Police Use Ignorance of the Law as a Defense, But You Can’t

September 12, 2019

On this episode we take a critical look at the obstacles to holding police accountable, and expose how both politicians and judges defend an institution that is often at odds with communities.

On this episode we take a critical look at the obstacles to holding police accountable, and expose how both politicians and judges defend an institution that is often at odds with communities.


Story Transcript

TAYA GRAHAM: Hello. My name is Taya Graham and welcome to the Police Accountability Report.

As we said before, the show has a single purpose: holding the politically powerful institution of policing accountable. To do so, we dig deep and examine not just police misconduct, but the politics that makes it possible. And I want you watching to know that if you have evidence of police misconduct or brutality, please share it with us and we might be able to investigate. Please reach out to us either in the comments or message us at the Police Accountability Report on Facebook or @Eyesonpolice on Twitter. And of course, you can message me directly @Tayasbaltimore on Twitter or Facebook.

Now, today we’re going to actually expand on a topic we discussed last week with my co-host Stephen Janis. It’s the Bad Apples Theory. It’s the idea that police corruption is limited to a few bad actors and not emblematic of the problems with the system itself. The Bad Apples Theory, as we pointed out, fails to take into account aspects of policing that gave individual cops almost catastrophic powers. And that bad apples not only ruin hundreds if not thousands of lives, but grow and thrive in a veritable orchard of corruption, namely our criminal justice system.

But this week, there were dual developments that make this point even more resonate. Allow us to show, not tell you, why the Bad Apples Theory is simply not just false, but destructive. Just to make a finer point on the consequences of so-called bad apples, we’ll talk about a new development in the Gun Trace Task Force scandal. Now this is just a reminder, the GTTF was a group of eight Baltimore police officers, who robbed residents, dealt drugs, and stole over time. So Stephen, this week in the Baltimore State’s Attorney, they made a request. What was this request?

STEPHEN JANIS: Well, they asked for over 800 cases to be thrown out that were tied to some members of the Gun Trace Task Force. Cases have been tainted by false testimony, or planting drugs, or whatever. It’s a massive number of cases when you think about it— 800. It touches thousands of lives, so it was a pretty stunning request that there were that many cases, and there’s still this incredible fallout from the scandal involving just eight officers.

TAYA GRAHAM: And even as prosecutors tried to clean up this mess, there was a new set of indictments in the case. In fact, the latest set of charges illustrate just how ill-conceived the Bad Apples Theory is. But that in fact, the GTTF had help— and lots of it. So Stephen, can you talk about the type of help and support they received?

STEPHEN JANIS: Yeah. In fact, just as this was happening, another officer was indicted who had helped one of the ringleaders, Sargent Wayne Jenkins of the GTTF, plant a BB gun on a person he ran over. Because he was trying to criminalize him or just – he got angry and he just ran him over. So after he runs him over, he gets scared, and he calls Sergeant Gladstone, who shows up with a BB gun to plant on the guy, so they can say the guy had a gun and Sergeant Wayne Jenkins is in the clear. It turns out, another officer who was in that car lied to a Federal Grand Jury, and he has since been indicted for lying, but what that tells you is that there was nobody – everyone knew what was going on.

TAYA GRAHAM: Right.

STEPHEN JANIS: Number one, there were lots of people that knew what was going on, knew they were planting BB guns on people to criminalize them, and they didn’t say anything. And not only did they not say anything, but they lied to a Federal Grand Jury about it, and so this is just the latest fallout from showing that Sergeant Wayne Jenkins had a support system around him. He had people that would help him, and they’re willing to lie to a Federal Grand Jury for him. Even after he’d been convicted and charged with incredible crimes, these people are still lying for him.

TAYA GRAHAM: But with all these revelations of systemic corruption and hundreds if not thousands of lives destroyed, and the brazen abetting of police malfeasance by other cops, one would think there would be some sort of questioning about the unfettered power of police. That in a democracy, a community roiled by an ever burgeoning scandal would push back and hold police accountable, but in fact, the opposite has happened. Not only did the new revelations fail to elicit comment from city and state officials alike, but those same elected representatives actually doubled down with a big new dose of law enforcement. That’s right. They decided to give more power and more money to police. Stephen, how did the police department end up with more money after it was proven that they had bad actors?

STEPHEN JANIS: Well, they did one of those things that we, as a press, continually fall for. They got a bunch of cops together who were already working for the police, and gave them a whole new name, and spun it out and called it a strike force. So this new thing, that they already had all these cops, they’re already working with the police department, they try it out at a press conference, “We’re going to create a strike force.” But it wasn’t just reorganizing cops and creating alliances with federal officers and local. They also like came up with a ton of money— $17 million to rent 75,000 square feet in West Baltimore, so that they could have a headquarters for this new strike force, which is going to be empowered to do what? Militarize policing. What was the GTTF doing? Militarize policing. So it’s like – it’s just trotting out the same old thing in new clothes. Look, “Hey, don’t look here. It’s the same thing,” but the thing is that no one said, “That really hasn’t been working out, has it?” So that’s something we wanted to look at.

TAYA GRAHAM: But to delve deeper into showing what this means, we decided to take a look at one of the neighborhoods that will be the target of this new strike force. It’s an area that was the former home of our colleague, Darrell Lewis. Last week, he discussed his encounter with a group of drug-dealing cops named Antonio Murray and William King. But this week, he took us on a walking tour of what had been left in the wake of this aggressive policing, and why he thinks it will only make things worse.

STEPHEN JANIS: The reason we wanted to come out here is because we had that discussion last week about the bad apples, and now we heard they’re going to be some sort of strike force at the police department. But I wanted to come back to your old neighborhood because has anything really changed here after 30-40 years of this intense drug war? When you take us around here, what do you see? What’s changed?

DARYL LEWIS: The only thing I see changed is more poverty. More hardship, more sadness, less hope. I haven’t seen any change. Number one, if you have no job to go to in the morning when you get up and come outside, only thing you have is what you see out here. So you say to yourself, “How do I start my day? I’m not able to go to work because I don’t have a job. So now I’m forced to feed my family, feed myself, so now I have to do what I have to do.

STEPHEN JANIS: So let me ask you a question, when you were in that position, did you feel like there was any form of government or anything that was out there to help you to say, “Hey, Daryl, there’s another way?” Or was it just trapped in isolation? I mean, was there ever a point where you thought, other than the police, was there anything you saw that could have helped you?

DARYL LEWIS: No, nothing. I felt hopeless to be perfectly honest with you, Steve. I felt hopeless.

TAYA GRAHAM: But we didn’t stop there. We also visited an expert on the consequences of unlimited police powers. His name is A. Dwight Pettit, he’s the Civil Rights Attorney and Real News Board Member, who’s represented victims in hundreds of brutality cases. And the story he tell us is even more disturbing because it goes to the core idea of the show: accountability. That’s because Pettit is in the middle of a battle with city officials who’ve made a stunning argument: that the city which gave badges, guns, and arrest powers to out of control cops, are not responsible for their actions; that same government, which armed and paid them, owes nothing to the victims of their criminal behavior.

A. DWIGHT PETTIT: Their argument, in my opinion, is just so ridiculous. That the only thing that you can raise is the fact that what you’ve just raised, that he’s a police officer, he’s clothed with authority, he’s acting under color of law. Citizens are responding to him as a police officer. There’s no such thing as outside of the scope of employment. And how do you say it’s coming out now? How do you say in the cases of the Gun Trace Task Force, who operated with impunity, that the supervisors and the authorities did not know that all this was going on? How do you raise that defense?

TAYA GRAHAM: Stephen, what does Mr. Pettit’s struggle tell us about the relationship between politicians and police?

STEPHEN JANIS: It just shows us how the idea of policing can corrupt a government to the point where because you have people with badges and guns, exercising this power over the impoverished part of the city, and become part of a larger narrative of a city beset with crime, which is really beset with poverty and failing schools, but become that cover for politicians who don’t know how to fix complex problems, can infiltrate the thinking of a city government where they were literally saying, “We’re not responsible for these people.”

But you armed them. You gave them badges. You gave them guns. You gave them the color of law, to shoot, kill, arrest, detain, take away the constitutional rights, and you’re saying you’re not responsible just because they misbehaved? What did you think would happen? I mean, these cops were accused of stealing overtime. These cops were accused of robbing residents. These things were going on. As the previous case pointed out, there were other cops helping them who knew what was happening.

TAYA GRAHAM: Exactly.

STEPHEN JANIS: And you’re still saying you’re not responsible. It’s a freaking paramilitary organization, and it’s run by the mayor. So I think it just shows how difficult it’s going to be— it is— in this country to hold police accountable in any way, shape, or form.

TAYA GRAHAM: And Mr. Pettit also addresses a central theme of the show. Later in the interview, he talks about how the courts and the politicians literally conspire to hold policing harmless.

STEPHEN JANIS: Police keep getting away with it. Why can’t they be held accountable, for real? Why do you think?

A. DWIGHT PETTIT: Because the courts have protected them, the legislative bodies have protected them, and so then we have a president that comes in and tells the police, “You do what you want to do. I got your back.” Then this reinforces this and politically reinforces it throughout the spectrum, from the top all the way down.

TAYA GRAHAM: So Stephen, Mr. Pettit also told us something really shocking about how police are defending themselves in court.

STEPHEN JANIS: Well, so basically, in civil suits and even cases of wrongful death, police are making an argument that they were ignorant of the law, and therefore they can’t be held harmless, they can’t be held liable, or be held to even account criminally because he didn’t know it.

TAYA GRAHAM: Okay, wait. Let me just stop you there for one second.

STEPHEN JANIS: Yeah.

TAYA GRAHAM: You’re telling me that law enforcement officers are pleading ignorance of the law to get out of any sort of responsibility for their actions?

STEPHEN JANIS: Yeah. He actually told us in cases that he has tried or that cases he has sued or litigated, the police have said, “I didn’t know the law.” And police have been held harmless, and the Supreme Court has upheld that. Let’s just take a listen to what he had to say.

STEPHEN JANIS: Just to repeat, the police officer is saying, their defense is, “I didn’t know the law.”

A. DWIGHT PETTIT: Right. “I didn’t know the law,” and therefore, a derivative of what they call immunity— immunity from prosecution, immunity from civil liability— because of their ignorance of the law. This defense is being used and has gone all the way up to the Supreme Court. And the Supreme Court has upheld that as good defense. So it’s the courts, it’s the legislators, and it’s the politicians in terms of big cities and so forth, and small cities where all this police – is being tolerated.

STEPHEN JANIS: But, the citizens can’t use it. We can’t say we were ignorant. [crosstalk]

A. DWIGHT PETTIT: No, for us, it’s no defense whatsoever, but for the police—

STEPHEN JANIS: If you had a client who stole a car and said, “I didn’t know it was illegal.”

A. DWIGHT PETTIT: Right, you’d go to jail.

TAYA GRAHAM: So let me ask a fairly pointed question. What sort of institution can not only fail at its core mission, but flagrantly wreak havoc on a community, and yet still garner unwavering support from politicians, who supposedly represent the people that they harmed? What makes policing so singular and so above reproach, that even when it destroys hundreds of lives, the institution itself does not change? Maybe there’s a larger lesson here, an example of the precarious balance between maintaining a healthy democracy and empowering people to enforce arbitrary and often destructive laws.

If we can’t hold the people who have life and death power over us to account, what does that say about the civic health of this country? If a single person, empowered by the state can literally destroy hundreds of lives and the government that gave him that power says it’s not responsible, then are we really living in a government by and for the people? These are questions that must be answered in the wake of what we reported today, and it’s incumbent upon us as journalists to keep asking these critical questions, and we hope you who are watching will continue to push even further.

I want to thank my co-host, Stephen Janis. And remember, if you have evidence of police misconduct or brutality, please share it with us and we might be able to investigate. Please reach out to us either in the comments or message us at the Police Accountability Report on Facebook or @Eyesonpolice on Twitter. And of course, you can message me directly @Tayasbaltimore on Twitter or Facebook. And of course, please like and subscribe. I will be there in the comments section.

I’m your host Taya Graham. Thank you for joining me on the Police Accountability Report.