Buffalo, New York, police recently shoved Martin Gugino, a 75-year-old man who was protesting the murder of George Floyd, knocking Mr. Gugino to the ground and causing a head injury that immediately began to bleed and required hospitalization. Then a gang of officers callously walked past Mr. Gugino as he was helplessly flattened on the ground, bleeding. These officers offered Mr. Gugino no medical assistance, and not even basic humanity.
The Buffalo Police Department suspended two of the officers involved. In response to those suspensions, 57 officers who were members of the police department’s ‘riot control’ unit resigned in protest of this basic and minimal oversight. The plain fact is that Buffalo police officers, like many law enforcement officers around the country, were not used to being supervised. The Code of Silence in law enforcement starts at the top of each department in which it is rampant. So when the department’s command staff eventually decide to make even meager or meek attempts at oversight, after they have created and perpetuated a culture in which egregious police misconduct goes without recourse or accountability, their subordinate officers can be expected to be up-in-arms and basically have a tantrum, which is what those 57 Buffalo police officers did.
The culture of every law enforcement agency is always set at the top. Unfortunately, this institutionalized tolerance of abuse is all too common. Even Senator Kamala Harris, when she was Attorney General of the State of California, vociferously defended police who abuse people.
In one of our cases, Harrison (“Harry”) Orr, a 76-year-old military veteran, was pulled over by California Highway Patrol officers for driving too slowly in the fast lane of the freeway. The officers thought Harry was drunk, because his speech was slurred. Harry explained to the officers that he had had a brain stem stroke, which caused him to have slurred speech and problems with his balance, and he was not drunk. Instead of letting Harry go, which any reasonable officer would do, the officers insisted on arresting Harry and taking him to their police station to be assessed by a drug recognition expert (“DRE”). Harry readily agreed to accompany the officers to the station, but told them he needed to use his cane for balance. The officers insisted that Harry must be handcuffed behind his back, and could not use his cane. Harry insisted that the officers provide him with basic accommodation of his disability, and allow him to use his cane. In response, CHP Officer Terrence Plumb forcefully punched Harry in the stomach while his partner did a leg sweep, knocking Harry to the ground. The officers took Harry to their station to be assessed by the DRE expert, who confirmed that Harry was not intoxicated. Again, the officers should have let Harry go. Instead, they took Harry to jail, where he spent several hours before he was released. Then the CHP officers requested that Harry be criminally prosecuted for resisting them.
There was no recording of the incident, because — in blatant violation of CHP policy — the CHP officers left their body-worn recorders in their cars, and brought Harry to an area outside the view of their patrol car video recorders, so what they did to him would not be seen. Then Plumb omitted his unconstitutional punch from his official report of the incident. And his partner followed the Code of Silence and also failed to report the use of force.
Michael and I filed a civil rights case for Harry in federal court. Kamala Harris fought the case tooth and nail, defending the CHP officers, saying everything they did was appropriate. Ms. Harris also asked the court to let the CHP officers get off with no accountability based on the judge-created defense of qualified immunity, where courts say victims of police misconduct are not allowed to hold their perpetrators accountable, even for violations of their constitutional rights, unless some other court has already been presented with a similar set of facts and said the conduct violated the constitution. Thankfully, the court denied Kamala Harris’s attempt to have the case thrown out of court. Then Ms. Harris and the CHP continued to fight the case, all the way through trial, which they lost, and through an appeal to the Ninth Circuit Court of Appeals, which they also lost.
Kamala Harris and the CHP fought and delayed so they did not pay Harry Orr for the verdict and judgment he won against them in court, until five years after the CHP had abused him. By that time, Harry was 81 years old.
Harry’s case makes clear that even people who might seem like they want to create positive change in law enforcement can be a part of the problem. Kamala Harris should have done the right thing by Harry from the start and accepted responsibility for her CHP officers’ abuse of him, and not required years of litigation to do so. When people in charge cover for, and make excuses for, officers who abuse the awesome power and authority we give them, they perpetuate the institutionalized police abuse that has been a problem in this country for decades.
Michael and I have great respect for the hundreds of thousands of police officers throughout this country who do their jobs professionally, and with honor, every day. But police officers are human, and some of them break the law, and as we all are seeing, some of them are even murderers. And many of them devote themselves to the Code of Silence and cover up for the lawbreakers and murderers among them. When police departments and courts do not hold those officers accountable, they send a message to all officers that breaking the law, including the highest law in the land – the United States Constitution – is okay. It’s not okay, and we all have a responsibility to make that clear.