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OACDL Statement on Racial Injustice

The Ohio Association of Criminal Defense Lawyers expressly condemns the recent examples of police abuse against members of the black community. The senseless death of George Floyd in Minnesota at the hands of a police officer, with a history of disciplinary complaints, has once again brought the systemic racial disparity in the criminal justice system to the forefront of public discussion. 

The Ohio Association of Criminal Defense Lawyers is an organization comprised of over six hundred defense lawyers who are dedicated to the protection of individual rights and civil liberties as provided by the Bill of Rights. Moreover, the OACDL is prepared to join forces and work with other groups in demanding that all citizens are provided equal treatment, due process, and fundamental fairness when dealing with our justice system – starting with the initial encounter with a police officer and continuing through court hearings, trial, sentencing, and the appellate process.

We join the vast majority of our fellow citizens in demanding fundamental and systemic changes to our criminal justice system to finally address the racial disparities within the criminal justice system that have been permitted to fester for far too long. The violent killing of George Floyd at the hands of a law enforcement officer has crystalized the focus on this issue throughout the world.

The outrage that is being felt across the country is one of the greatest civil rights crises in our lifetime. As an organization, the OACDL is committed to educating both our members and the public about our most cherished constitutional rights and their role in a free and democratic society. Unfortunately, currently, our criminal justice system is not living up to the lofty expectations that these critical rights be equally and strongly enforced for all citizens.

There is no doubt, from the initial police encounter through the conclusion of the criminal justice process, African American citizens in our country are simply not receiving equal treatment under the law. We condemn, in the strongest possible terms, this racial disparity. Similarly, members of other minority groups, economically disadvantaged individuals, those suffering from mental health issues, and others viewed as powerless, face an incredible steep uphill battle in seeking fair and equal treatment.  The OACDL knows that the United States of America and the State of Ohio must do better, and we are committed making sure changes are implemented immediately.  

As defense lawyers, we observe these fundamental issues repeatedly, on a daily basis. In our role within the criminal justice system, we are on the front lines dealing with aftermath of police abuse of power and the struggle against systemic racism and injustice that unfortunately permeates our criminal justice system. Sadly, that also means we have front row seats to view the daily actions that cause our African American clients, friends, and brothers and sisters to despair in ever being truly treated equally.

There is hardly a criminal defense lawyer who has not had a client who was stopped for “driving while black” or questioned for looking “out of place” in a certain community (e.g. one they seemingly can’t afford to live in or where they “don’t belong.”) Sadly, while we fight for our clients’ rights and against these injustices in individual cases, the practices are so pervasive we have become a bit numb to them; we do not call them out as often and as loudly as we should. We must continue to point out and protest such injustices, and we cannot countenance biased and/or racist behavior by police officer or others in the criminal justice system.

OACDL members also know that courts, prosecutors, police departments, legislators, public policy makers, and indeed the public at large, can do better – much better.

Certain legal concepts desperately need to be reexamined and changed, as they set the tone for the initial police-citizen encounter and are rife with potential for abuse. Two of the most egregious of these concepts are “pretextual stops” and so-called “consensual encounters.”

These technical legal terms are literally the foundational building blocks for unwise, aggressive, and confrontational police actions, which have given rise to the mentality that many – particularly those in minority and poor communities – mistrust police in general and view them as being intent on harassing them. Indeed, these legal concepts do provide “bad apple” law enforcement officers carte blanche to engage in “legal” harassment.

Police must stop pushing the boundaries of the constitution to justify this sort of bad policework. Fundamentally, police need to be trained to not continually push the envelope with unacceptable behavior. Just because a court finds that the police behavior does not rise to the level of a constitutional violation does not mean the behavior is appropriate.

Our courts have held that whether or not an officer has improper motive for stopping a vehicle is irrelevant so long as he or she can come up with a valid “pretext” for making the stop. Typically, this means following a vehicle long enough to find a minor traffic violation or an insignificant equipment violation (like an air freshener hanging from the rearview mirror which allegedly might impair the driver’s view). So long as an officer can point to one of these “infractions,” the actual reason or motive underlying the officer’s actions is legally irrelevant.   

This leads to a double standard of policing in our state. Minor traffic or equipment violations that officers let slide in some communities (so long as the driver appears to be a member in good standing of that community) are enforced rigorously in others. The latter serves as a pretext for making a stop and questioning the citizen. Such questioning is typically aggressive and rarely relates to the infraction that provided the pretext for the stop. Frequently, the driver is ordered out of the vehicle and, more often than not, the officer will request the driver “voluntarily consent” to a search of the vehicle. Failure to give such consent often leads to a drug dog being called to the scene or further detention and escalation of the situation.

All this the above is technically “legal” and permitted based upon the pretextual stop; however, at a minimum, the public should demand to know how many such “fishing expeditions” occur in Ohio on a daily basis? Moreover, it should be mandatory that every law enforcement agency in Ohio compile this information, with racial and demographic information, about those who are subject to such pretext stops. Additionally, we must demand that public policy makers, legislators, and law enforcement officials thoroughly consider whether allowing, much less encouraging, officers to take advantage of the this “pretext stop” loophole is good (wise) policing.

Similarly, our courts have twisted the concept of a “consensual encounter” beyond the meaning that any citizen would recognize and created another loophole that officers use on a daily basis to harass citizens. Sadly, our appellate courts are to blame for creating this loophole by willfully ignoring the common person’s reality when confronted by an armed, uniformed police officer – whose requests you would be wise to view as an order if you do not want to be (at minimum) detrained and arrested.

The Constitution provides that all citizens should be free to go about his or her business, free from intrusion or interference by the government, and particularly free from being stopped by uniformed and armed police officers.

This concept of “consensual encounter” sounds good in theory but day in and day out defense lawyers, prosecutors and judges review reports and videos and hear testimony where this phrase is turned on its head. Confronted by an armed police officer who says “come here I want to talk to you,” or “stop” and demanding answers to questions like “what are you doing here,” “what is your name,” or a thousand other variations, no citizen actually believes he is free to go on about his business. African Americans, members of other minority groups, other folks subject to discriminatory police actions and folks without wealth, power and connections are justified in believing that exercising their right to be free from such intrusion (and harassment) will not met with an acknowledgment of their right to do so, but rather is likely to escalate to physical confrontation and arrest.

The OACDL calls upon the courts to review to application of the concepts of “pretextual stops” and “consensual encounters.” But, just as importantly, the OACDL calls upon legislators, policy makers and those in the law enforcement community in charge of training and policy to consider this - just because officers can get away with certain behavior without violating the Constitution, does not mean that behavior is right, fair, or wise. Promoting, encouraging, or merely allowing the unbridled use of pretextual stops and “consensual” engagement that are not truly consensual must stop.

The OACDL also calls upon defense lawyers and, more importantly, judges and prosecutors, to help eliminate the “bad apples” by calling out bad behavior early on and in particular focusing on false police reports and false or highly shaded testimony.

As defense attorneys OACDL members know many officers who do a good job, are honest, and are highly professional. Sadly, we also know of, and observe, pervasive abuses of power by law enforcement officers on a daily basis. If you ask any defense lawyer, they would likely be filled with stories about police officers who have misrepresented facts, stretched the truth, or even downright lied in order to justify their actions in some criminal matter.

The outrageous death of George Floyd in Minnesota, and practically every other incident that has led to the justifiable outrage being expressed by and on behalf of the black community, involves an attempt to cover-up such actions. Police reports containing false information are filed and false statements are made by police officers, not just the officer who was identified as the “bad apple.”

The simple truth is this – that happens all the time. As defense attorneys, we spend our days pushing back against those narratives and attempting to demonstrate the objective, unbiased truth. Yet even when law enforcement officers are forced to backtrack or acknowledge the misrepresentations, or even when their own video flat-out shows their reports and/or testimony to be false, there are never any consequences unless someone dies as a result.

The OACDL calls upon “good cops,” defense lawyers, prosecutors, and judges to stop being actively or passively complicit in these atrocities. When police reports or an officer’s assertions or testimony contain false and/or misleading information, it should be incumbent upon all parties to call out such behavior. Indeed, lawyers, including prosecutors and judges, should have an ethical duty report such actions.

Racially biased injustice is not limited to police / citizen encounters. To be clear – the police abuse of power that our country has recently observed in the George Floyd case in Minnesota and in some many other incidents throughout the country is unconscionable and needs to be clearly identified and condemned. However, the systemic inequalities and implicit racism that leads to these abuses of power by police are not just limited to the arrest phase of police-citizen encounters.

The OACDL believes that the entire criminal justice process needs to be reformed in order to address the inequities caused by racial bias.

While there are many positive and helpful ideas for meaningful reform being publicly discussed, we feel the following concepts need urgently addressed by lawmakers and those in a position of public authority:

1. Police-Citizen Encounters need to be more aggressively monitored for abuse of power and racial disparities. Rules of engagement in these encounters needs to be more defined and limited from current practices. Records of these encounters need to be kept, with video evidence, for review.
2. Officers need to be meaningfully disciplined for unacceptable behavior, especially including false or misleading narrative reports. Failing to use available body cams or other recording technology must be grounds for significant discipline.
3. Prosecutors should have a mandatory duty to report offices when they discover materially misleading information in police narratives or testimony.

There are a litany of additional reforms that will assist our criminal justice system move in the right direction – additional bodycams, reducing or eliminating qualified immunity, additional training, civilian conduct boards, limits on use of force and no-knock warrants, revamping the hiring practices of police departments – but what is clear is that now is the time to act. The OACDL stands ready to lend our voice and unique perspective to addressing these critically important issues.

To sum it up, police have one of the most powerful jobs in the county — literally they have the power of life and death at their fingertips. With such great power comes great responsibility. Just as society supports our police when they selflessly place themselves above others to protect society, so too must our society come together in condemnation of the police when horrific injustices occur, like what occurred to George Floyd. Racism is one of the greatest scourges in our country today, and it is at its most evil and horrific when wielded through the vast power of law enforcement and the criminal justice system. Today, we emphatically say enough is enough – we all must address this head on, so that all Americans can realize our potential to live together in full equality under the law.

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OACDL Contact Information:

Susan Carr, OACDL Executive Director: susan@oacdl.org

Blaise Katter, OACDL Public Policy Director: blaisekatterlaw@gmail.com