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ACLU Massachusetts Legal Director Matthew Segal says the judicial gutting of constitutional protections against unreasonable searches must be addressed

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JAISAL NOOR, TRNN: Welcome to the Real News Network. I’m Jaisal Noor in Baltimore. Hundreds of demonstrators took to the streets in Chicago to protest the fatal police shooting of a black man in the city last month, snarling traffic. Authorities on Friday, August 5 released videos that capture the moments before and after police shot 18-year-old Paul O’Neill, but not the shooting itself, because a police officer’s body camera was not recording. Paul O’Neill becomes just the latest killing that has fueled the ongoing debate on how to stop police violence. Our next guest argues what’s received less attention is how the gutting of the 4th Amendment protections against unreasonable searches and seizures has helped lead to many police killings, such as the death of Eric Garner and Philando Castile. He says every moment that 4th Amendment law remains unchanged risks people’s lives. We’re now joined by Matthew Segal. He’s the legal director of the ACLU of Massachusetts. His piece in the Guardian is Beyond Black Lives Matters: Police Reform Must Be Bolstered By Legal Action. Thanks so much for joining us. MATTHEW SEGAL: Thank you for having me. NOOR: So talk about what you mean, that every moment the 4th Amendment law remains unchanged it risks people’s lives. It’s costing people’s lives. Talk about that. SEGAL: Well, what we’ve seen in this country over the last few years is a recognition that police practices have not been adequate to the task of protecting civilians from violence. Sometimes violence from police officers themselves. And what has been talked about less are the Supreme Court cases behind the actions of police officers that pave the way for this violence. And what I was trying to focus on in the piece is the need for the case law to change in order to better protect people. There needs to be much more protection for civilians who are confronted by police officers. And although the police departments can provide that protection, so can courts. NOOR: That is a key issue, because, you know–and this has been even sort of put on steroids with the war on drugs–so many negative interactions where people are stopped, or searched, or arrested with, you know, very little cause. And the courts–as you argue, they give the officer sort of an unreasonable benefit of the doubt. I wanted to start off by talking about Whren v. United States. You say that’s, you know, one of the, one of the key pieces of law here, of case law here. It allows officers to use any violations, like a broken tail light, like that’s what Philando Castile was stopped dozens of times for as a pretext, to stop people they deem suspicious. Is that reasonable? SEGAL: Right. Well, I mean, that’s really one of the key points about policing in America. Some of the actions that people are protesting again, that people think are outrageous when police officers do that, are actions that courts have actually held to be reasonable. The primary protection that the Constitution is supposed to provide people against unreasonable searches and seizures, unreasonable uses of force, is the 4th Amendment, which creates this reasonableness rule. So that’s supposed to keep you from, your body, from being seized by the police unreasonably. It’s supposed to keep the police from using violence against your body unreasonably. And what the courts have said time and again is they don’t think much violates that rule, that reasonableness rule. And so when you have a situation like a black man being pulled over for a broken tail light, or being grabbed selling loose cigarettes, that police conduct strikes people as outrageous, and yet courts have said it’s reasonable. And that’s really what needs to change. We need courts to reassess what they’ve been saying is reasonable, because those assessments are really blueprints for police departments. And sometimes when horrible things happen, when acts of violence happen, it is the police following the blueprints that courts have given to them. NOOR: Now, supporters of this case law–and I’m sure many police departments, police unions, would argue that officers need the benefit of the doubt, they can’t be second-guessed, and you know, if they need to–they need to protect themselves, right, they need to be able to use force and protect themselves, and be able to trust their instincts or their judgment when they’re interacting with people. How do you respond to those type of arguments? SEGAL: Well, there’s a difference between making those arguments now in the light of day, now that we’ve had decades of trying out this case law, and [inaud.] making them years ago. And what has happened is over time, since Whren was decided 20 years ago, since some of these other cases were decided, we have seen in streets of America how it’s worked out. And the results are in, and they’re terrible. Whren has, in effect, led to widespread racial profiling that’s been documented across the country. Other cases about when police can use force are the reasons why police sort of find themselves needlessly killing people rather than de-escalating situations. And so what I’m not suggesting is that we need a case law that just throws caution to the wind and fails to protect police officers. What I am saying is that we need a case law that also protects civilians, and we just haven’t had it yet. NOOR: And so, you know, it’s going to be tough to challenge that, right? Because police in our society have, they’ve essentially received immunity. They have to do a tough job, and they’ve received these protections because they are playing a function in our society. So how do we go about–talk about how we go about challenging this, from the more immediate steps to long-term as well. SEGAL: Well, it is hard. And it’s a credit to folks involved in the Black Lives Matter movement and in other movements across this country about policing that they have taken this issue, brought it to the nation’s attention, and they are really making progress. And yes, changing case law is hard, too, but we have to do it. And it’s something that lawyers, who are–and judges, honestly, who are sitting at home, reading the paper, watching the news, seeing these horrible things unfold, something that they can work on. Lawyers across the country can start to raise arguments that say yes, public safety matters. But that doesn’t mean safety only for the police. It also means safety for civilians. And here at the ACLU in Massachusetts we submitted a brief in a case not too long ago about an innocent man who was shot and killed by a police officer. And the first thing we said in our brief was this is a case about public safety. I think courts hear all the time from police officers about the need to protect police from violence. And I’m not saying they should no longer hear from police on that. But they need to hear from everyone else, too. They need to understand that everyone’s life matters, and including black and brown people, including the people who are most often suggested to police violence. NOOR: And so, you know, this case law will have to be challenged at the Supreme Court level, I would imagine. How significant is the death of Antonin Scalia? And how important could potentially three new Supreme Court justices that are appointed by the next president be if we want to challenge these decisions? SEGAL: No matter who is the Supreme Court justice who takes the place of Antonin Scalia, or either justices who come on the Supreme Court. All of the justices need to hear about how their 4th Amendment case law is working. And that is the job of lawyers, and civil rights organizations all across the country, public defenders, too, to raise this issue, to say look, this, these 4th Amendment cases haven’t worked. We need to go back to the drawing board. And so there’s a role for lawyers to play, there’s a role for the Supreme Court to play. There’s also a role for government to play. There’s a study that just came out by a professor at Harvard Law School named Andrew [Presto], and what he found is that the United States government opposes criminal defendants about 96 percent of the time at the Supreme Court. And in light of what we’re seeing in the streets of America right now, that does not make sense. NOOR: All right. Matthew Segal, thanks so much for joining us. SEGAL: Thank you for having me. NOOR: Thank you for joining us at the Real News Network.


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