional racism. When a judge has a pattern or practice of giving more time if you go to trial than if you take the plea,

Because there is a certain element of punishment for wasting the state's time with the trial. We haven't even begun to scratch the surface. And what about the legislatures that give states the power to do kinds of things that they do? We've got a long way to go, but it is a good first stop. I do think that something is changing. It reminds me of when the nation started turning left.

away from homophobia toward equal rights for people who are gay, lesbian, bi, trans. It feels like that kind of fundamental change, but it goes all the way up the system. Prosecutors have, like you say, a lot of authority and a lot of power. Now, one thing that is in the bill, they talk about doing away with qualified immunity.

Yeah, that's what I want to get to. Let's break down qualified immunity. You've talked about it before and in your op-ed that you published last week, you talked about qualified immunity and you've spoken about it before. Let's just backtrack and say, what is qualified immunity? Qualified immunity is a defense. When a police officer is charged with a crime, and let's say the crime is homicide against somebody they were attempting to arrest,

That person dies. The family goes to court and seeks police to seek the warrant to have them arrested. We watched it play out with George Floyd's family. They were fierce advocates for prosecution, not only of the shooter, but for the other three officers that were involved. When they go to trial, no doubt they will raise the defense of qualified immunity, which means, in my view,

it was subjectively reasonable for me to do what I did. I was afraid that George Floyd was going to hurt me. I was afraid that he would injure someone else. And so my use of deadly force against him was reasonable under the circumstances. This law proposes to change that standard from what did you reasonably think to was it necessary?

Yeah, that's a very big change because every officer pretty much judges for himself the way laws are written now. Did I think it was reasonable? Did I do what I thought was necessary to protect myself? Not necessary, a reason. Did I have a reason? If I can articulate a reason, you invoke sovereign immunity. Then it's up to the person who is the prosecutor who is prosecuting the police

to rebut that presumption. It's a very strong defense

It goes all the way back to, I guess, the common law of England. The king can do no wrong. Well, we know the king can do wrong. And it's the reasonable standard that they always say, oh, I was in fear for my life. I was in fear for my life. He was going to hurt me. They were going to grab my gun. He was reaching. Not that he had my gun or not that he was close enough to me to get my gun.

But that he was he looked like he was moving to him. He looked like he was going in his waistband for a weapon. Turned out it was the keys to his house. But I didn't have any reason to know that. It changes the burden of proof for police officers who seek to assert immunity. Immunity. Yeah, that's a big deal. Now, that is a and I don't know if it will get as much play, but that is a huge issue.

reason why we see, I think, so much violence among some police officers because they know that qualified immunity is there. And matter of fact, in some training sessions sponsored by their unions, there is evidence that they teach them how to set up a defense of qualified immunity. Say he was reaching for my taser. This is what you need to say. You know, there was a case, was it in Chicago?

where several officers surrounded a suspect and shot him 22 times and on their way back to the station house say, this is a cluster, cluster blank. We're going to have to come up with a story. Well, this law would make it harder for them to come up with a story. Yeah. And so now it's not each and every officer who can just say, I thought he was reaching for my gun or I thought he was going to hurt me. I was in fear for my life.

They have to show that it was necessary. That even if he was reaching for my gun, was there a more reasonable way? Could I have gone back in my squad car so that my gun, could I have had my weapon holstered in such a way that it couldn't come out of my holster?

Well, later on, I want to go through these things that are in some of the major things that are in this. Because there's a lot in there. There's a lot in there. But later on, I want to talk about alternatives to using your weapon because some local police departments have utilized other training and other methods than using their guns. They've been trained in how to defuse situations. Now, that's not in this bill, but it is something that is possible.

I want to go now, Janice, to something that you talk about. You've been talking about it for years, talking about law enforcement agencies collecting data on how, when, and upon whom they use deadly force.

and reporting it to the Justice Department. Now, the Justice Department, as it stands now, it wouldn't do much good, but hopefully we'll have a real Justice Department real soon. And this data will give us evidence as to how, when, and whom they use deadly force on, and also data on traffic stops.

I think that's a huge deal, too. Well, that is important because when you see these patterns, then you know that it's not the bad apple, but that the bad apple has started to ruin the whole barrel. And so that's what a pattern of practice. And right now, President Obama instituted a number of pattern and practice investigations out of the Justice Department in Baltimore, in what was the city in Missouri, in Ferguson,

and in Chicago. But when the new administration came in, the Trump administration took a different view and they ended and shelved those pattern of practice investigations. The benefit of those is they give us data, but they also give us the basis for going to court and saying, look, we have a plan to reduce these inequities, judge. Will you sign off on it? That becomes a consent order that is legally enforceable.

There again is another tool for systemic wide-ranging reform.

Yeah, I don't have any hope that it would help this administration because, you know, they have undone the consent orders that were done in the Obama administration. But hopefully we will have another administration and they will be able to follow this if it if it passes. I believe it will. Something else I wanted to talk about. You talked about subpoenas, subpoena power.

Oh, National Police Misconduct Registry. Yes. Now that is important because here again, the officer involved in the Minneapolis shooting of George Floyd, the murder of George Floyd, had a long history of infractions. They first said 12 and then it turned into 18 complaints, but he was never disciplined for any of them.

I don't know whether this National Police Misconduct Registry, which is proposed in the Justice and Policing Act, would address complaints that did not result in some type of discipline, but it should. Because the sheer number of complaints means something. It does mean something. Now, there may be some due process issues involved in reporting complaints that were not substantiated.

And I need to look at the statute more closely. But it is true that if you have an officer who has lots of complaints, he shouldn't be able to go next door and get a job as a police officer. Now, in some situations, they are routinely invited to go to other jurisdictions when they get in trouble. And I suspect that the union helps them find alternative employment still in the field of policing.

Yeah, it has. Well, it's a common practice that if you get in trouble in one department, you can just go to another because there's nothing to stop you. And that does not seem to be a lot of background check. Now, one thing I have not seen in this bill is extension of background checks or national standards for background checks for policing throughout the country so that people

They will have to do a certain type of background check before they hire a police officer. Well, you know, I heard one interesting idea, and it is that police officers should have to be licensed and insured. Like, lawyers don't have to be insured, but they have to be licensed. Many professions have to be licensed. But if they had to be licensed and insured, to some extent, the market would take bad officers out of the system because you keep getting complaints, whether they're substantiated or not, you end up being uninsurable.

And that would have some reigning in effect on police officers who tend to go renegade. I wanted to say one thing about subpoena power. The subpoena power in this bill, this Justice in Policing Act,

is to give subpoena power to the Attorney General of the United States to request information, documents, records, the data that they're collecting, and it requires an annual report to the Justice Department. But what it does in this environment that we're in right now, and hopefully we won't stay in this environment much longer, but given the current Attorney General, subpoena power wouldn't do much good because I doubt he would use it.

Right. But why not give subpoena power to state attorneys general who have concurrent jurisdiction to investigate? And often if they can't get the information they need voluntarily from a municipality or county, then they could subpoena themselves if they are of a mind to do so. I mentioned this in a meeting that I was in with Senator Kamala Harris, a telephone call.

And she said she agreed and that she was actually working on something that would give not only the federal attorney general, the United States Attorney General subpoena power, but give it also to people like Keith Ellison so that those state officials who are investigating deaths at the hand of local police officers would have an additional tool to use. And that's important.

And Jan, I'm not sure that they don't already have subpoena power. I don't know that there's any rule against a state attorney general subpoenaing a local police department or sheriff's office. Do you? I don't know of any.

And I know that they routinely conduct investigations and they require officers, even up to chiefs of departments, to testify or be deposed. And I don't know any way they could do it except for they have subpoena power. I think in a case that is true. But if you're doing a pattern of practice investigation and there is no case of controversy pending,

I'm not sure you could subpoena something if there is no case. You're doing it as part of an investigation. You want the records because you want to see what XYZ County has been doing for the past five years. And I think that's the, because if there's a case, I think even the federal officials can subpoena if there's a pending case. But outside of that context, I'm thinking more about in the context of a pattern of practice investigation.

Yeah, hopefully I'm going to look at that bill more, but hopefully some of the power that they propose to give to state attorneys general to conduct pattern and practice studies would include subpoena power as well. I have not seen that, but I hope it does include it. And when she spoke as if it did not, because she talked as if she was working to get it.

Yeah, that would be a good addition. It makes sense. If the Department of Justice has that power, it would make sense for state attorneys general to have that power as well. And even if this even if the U.S. attorney, I mean, the Department of Justice. It's good to have another route. We have Bill Barr as the attorney general who we know is not going to do anything for civil rights.

Now, another part of the Justice and Policing Act for 2020 is to require federal officers to wear body cams. I wish all officers had to wear body cams. And I wish the bill contained some incentive grants or something that required all officers in all police departments to wear body cams at all times.

And to fail to activate your body camera or to try to turn it off would say you'd face some kind of penalty. You know, one of the promising aspects that really goes to the Black Lives Matter demands and that sort of rubric is the notion that you would have more citizen review and involvement. There are citizen review boards.

But some of them have more or less authority and some of them appointed by the very police chiefs that they're sworn to oversee and investigate. The bill does contain some language that strengthens and makes more independent these civilian review boards so that they're not beholden to the people that they're investigating. And there is a long section about independent prosecution of police who commit a homicide or kill somebody and use excessive force

because they would not be investigating themselves.

Yeah, you would think that'd be common practice. And in some places it is common practice where a police officer who regularly interacts with the prosecutors and prosecuting cases goes to court and he or she is a witness for the prosecutor on a regular basis. If that police officer is involved in the killing of a civilian, you wouldn't want the same prosecutor's office prosecuting that officer that they're friends with, that they've used as a witness,

as a defendant. It just won't work. And usually those cases are referred to the Attorney General's office, which goes back to the point that the Attorney General needs to have data just like the Department of Justice on what types of structural things need to be done to fix the system and have the power to even get the information about it. Well, you know, here's an interesting provision in this thing about the Attorney General to conduct a study

It says in the initial analysis, the attorney general shall perform an analysis of existing state statutes. Look at the state law to determine whether there is a rule or procedure that is enshrined in state law that impairs or hinders a possible investigation of misconduct. And so.

There does seem to be an intention to go after the structural issues. But again, a lot of this is the carrot and the stick.

They're using the power of grant funding to incentivize the kinds of behavior. And that's not unusual in law. We see that all the time. The reason your mortgage interest is deductible is because the government wants you to buy a house. And so they give you a financial incentive to do so. There's nothing wrong with that. And there's a lot of that in this Justice and Policing Act. What do you think about the ban on chokeholds?

Well, it should have been done a very long time ago. I saw Spike Lee on one of the talk shows, and he played a video that he made. It was a do-the-right-thing cut with the actual telephone footage from the killing of George Floyd. And the video was scenes from do-the-right-thing cut to George Floyd back and forth. It was just a few minutes long, but it is uncanny.

that the movie and actually what happened to George Floyd are almost the exact same thing. One is fiction and one is fact, but both of them are reality for us. It was just real crazy that 25 years ago when Do the Right Thing was made, we were talking about chokeholds.

And one reason Spike Lee wrote about it is because there had been a case in New York, Brooklyn, where a person had been killed by a chokehold by the police officer. Fast forward to 2020, another person, a modified chokehold with a knee, killed by a police officer in plain view of the world. Chokeholds should have been made illegal a long time ago. To your point...

Chocos, my first encounter with Chocos being illegal was in the domestic relations family violence context. About a decade ago, or maybe less than that, Georgia enacted a statute that made it a felony in a domestic violence situation to grab somebody by the throat.

And I thought, why just that? Why not hitting them in the head or punching them or whatever? But chokeholds were singled out for that kind of extraordinary treatment in criminal law in a family violence situation because it is so easy to kill or permanently injure somebody if you grab them by the neck. I wasn't familiar with that physiology and that medical background. But now we see it in the policing context and see these things are

I don't know how they spread, but they spread from one police department to another. One uses a bad practice, and before you know it, many of them are using it. You know how it spreads. The people in one department talk to officers in another department. They say, oh, that sounds like a good idea, and they do it. You know, there are racists in every police department.

because there are people in every police department. And when a racist hears about another racist doing something, they want to do it too. That's human nature. Now, to be a racist is not human nature, in my opinion, but to want to do what you hear somebody who you admire or think is like you is very much human nature. So, yeah, I'm all for the ban on chocos. I've noticed that a lot of municipalities say,

have initiated their local bans on chokeholds. For example, cities have said that our police departments cannot use a chokehold. Likewise with the no-knock warrant. We talked about no-knock warrant in our episode three, but no-knock warrants are also illegal unless the police announce themselves, which didn't happen in the Breonna Taylor case.

But that was case law. And we talked about how case law needed to be codified. Well, this would be the codification of case law that in a no-knock warrant, it wouldn't really be a no-knock. They would have to announce themselves so that the person inside the home or dwelling would know that these are police coming in and I should not shoot them as home invaders.

It just makes common sense. It should have been done a long time ago. What I wanted to talk about when I was talking about, we were talking about incentivizing grants to local, to states and local police departments. You know, there's something called separation of powers in our United States Constitution. And some things the federal government can't do for the states.

But what they can do, for example, local law enforcement is not a power of the federal government. Right.

It's a state power, which trickles down to a county and a municipality power. But what they can do is use the dollar to give grants to encourage local police departments, sheriff's offices, and state officers to do this or that. And it reminds me of Martin Luther King Boulevards. There's a Martin Luther King Boulevard in just like every city on Hamlet in the United States.

Well, it's not because everybody in every city and every little hamlet thought that Dr. Martin Luther King deserved a boulevard. It's because the federal government, Department of Transportation, said this is the right thing to do. And we're going to give you money to do it. And if you don't do it, you're not going to get the money. So it is effective. You remember that, Jane? Yeah.

But what I was saying is Department of Transportation said we think that every city in Hamlet should have a Dr. Martin. And they gave them money. They gave them money to do it.

And if they didn't do it, they didn't get the money. So they all did it. I was driving through little old Williamston and Pells in South Carolina. And to my surprise, there was a Martin Luther King Boulevard in that little hamlet. And I thought, oh, yeah, it's not that they loved him so much. Of course, we got money for the course. We studied unless you're Bob Jones University and you decide not to take federal funding so that you can maintain segregation.

Remember that case? I was so embarrassed in law school when they brought up somebody from my hometown talking about they wouldn't take, they prefer segregation to federal grants. The same thing is true with the Affordable Care Act. The incentive was we will pay for Medicaid expansion for 10 years if you will adopt it. And some states, many, most of them have now. Did you know that? I don't want to get off track, but most...

No, this is on the track, except for South Carolina. They never did expand Medicaid. No, it's established. Remember, they started the Civil War. They attacked the United States. Oh, my goodness. So they always... Well, Georgia hasn't even, unless they've done so very recently. Georgia hasn't expanded Medicaid. Arkansas did.

I think Tennessee did. And isn't it amazing that the alignments that were around back in the 1860s during the Civil War are still pretty much the same alignments. You tell me a state and I can tell you where they were in the Civil War and they're pretty much the same place now. Well, the Confederacy is intact.

And that's because the work of the Civil War was left undone. Reconstruction was halted and the whole nation changed their minds about the Civil War within a very few years. In like 30 years, they changed their minds about the war and we became the bad guys. But that's a different podcast. Oh, yeah. We'll have to do a series of podcasts about that because it helps you understand today.

so much more clearly if you understand those alignments and the economic interests that were at stake almost two centuries ago now.

Yeah, but back to our point, the incentives are good, but I can already see states like South Carolina where our dumb senator, he's not my senator, I didn't vote for him, but Tim Scott is talking about he's writing the bill. I can already see South Carolina not accepting the incentive, not accepting the grants because

They are outlying in the United States. They attack the United States and they resist everything that the United States stands for. That's good. And so if grants are the incentive, I know South Carolina would refuse the grants because they don't want to. They don't want the transparency.

The police misconduct registry is a very interesting thing because it gathers the data, makes it available, but it doesn't require you to use it. If you're a chief of police and you're about to hire someone, it doesn't require that you check the registry. It depends on the goodwill of the local department to have a policy as to whether or not they will use the registry as one of the tools

Well, that's frightening to me because I know in states across the Confederacy, they won't use it. And so the racists, the Klan members, the people who are crazy can get on police forces just like they always have if they don't check.

I don't know any mechanism and I want you to think about it because you can think about stuff like this. What is the mechanism to require police departments, state officers, counties to use the registry? Is it the licensing that we talked about earlier? That could be one way. It would also probably take federal court decision.

at least at the circuit level, at the court of appeals level, federal court of appeals to say, if you don't use this registry for background, you subject yourself to additional legal claims. Suppose you hire an officer, he's got a background, you didn't check the registry, that

He does something wrong. Somebody dies. And then you're faced with a civil suit from that family. And they say, well, you're a couple. But you say, well, we trained him. That's what they say now. Municipalities say, well, we had training. We did everything we could do. Well, no, you didn't do everything you could do because you didn't check the registry. And then there'd probably be a fight. And then they...

The people claiming that they should use the registry would probably win that fight. I know that's all jumbled up, but it would probably have to go. No, it's not jumbled up.

It makes sense. I can see the use in filing wrongful death claims and winning those claims based on that. But what do you do to stop the people from being killed? How do you use the registry to stop people from being hired who shouldn't be hired and keep people alive who would have been killed if that person had been hired? I don't know the answer to that question, but you know what? It's a great question and we ought to do some research.

And maybe I can get Senator Cory Booker or Senator Harris to come on and talk to us about these things. Yeah, we should. We really should, Jan, because it's necessary for us to know. One part of the Congressional Black Caucus Justice and Policing Act that we have not talked about is the mandate for racial training. And let me say the other side of that is there is no mandate for racial screening or racism screening before Congress.

officers are hired if you can mandate racial training um can't you mandate racial screening before people are hired i would think that the screening would have to be done by those people who train police officers which are the academies could you lawfully not necessarily not necessarily if now this goes back to um

This goes back to having a licensing or type of qualifications entity that would say you need to have a psychological test. You need to take training. You need to be skilled in using a weapon. You need to be skilled in learning how to diffuse situations before we will license you or give you a rating.

So that those who are those agencies that are looking at you to hire, you can see this rating before they hire you. I think that that's a possible avenue because I tell you that I am more concerned. You hear a lot about implicit bias. And I think that's the bias training and de-escalation training. But if I am a rabid segregationist, if I am a true sympathizer with the invisible empire,

Not only do I have those feelings, but I've learned how to mask them so that I can blend in. It's real hard to hide it from a psychiatrist. Exactly. That's my point. I might be able to hide it from my fellow officers long enough to get the job. I might be able to hide it from my pastor. But they are tests that are designed to elicit information that you don't realize you're giving. And so while we're doing anti-bias training,

I agree with you wholeheartedly, 150%, that one of the most important things we can do is set up standards to screen people to see whether they have the temperament, the temperament to be police officers and handle that responsibility. Think about what we go through when you pass the bar exam. Before you can take it, you have to go through a background check. And one of the things they look for is your ability to be honest. And people will laugh at that when it's applied to lawyers, but that's what they do. Right.

That's what they do. I'll never forget it. When they were investigating me before I took my bar exam, I wasn't even thinking about the bar exam because I hadn't graduated from law school yet, but I was in the third year and my neighbors started calling me by my name. And I thought, huh, that's interesting. I don't know their names. Wonder how do they know my name? But I was too busy studying to really think about it. And it was years later that I realized

that the bar had sent sled agents in my apartment complex to question my neighbors about me, about people coming in and out of my home. Do I raise a ruckus? Have I caused trouble in my neighborhood? What kind of person do they think I am? That's how they knew my name. They questioned everybody around me. And of course, the bar is not really a state institution. It's not a state agency.

It's a private agency, a nonprofit agency. And if if they can do that kind of background before they admit you to the profession, then it seems that that might be a good model for police. And I think about teachers, too, Jan. You know how mom and daddy. I don't know about dad is struggling because he was a good test tech. He made an A on the national teachers exam.

And that meant that he not only could get hired, but he could get paid more because he made an A on the national teacher's exam. And mama made a B and she said, well, he won't outdo me. And she studied to make an A. Well, it was a national exam and the state looked at it. And when she made her A, she got a raise.

It could be something like that. If you can pass these qualifications, if you can pass the psychological tests and the use of weapons and anti-racist and diffusing situation tests, then you can get a rating. And the police entities around the country can say, oh, this person has an A rating, this person has a B rating.

They would be hard-pressed not to hire people. They'd be hard-pressed to hire people with a C rating because they know at some point it would backfire and somebody would get sued, namely the city or the county or the state. Well, that's sort of why I like... I haven't seen an example of it, but I sort of like the idea of insurance because they underwrite you before they give you insurance and your premium... Yeah, go on and explain that because I don't understand the insurance people. Okay.

As a lawyer, you take out professional liability insurance. That's in case you make a mistake and one of your clients is damaged or injured in some way. But if you have too many incidents, they rate you and they say, we can't write a policy for you. You're shown too much evidence that you're likely to have misconduct. Think about it in a car situation. You have to have liability insurance to put a car on the road.

which, by the way, only insures people you injure and not yourself. So if I have auto insurance, but then I have three wrecks in one year, my premium is going to go up so high that I may not be able to afford it and may not be able to drive. Right. Right. Well, I'm not right now. Police officers most of the time don't pay judgments out of their own pockets.

Most of the time it's paid by the municipality or the county. The city, the county, or the state. But if officers are on the street with a gun and they know that I'm going to be personally responsible for this if somebody's killed and I don't make a good decision, that should serve as a deterrent. I don't think any one thing is going to do it, but I think there are a lot of things. And a lot of it is in this bill. And frankly, my friend Hank Johnson from Atlanta

has proposed demilitarization of the police. A lot of the things that are in this bill he proposed years ago, but it has to meet the opportunity. Right now we have an opportunity that's like the same opportunity we had after President Kennedy was killed. Why does somebody have to die in America to get change? That's the question I want somebody to answer for me. When Dr. King died, we got legislative changes.

the Edmund Pettus Bridge brought us and John Lewis getting beat upside the head gave us the Voting Rights Act. It takes calamity, it seems, to move the United States forward. Yeah, Frederick Douglass said it best. What did he say? Those who say they want change but don't want the storm and the water's rates, you know, they're not serious. Well, they don't understand how change happens. That's how it happens.

Well, Janice, I wanted to bring up another point. Oh, Volusia, Florida, a county in Florida, decided to take de-escalation training. They had to leave the United States to do it. They went to Scotland to do it because the Scottish police did not carry guns.

And so they are trained in how to police without guns. That's not as unusual. Now the British police carry guns now. Remember a whole long time ago when I went there to study? They did not carry guns then. In the Bahamas and places like that, they don't carry guns. This idea that you got to have a gun to be a cop is a distinctly American idea. I guess it comes from

jesse james and we you know the wild wild west and that sort of thing no i think you got to go back a little farther to uh slaves running well yeah everything like you say sometimes it's all about us it is all about us in america it's all about african americans our whole history pivots on how african americans are treated and what african americans do now i think that um

training in how to de-escalate, how to police with your mind and not with a gun would be helpful. And it would be helpful in the regard of using a weapon only when it was absolutely necessary as a last resort. Volusia County has experienced the same number of calls for the police, but their arrests have decreased by 30% since they start using these de-escalation techniques. Is that Daytona?

Volusia. I think Volusia is Daytona. That's where Hubert Grimes is down there. Yeah, it is Daytona. And that's a very promising thing. And I don't know if the new bill, Justice and Policing Act, has anything that would fund that type of training. I hope it does. Yes, there are grants in here for training. And there is a provision, I'm looking at section 202, that says

A state or other jurisdiction may not receive funds under the burn grant program for a fiscal year if they've not submitted to the police misconduct registry information establishing that all of their officers have completed all state certification requirements. So now it's back to the states to set up these requirements. And there are some incentives to act to get states to do that.

So your office and that's sort of like insurance. It's sort of like self-insurance. We'll make sure that you're certified if you're on our force. Oh, that's right. And I don't know if this is a part of the bill, but there is a movement that kind of comes from the bottom up from local from municipalities and county governments up that on the release of body cam video.

Rather than have people have to file actions in court to get the video, they've changed the burden of proof to police to prove that there's a reason, a real reason for not releasing video. In other words, that the release of video would be within the course of things. And if the police had some compelling reason not to release it, they would have to prove that in court. Mm-hmm.

Now, the other thing that's interesting is, you know, there's a lot of secrecy. They say, well, those are human resource records and you can't get them. But this Justice and Policing Act, if you're subject to it, if you come under its jurisdiction by accepting federal grant funding, has circumstances under which the content of the registry would be available not only to law enforcement, but to the public.

Right. And then the public could put pressure. If you see an officer in that registry with a lot of complaints, who's on your force, that puts political pressure on the mayor and the city council to do something about it. Yeah. I like that jam. Well, I've been saying to myself and everybody that can listen to me for a while that the water is troubled now. And if you don't understand the reference, you know, there was a lame man laying on a mat outside at the beautiful gate, um,

right at the brink of the pool. And when the pool was troubled, when it was rumbling, the people believed that if you push the sick person in, they would be healed. And so Jesus came by and the sick person said, well, Jesus asked him, don't you want to be healed? He said, yeah, well, when the water's troubled, I don't have anybody push me in. But the water is troubled now. And this Justice in Policing Act

might be the push that we need to get in the water and get some things started that should have been started a long time ago. It is not the panacea. It won't fix all our problems, but it's the beginning to a fix. And so I hope that the Senate is troubled enough to go on and pass it, whether they're troubled and hard of mind or troubled because they think they won't get elected again.

I like to see it move forward and I like to see it pass. Could it be tweaked? Yeah. And it probably will be because they'll have to be a Senate version, not have to be, but they'll like to be a Senate version and then they'll have to. Let me go back to the complaint process again, the the federal registry, because this is very interesting.

Each complaint filed against the law enforcement officer has to be reported to the registry, including those that were found to be credible or that resulted in disciplinary action. That makes sense. Complaints that are pending review have to be reported, as well as complaints for which the law enforcement officer was exonerated.

or that were determined to be unfounded or not sustained. So even those where he gets away with it, all 18 of Chauvin's complaints would have to be reported to the registry. That's interesting. Right. Yeah, I think that's necessary. We need that. We need that across the board. Now, is it your understanding that's for federal officers, or do you think that that is something that they are going to incentivize? This is something that they're incentivizing us.

All federal and local law enforcement officers. Well, that's good. We need that. We definitely need it. And you know what? I credit the Congressional Black Caucus. You know, people grouse about the caucus. They don't do nothing but this and that and the third. But they got onto this quickly. One of the reasons they were able to get onto it quickly is that so many members have been pushing one or another of these reforms for years without being able to get any action on it.

And so now that the waters are troubled, as you say, they went and said, you got a bill on crime. You got a bill on policing. I can hear Nancy saying, bring me all the bills and let's put them in a basket. And we picked the best ones. And that's the only way you could have written a bill like this this quickly. They already existed like the problem. Exactly.

So when we get cynical and say our representatives are not doing anything, sometimes you have to get a little closer to what they are doing so you can see how they were maybe stymied by somebody like Mitch McConnell. Right. And we haven't always, when I say we, Democrats haven't always had a majority in the House. Exactly. And so these things were tabled in the House before they even had light of day in the Senate.

So I'm glad that those representatives who were writing bills, those senators, those congressmen who were writing bills, thinking about bills, did it when they did it. Because like you say, they wouldn't have not have been able to get it together fast enough. But I will tell you that they've had a majority now for what, two years?

And just like Maxine Waters said, I've got the gavel and I'm going to use it. They have been quite activist. There are stacks of bills, including H.R. one that would restore portions of the Voting Rights Act, stacks of bills that would address some of these issues that passed the House and can't get a hearing in the Senate. If anybody's listening to this that lives in Kentucky, please vote and do the nation a favor.

And get rid of Mitch McConnell. I think he's going down. And, you know, there's a very, very good chance that Lindsey Graham is going down. I saw in South Carolina, I saw a commercial yesterday where this person was praising Joe Biden and talking about what a good legislator he was and what a good person he was and what a good public servant he was. And the voice was Lindsey Graham.

And it wasn't that long ago. It was before he quit being a never Trumper, which wasn't that long ago. And Lindsey Graham is scrapping. He's down in fundraising. He's down in polling in South Carolina, the most racist state in the union. I don't know if it's the most racist. It is very interesting. But you know, the United States is like that. I think about the gay rights struggle. Gays were discriminated against until all of a sudden they were not.

Right. And even a conservative Supreme Court upheld their right to marry and to have domestic partnerships. And we went from and I know not everybody believes that they should have equal rights and not everybody believes that it's a civil rights issue. It's a moral or religious issue. But whatever you think, the law of the United States has turned 180 degrees to support their rights.

Think about when Barack Obama was elected to president. He was elected in 2008. Right. He didn't believe in gay marriage. Exactly. And then he said he had evolved because his children and their friends talked to him. And he saw the political expediency of it. Of course. That is okay.

But by the time the Supreme Court ruled that gays could marry, he had lights on the White House, the gay flag, a rainbow flag projected onto the White House in celebration. And I think there's an element of hope in that, that when the people, this system really is designed to give the people a voice. And when the people don't vote or they don't stay in touch with their representatives, the government doesn't function the way it's supposed to.

Yeah, I got to go back to this, Jan. I bristle when people say that the gay movement just for shorthand

is not like the civil rights movement. It's not a part of the civil rights movement. I had a preacher to say to me, yeah, well, we were talking and I was explaining to him how it was like the civil rights movement. And his salvo was, well, why did they have to start in the bathroom? I said, sir, we started in the bathroom. Remember? Sure did.

We started in the bathroom. It is a civil rights issue. And, you know, people said that their religion said Bob Jones said their religion said that blacks and whites should be separate, that there would be a separate black heaven and white heaven and bathroom should be separate. And God told them that we should be separate. Then Noah said we should be separate.

that, you know, that they had some religious basis for saying we should be separate. Same thing with the gay people. I'm glad I don't have to judge. I'm glad that my only mandate is to love everybody and let God be that judge. Now, that's my belief. And I tell you, it's freeing because I struggle with it, too. But I realize, wait a minute, I don't have to judge and I can let it go. And what a burden was lifted.

But the point is, it's civil rights just like any other civil rights. And it seemed like the gay, lesbian, questioning, LGBTQ plus community overcame very quickly and very suddenly. It's not true. They've been fighting a long time.

But it seems sudden to people who are not in that fight. Just like what's going on right now seems sudden to some people. How could it be sudden? Like, I think you said this to me. Some white people haven't liked us since we got free. Yeah. And so it's not sudden. Well, when I say that,

sudden that once the momentum is like pushing something up a hill you push the rock up the hill and it's heavy and it takes forever but once you get at the top of the hill then gravity can help you and it seems like we're in a gravity moment where you see New York and Chicago and these big cities and small towns changing the way they police well maybe the next fight will be changing the way they prosecute and maybe after that changing the way that they judge

And maybe after that, changing the way that we legislate. But it does seem that this is something different. I wish that they would bring in the gun people to this at the same time and take advantage because they're related in a way. Well, I know a change is coming. Clemson Honors College is no longer the John C. Calhoun Honors College, the slave owner. They've asked the state legislature to give them the right to change the name of Tillman Hall, named after one on Pitchfork. Lord have mercy.

The legislature has to give them the authority to change the name because when the racists instituted it, when they were afraid of integration, not back in the Civil War days, but in the modern era when they were afraid that integration would come to Clemson, they changed the name of the old main building to Tillman Hall.

They want to change it back now, but they have to get the legislature's approval because the racists say, well, the only way we can stay racist in perpetuity is to make a law that you can't change it unless the legislature changes. So, you know, in Richmond, they have something they call Monument Row.

in downtown. It wasn't Richmond at one point, the capital of the Confederacy. It was the capital of the Confederacy. Rob D. Lee was still riding high. But they brought him down last week. Yeah, they brought him down. I'm so happy. It's symbolic, but it's a good symbol. Well, you know, it doesn't

It doesn't bother me the way some things do, because I want to be able to point to Robert E. Lee and say, this is the man who tried to destroy the United States of America. Don't you ever let that happen again. There is a value to history. But the flip side of that, and that's why I guess I'm kind of ambivalent, is why should public dollars and public space and public attention be lavished on people who tried to destroy the country? Right.

We might as well put Putin's statute up somewhere. Don't think Trump hadn't thought about it. Well...

It reminds me of that moment when we were standing in line to go to Senator Picknick's funeral. The pastor and South Carolina state senator who was killed in his church, along with eight of his church members by Dylann Roof. His funeral was on the College of Charleston campus in their large auditorium. We stood in line outside a garden and had all Confederate money. Sure did. That was a hard day.

I stood in front of him. You know, daddy wrote his thesis about Reconstruction and the post-Reconstruction civil rights laws. You know, there were civil rights laws in the 1800s, too. Right. And so we knew who Ben Pitchfork Tillman was. Growing up, we knew who he was. He taught us who he was. And that's a terrible thing to teach your eight, nine-year-old children.

But daddy didn't play with us. He tried to tell us the truth. He did try to tell us the truth in ways. And he expected you to understand it and do something about it too. But I was terribly... We stood in line for hours that day. And it got hot. We were out there early, so it was okay. But the later we were out there, the hotter it got. And I'm standing under the

a statue of Ben Pitchfork Tim looks like it's 100 feet tall. It was just very disturbing. And then get in line and some of my white lady friends decided they're going to bust in front of us after we've been standing in line. And I said, please not today. This is the wrong day. I tried to be patient. I tried to sound like mammy. Please, please don't step on us today. Of all days.

But do you think that stopped him?

No. Well, we're in a prince of our state, a real prince. When Obama met him for the first time, I think they quote President Obama saying, I feel like I'm looking at the future. Our prince, Senator Pickett, had been gunned down in his own church. I had just met him for the first time in January of that same year. That was 2015. Was that when we went down there and it was kind of snowy?

Yeah, when we went to the State House and had a breakfast with the South Carolina Legislative Black Caucus to talk about

what was on their agenda for that year. He came in speaking like God and making so much sense and being so nice. I said, my goodness. He struck me too. Big, tall, gentle, giant, intellectual, so personable and so smart. Our hero, our prince had been killed and these white folk, well, some of them were good. They were handing us water. You remember? Yeah, yeah. But then some of them were trying to cut in front of us in line and I remember you saying it.

Not today. Don't do that today. I can tolerate your foolishness most days. Yeah, but we were hurt that day. Not that day. Well, we've come to the end of our hour. We hope that you enjoy this podcast. It will be posted later on this afternoon. Is that correct, Davina?

It'll be posted. We post every Saturday afternoon. We try to post by 3 o'clock on Sisters in Law Facebook page, on Davida Mathis Facebook page, and Janice Mathis Facebook page. So check us out. Continue to listen to our podcast. We are the Sisters in Law. Real sisters, real lawyers. Really good talk. Hey, I'm going to tell you something. I'm going to tell you something. It's like, it's down to the face first.

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