Jason Harrison Hearing – January 22, 2021, noon Eastern

Transcript: Hearing on the Case of Jason Harrison

SPEAKERS

  • Rapporteur Ria Julien
  • Commissioner Mr. Max Boqwana
  • Commissioner Judge Peter Herbert, OBE
  • Mr. Geoff Henley, attorney for the Harrison family
  • Audio from a CNN video on the case of Jason Harrison

 

Ria Julien  00:34

Good morning, everyone, and good day. It is noon Eastern Standard Time. Welcome to the hearings of the International Commission of Inquiry on Systemic Racist Police Violence against People of African Descent in the United States. These hearings are a process by which witnesses can present accounts of the unjustified killings and maimings of Black people, by police officers in the United States before an international panel of human rights experts. We now begin the hearing in the case of Jason Harrison. My name is Ria Julian. I am the rapporteur for this hearing. Presiding over the hearing today is Commissioner Max Boqwana of South Africa, and Commissioner Peter Herbert of the UK and Kenya. The witnesses for this hearing, the witness rather for this hearing, is attorney Geoff Henley. There will be 50 minutes for this hearing. The witness will testify followed by a period of questions from commissioners, I will call time at the 30 minute mark, and at the 45 minute mark, please excuse my interruptions. Commissioners Boqwana and Herbert I now present to you your first witness. Mr. Geoff Henley,

Geoff Henley  01:53

Commissioners,

Ria Julien  01:54

Mr. Henley, if I could kindly swear you in first, and there’s also a video that’s going to be played at the top of your presentation. Mr. Henley, please confirm your name.

Geoff Henley  02:06

Geoff Henley.

Ria Julien  02:08

Do you promise that your testimony to the Commission of Inquiry will be true to the best of your knowledge and belief?

Geoff Henley  02:13

Absolutely.

Ria Julien  02:15

You may begin. Thank you.

Geoff Henley  02:17

So before I begin, we’re going to play an excerpt from video that actually went, it was on CNN and a variety of other places. We, during the litigation, the footage was probably more like about 25 minutes, but really these 30 seconds of footage amply tell this horrific tragedy, and the CNN commentators elaborate a little bit more on upon it.

Video audio  02:52

Tonight another body cam video is putting a spotlight on deadly police force and sparking anger. The family of Jason Harrison, a mentally ill man shot dead by to Dallas officers, say they want the video to spark reforms and how police interact with the mentally ill. The day that Jason Harrison died, his mother had called police for help getting into the hospital. Now we want to warn you the video is very graphic and obviously disturbing to watch. We’ll let you decide what to make of it. Randy Kay has more. Two Dallas police officers arriving for what they expect will be a routine disturbance call. Other officers had been to this home dozens of times before. This time would be different. And it’s all about to be captured on the officer’s body camera.

Shirley Harrison answers the door. She’d called police about her son Jason. He’s bipolar, schizophrenic and off his medication. She’s trying to get him to the hospital. As Shirley walks out, police notice a screwdriver and her son Jason’s hand. What happens next is hard to watch. Within 10 seconds of the front door being opened, Jason Harrison lay dying in his own driveway shot at least five times twice in the back by officers John Rogers and Andrew Hutchins, who was wearing the body camera. His family says Jason hadn’t committed any crime, nor did he likely understand why officers were even there. What do you think, the police that they could have done differently? They should not have been yelling orders of the top because you’ve got someone that’s mental that they’re already confused. Now you stick a gun in their face and you yell at them.

When Shirley Harrison had called 911 for help. She told them son was mentally ill and needed to get to a hospital. They didn’t take him to Parkland. They took him to the morgue. So why did the officers open fire? Dallas police wouldn’t talk to us but the attorney for the officers did. Was there any other option other than deadly force in this case? No, there’s not because this is a deadly force encounter and what they when you respond to lethal force, you respond to that with lethal force. A taser is a less lethal item.

Soon after the shooting, the officers signed affidavits about what happened. Both say Jason Harrison lunged at them. But here’s the thing. Officer Hutchins says he lunged at officer Rogers first and raised the screwdriver in the air. Officer Rogers says he lunged at officer Hutchins first. Both officers agreed, though that the screwdriver could have been used as a deadly puncture weapon. With Jason bleeding out in the driveway backup arrives. Listen as officer Hutchins tries to explain to the others why they fired: He was in the doorway. He had a screwdriver. We came at us behind, so we had to shoot.  But did he?

Watch again. Harrison’s family attorney says if Jason had really lunged at the officer, you would have seen his whole body fill the screen of the body camera. He didn’t lunge, he didn’t stab, he didn’t jab, there was no thrust of Zorro move. And what about after the shooting, the officers continue to yell at him to drop his weapon as he lay motionless. Listen.

After several minutes, Officer Rogers gets close enough to remove the screwdriver from the victim’s hand and then puts his hands behind his back, handcuffed. Jason Harrison’s mother had specifically requested officers who were trained to deal with the mentally ill answer this call. The attorney for these officers tell us they do have that training. About five and a half minutes after the shooting. The ambulance arrives, but it was too late. Just 38, Jason Harrison was already dead.

Geoff Henley  07:23

Obviously, the footage does far more justice to this gross act of injustice than anything a lawyer could ever recount. And June of that year, Shirley Marshall called the Dallas Police Department, she called 911 as she had done literally hundreds of times before when he was off his meds and typically Dallas Fire and Emergency crews would come out and they would transport him to either Timberline which is a mental health facility here or Parkland Hospital. And this had occurred as recent as even a couple of months before. He had been off his meds, and she had told the 911 operator as much during her phone call. He had done so often before and as a result, she was anticipating help. And quite the contrary, she got her son shot in her very own driveway. We filed suit virtually immediately. The case was decided against us by Judge Godbey on their motion for summary judgment.

And he determined that the video that you just saw was the beginning and the end of the case that it pretty much established that these two officers had reason to believe of a threat of imminent bodily harm. Thus, you know, excusing the application of deadly force at the time. We urged quite the contrary, because the whole body of of excessive law of excessive force is as you probably know, at least in the United States is hotly contested. You literally have about 60,000 different citations in in the in Westlaw or LexisNexis should you conduct a search and these cases always hinge on the most minute of facts. The city in this particular case literally had the body cam portion, broken down frame by frame and in a second of frame you can typically get 30 stills so we literally were fighting over things like was Jason’s shirt tail coming up, to indicate the elevation or lack of elevation of the screwdriver. I had contended throughout that the, that there was a fact issue concerning the movement, because he wasn’t moving into the body cam, either for Rogers or for Hutchins. And Judge Godbey, you know, clearly disagreed. The things that are so important to know regarding the state of the law in the United States concerning excessive force are a handful of things.

Number one, despite police policy, like in this one, Dallas Police Department actually has a an explicit policy that says you should use lesser means of force than deadly force if opportunity provides. And as we maintained in this litigation, and as I routinely maintain, in these cases, as the cops are the architects of the situations, they are typically the ones who control the time, the space, the area of the engagement. In this particular case, of course, we knew the police knocked on the door, they’re there, they’re the ones who were setting the spacing from the beginning. And then of course, when, when Jason appeared in the doorway holding the screwdriver, the dynamic changed. But what was important to notice, neither one of those officers backed up, gave him some space, tried to talk him off the ledge instead of, you know, raising the tempo of the engagement. And the problem, at least in the Fifth Circuit. And in a handful of other circuits, there’s, there’s actually a division on the law in the United States over this particular thing. And I don’t think that the Supremes are ever going to take this up, but they might, and that is in the Fifth Circuit, in a handful of other circuits. If the officer has at the very instant, that deadly force is applied, has a basis, then he may do so, but even if the officer is the one who lit the fuse for the, for the use of deadly force.

And so as a result, I find myself frequently arguing that they bootstrap the use of deadly force by creating, you know, stumbling into a situation or overreacting about some act that may or may not precipitate another reaction by the individual who they are supposed to help or or, indeed, a criminal suspect. That is the officers can absolutely rely upon vindication in the form of, either, either in the form of determining that there was either qualified immunity, or that there was no constitutional violations. Because at that moment in time, that deadly force that is the, the very instant, the nanosecond when the trigger is squeezed, or when some other act that is employed for deadly force, as long as the officer at that point in time is in some sort of jeopardy, then he is fully excused irrespective if what it was that he did leading up to this instance. And this particular case, they had Jason Harrison trapped, you know, because again, this is a man who’s schizophrenic, and he’s on his own front porch.

Now, I did mention in the statement that I made, but I had actually litigated another similar case involving a young Hispanic male. But this involved the Garland Police Department about eight years before. And in that case, it was a similar situation the mother had called 911, saying that her child, in this case, he was around 15 years old, was suicidal. But he had a knife, and he had a knife and he was in his own bedroom, mind you, his own bedroom. And the officer who came out to the scene was by himself, walked into the house, and this kid is in his own bedroom and he’s just sort of gesturing mildly against his own belly with the what was a garden variety statement. And immediately, the officer jumped into this combat mode with you know, telling them drop the knife, drop the knife, suete el cochillo, in both English and Spanish to do this, and this one is a, you know, a mentally ill teenage boy. And he kind of kicked the door closed, like, you know, get out of my room and this is his own bedroom. And then a very short engagement happened, where the where the kid turns and kind of faces them, and then the officer discharges his gun about three or four times center mass. And so what absolutely has happened in these instances and they still continue to happen, is ignoring their training, ignoring the circumstances surrounding an engagement, the officers get excused. Because at the moment that they’ve kind of, you know, rattled their prey or or or, or agitated the individual, if that person does something that is remotely threatening, then there’s no violation.

As we hinted at, I mean, I know that the Commission is, naturally has asked, Will you know, how much express or explicit racism did you see in this instance? I have to tell you, it happened so fast for me, I don’t know that I could I feel as comfortable even making such a statement. What I will tell you, though, is about some other litigation I’ve had involving the Dallas police department where there absolutely was express explicit intolerance, intolerance. one instance, it was a white subject, this was moronic, what took place, I couldn’t believe that a cop would even think that this is, you know, even conceivable, but because the the, my client had failed to defend the honor of his girlfriend by confronting his friend about an allegation. The cop took it upon himself to punch him in the rib cage four times while he’s handcuffed and calling him a faggot, a coward. And I think the I think a pussy as well, I definitely remember the fact that I’m a coward. And so in that particular instance, we didn’t have a body cam, but it’s interestingly enough, we did have the witnesses of three other officers who are on a different shift. And they actually, that’s the only case and I probably had, I’ve reviewed, probably 150, 200 excessive force cases that have probably filed suit in about 15. And had had probably about four or five of them thrown out on summary judgment. So you know, we’re accustomed to, you know, sifting through these cases, a great deal. But in that case, and I think that’s pretty much one of the few cases I’ve ever had, where I literally had co officers, in essence, be the principal accusers of that officer. But sad to say, in that instance, all three of those officers failed or suffered recriminations from other officers. They were called, quote, “squirrels.” They were had trash thrown in their mailbox. So as the previous witness indicated, yes, there will be backlash against people who come forward against other officers.

One other thing that is absolutely always the case, when I have an excessive force case, they usually fall in one of two categories. One worry that they circle the wagons around the cop or management and the brass, in essence, throw him under the bus because it’s just so obvious, so clear, that no one can possibly attempt to exonerate him. But one group always stands behind the police officer, pretty much no matter how bad the facts are, and that’s the police associations. They absolutely have no compunction about attempting to exonerate even the most egregious of acts, that everything always comes down to, well, you weren’t in his shoes at that moment in time, even if there’s no threat, no credible threat, if the person’s unarmed. And irrespective of what the relationship is, they will exonerate.

And why does that matter? Because civic leaders, listen to those unions. Civic leaders know that they cannot get elected in many instances if they don’t have the backing of the police union. And the officers and the the brass who lead them recognize too, that they cannot manage these officers when they’re dealing with a really combative union. Brown, Chief David Brown who made, you know, became a nationwide figure following the shootings here in Dallas, right before, just months before all the riots that resulted in the death of those five officers was pretty much about to get swept out of office because the Dallas Police Association was so was so antagonistic, they were making his job virtually impossible. So there there are absolute tremendous political and social power that is often wielded, to exonerate and protect these officers. And it comes, it comes to play in just about every instance. Now, in this particular case, neither Andrew Hutchins or John Rogers was prosecuted, I never anticipated in this incident in that instance, that the officers would be prosecuted.

Now, I have had other cases where they have, and I will tell you, that prosecution, and I don’t know that this is going to be something that everybody’s going to like, but prosecution is frequently kind of a mixed blessing. Because for the civil case, it often results in an abatement. And so I’ve had literally civil cases that have sat dormant for years, while a lackluster prosecution is going forward. And when I mean, going forward, they frequently are operated by prosecutors who are not necessarily eager to take those cases on, they’re not the same thing as a really nasty, nasty homicide, those cops frequently don’t get pen time, and they’re not the kind of cases that really excite a rank and file prosecutor, I was a prosecutor for four years from 97 to 2001. And every time I had a cop case, and I had some I prosecuted, border, border patrol agents and County Sheriff’s and some other cops for various things, and you always got blowback. And, and some people, that’s just, they don’t want to do it, you know, and you’re not going to get, you know, a big smacking, long pen time trip that, you know, you can kind of hang on your wall and go, you know, we got another one. And so, as a result, those prosecutions, you know, I’m not always as excited as the families I represent frequently are when somebody does get looked at criminally.

The other thing, of course, too, is one of the reasons why the prosecutors are not terribly excited, is, as you’ve probably all seen, they frequently result in acquittals or hung juries, Freddie Gray, of course, that was an awful, awful, awful fact pattern. And what happens, it ends it ended horribly and, and putting people through those steps can be really bad. Now, in one case, I had the Walker vs Wilburn case, we literally put into evidence that the officer had been convicted of recklessly shooting Calvin Walker, and the jury still hung up on that. I know the numbers, I can’t tell you, but they were not very good at all. And so it’s, you know, this resistance to hold officers accountable, runs up and down the ladder, from the very highest of offices to the very lowest of individuals who are on the street, because these are the people who will sit in juries, and these are the people who will actually come forward. And there are absolutely racial components to so many of these cases. And there’s always a lot of tension between these two parties, between law enforcement and folks that they encounter.

Shirley Marshall, when she picked up the phone really had no expectation that there was going to be anything like that happening. She had literally, I don’t know if you saw it in the footage, but she had in her personal possession her purse. She was ready to travel. She was thinking that you know, we’re going to go to Parkland. He’s going to get some psychotropic drugs, and you know, in eight to 10 hours her son’s going to be, you know, even keel again. And, unfortunately, that clearly did not happen. In terms of things that I will tell you for reform, the most obvious the biggest one for me I see as a civil practitioner is modification or outright destruction of the state of qualified immunity law it as it sits in the United States. It is a historical, it is absolutely judge made law that creates an absurd burden of proof on plaintiffs and thus results in the stagnation of the law, such that officers, police departments don’t have to change with the times. When these body cams first started coming out, when the dash cams and greater surveillance started coming out, people started talking about, wow, these police departments have gotten worse. No, they hadn’t gotten worse. We just now had the means to see it. And indeed, in likelihood, there’s actually been some reduction in in areas where there has been greater surveillance as you can imagine, but they present such horrifying, stark images of people dying or getting beaten on camera. And those are the things that absolutely create tremendous, as you can understand, understandably, recognized expectations in society that look, we don’t want officers doing these things under our, you know, with with our with our blessing.

And the problem with qualified immunity is, in order for a constitutional violation to be found, whatever it is that the officer is doing, it has to be clearly established, that that is prohibited, and how do they get there? That is, in essence, the way it comes about is the only way that you can consider something clearly established is this, if a controlling judiciary has so found, and so if a controlling judiciary, whether it’s the Supreme Court, or my case, the Fifth Circuit, which governs Texas, Mississippi and Louisiana, doesn’t rule on it, then it doesn’t matter what the Ninth Circuit or the Second Circuit or the Fourth Circuit did, or the 10th circuit, which you know, is Oklahoma in the Midwest. And so as a result, grotesque abuses can occur. routinely, things like new technologies, like when the taser first came out years ago, people were getting scorched to death, electrocuted, having heart attacks, and it wasn’t, those cases didn’t become actionable for years, because the prohibitions were not clearly established. And as several people have pointed out, this is an ahistorical, judge created, rule that did not exist at the time that section 1983, which is the procedural statute that we bring these Fourth Amendment claims to bear existed. This was something that came about later on, because Judge Rehnquist and a variety of other people thought, well, there are just too many of these cases, we have to do something to to prevent this from what going forward. We have a lot of work to do in this country, and I assume abroad. Now, I will tell you this. During that Walker litigation I had referenced earlier, I deposed chief Brown, and one of the things that sometimes you had these kind of freewheeling policy discussions about a variety of things. And one of the things I’d pointed out was, wait a second, these shootings, they don’t happen in the UK and West Germany, or Germany, and in France, it’s only the United States, because they’re just massive disparities, massive. And his reply was quick. His reply was very fast. And he said, That’s because their citizens are prohibited from having handguns. And so law enforcement here in the United States, operate on the premise that you know what, that guy could be armed, that guy could have a deadly and so it accelerates this tendency to reach for and employ deadly force. These are stark facts. And I welcome your questions.

Ria Julien  29:37

Thank you, Mr. Henley. I will just mark that it is half past the hour now. And we have 20 minutes for questions. I’ll turn it over to the commissioners. Thank you.

Judge Peter Herbert, OBE  29:48

Thank you, Mr. Henley. Max, do you want to go first on this occasion?

Max Boqwana  29:52

No, no, no. Thanks, Peter. You know, Mr. Henley, thank you very much for for the passionate presentation of this matter. But you know, I really want to, to say this, for me is pure barbarism. It doesn’t have to be clothed with some legalese. And, and I think it’s reminiscent of the slave patrols. Here is a mother in distress, calling for help. And, and this police know, they’re going to help the mother who’s got a son that has got a mental disease. I mean, there is absolutely very clearly nothing that this young chap was doing to threaten the police. To shoot five times, for me is pure barbarism. This is classical murder. So I, and I dare say it’s a matter that if it was a, a white family, I think they will have dealt with this with this young person very differently. And because I think their approach is simple that they are dealing within a nonhuman. And that’s come to the second point that you are raising the the condition of Blackness in the United States and even ideologically amongst many of the white stripes, and that they are dealing with non humans, they are dealing with outsiders. So I don’t have any difficulty in saying this is one of those racial profiling cases. And I’m not sure what’s your comment on that?

Geoff Henley  31:51

I don’t have a comment. I mean, I mean, not nothing. I can’t say anything that’s terribly profound. I mean, I can’t sit in anybody’s specific skin. I do. I do believe one thing, though, that there is a there is a tendency, I think, for people, I mean, there is a tendency for people to treat others differently. There are no two ways about it. And, and I absolutely think, and I’ve seen this time and time again, in cases where there’s something that happens in the first interaction between an officer and a subject. And, and and I always have in the office, I’ll tell people, it’s like, this is when it got bad. This is when it turned. Because when you first hear Hutchins and Rogers, they both say, you know, Hey, how’s it going man, or something like that, but then they just immediately fixed. I mean, and this is all instantaneous. I mean, this is all, you know, you could this is the kind of thing that Olympic swimmers get measured by, like, you know, not a second, not a hundredth of seconds, but literally 1000th of a second type inquiries. And it goes from zero to 60, almost immediately.

And what I would easily imagine is that that had been a white kid, that it probably would not have gone that fast before they’re already drawn, they’re finding, that, that that sense of, Hey, I better go ahead and put him down, that they might have been more inclined to step back, walk away, or maybe not, you know, move back a little bit. Now, interestingly enough, about this same time, there was another case, that happened here locally, and this was actually a white subject who was in a chair. And he was mentally ill too. And in that instance, the officer walked up and the mentally ill guy just kind of stood up, and the officers shot him, just and he was, he didn’t even, didn’t even have an object in his hand. Now, in that particular case, he was fired. And he was charged criminally. But as indicated before, the police union still circled around him asserting that, you know, it was a danger, you know, and and the fact is, is the only reason why the world knew that there was no danger is because there happened to be a surveillance camera on a neighbor’s house. And so one of the things that happens in these cases in Dallas, in particular, is the narrative changes. In Dallas, there, the officers are actually allowed three days before they have to commit to a written statement, and that allows them to view the videotape and, you know, frame the narrative around it if they want. Whereas if you’re a witness at that scene, they’re gonna drag you down to the station right there and say, you know what you see, and they’re gonna pull out all that stuff without the benefit of a police union lawyer, and without the benefit of seeing a body cam so that you could, you know, change your narrative.

So, you know, in terms of, of the reaction, yeah, I can easily imagine them being certainly less sensitive. Because, you know, cops don’t, are not sensitive people purely and simply. And one of the things that frequently happens, I’ve had about three of these mental health cases now. And, and they frankly, they’ve all ended poorly. They they’ve resulted in the death of somebody, but it’s, it’s been and one involves summary judgment granted,  actually two of the three involved grants of summary judgment, we’re presently appealing one of them. And that is the cops are ill equipped for these things. And but the paramedics will assert and the cops will assert too, and it’s never really quite clear, who’s who’s got the the leadership role at the scene, that before they’ll let the paramedics do their job. The cops need to, you know, secure the area. Well, you know, shooting them is that isn’t the way that we hope that that will happen. You I think you said that you had another question that that related?

Max Boqwana  36:25

Yes, no, that’s fine. Peter, will proceed. Thanks.

Judge Peter Herbert, OBE  36:31

Thank you. I just wanted to pick up a couple of things on and to reflect back on the discussion. I think one previous contributor, said that is the case of a few bad apples. And I think that’s a that’s a analysis that we’ve rejected for many, many years in in Europe. This is so prevalent that the level of police killings and abuse cannot be down to just a few bad apples. But it’s actually far more widespread. And that’s what I’m hearing in this hearing. On the instant case, I should say that I’ve sat and just as a comparable, comparable set of facts. I sat on a number of Ministry of Health, forensic homicide inquiries where a person with was mentally ill has either killed somebody or been killed. It is very rare, although it does happen, for the police to kill someone and I agree Mr. Henley with your analysis that the thing which sets the United States apart from the rest of the supposed developed world, is the, this the presumption that you’re dealing with armed civilians who pose a threat. And I think there’s nothing more dangerous for civilians than having to face on police officers, given their lack of accountability, as we’ve heard acting with impunity, police unions, and the fact that the first, the first encounter with anything, their training flies out the window and ceases to have any effect. But there is also something that I would say that the presumption that we have from the pan African community is that unless race is disproved, it is likely to be a factor. How much a factor, but it is very rare, if if exceptionally, it is never a factor in a in the entire reaction of a person of color, and a police officer in these communities. And that goes to the United Kingdom as well.

To give me one example, and I’d ask you this, is that is one of the solutions and one of the the toolbox of solutions which must be implemented across the US, for anybody who is mentally ill the last people you call is a police officer. And there must be a way to circumvent the police by calling mental health professionals who if they deem it necessary, can call upon police officers to attend. But the first response, the first responders, I think there’s a term you use, must always be people who are trained mental health professionals who are not armed. And for me that if that was adopted, it would at least reduce, it wouldn’t eliminate, but it will reduce the the probability that these completely execution style police officers are going to do what you should never do, which is shout at a person who was mentally ill. That is one of the basic facts that you never do, you de escalate, you walk away, you don’t shout, and the place is safe. But really, I’m sure that mom and many many others would wish that they just simply taken their son or their daughter or whoever to the police to the to the mental health institution and not bother to call the police.

Geoff Henley  39:49

So, a couple things, all officers in Dallas and frankly, I’ve encountered this just about every in other cases and litigation from different law enforcement agencies, you know, they do get training. And in some instances, many hours in the academy, they’re supposed to get 40 hours of Mental Health Training in terms of identifying different kinds of disorders, different symptomology. And, and they make a big deal of this during litigation. I mean, I’ve got hours and hours of testimony in this…case, where they’re talking about, we’re relying on this and but that, but then they’ll frequently assert that, well, it wasn’t one of those things, because, you know, which, which might necessitate some other course of action. And so they will frequently assert that, yes, they do have training. Now, Dallas, and the city of San Antonio, which apparently was a little bit more proactive on this has adopted, of several years ago, a task force that will respond and the officers, there’s still police officers, but they’re plainclothes type detectives who are more accustomed to mental health situations, they do carry firearms, but, but their whole mantra is, as you indicated, it’s the classic, you know, de escalate using time and space. Because, you know, again, shows of force, you know, create, you know, it’s the, it’s the cat that’s cornered and you know, it arches, its back, and all of a sudden wants to start flailing and then is getting shot and say, you know, this, whereas if you if the cat just kind of sat there, then nothing would happen.

And, and it’s absolutely, and this is where I do think race does play a greater role, and that is, people are going to react far more adversely, if this were a white person. There’s just going to be in terms of the powers that be, the neighbors. I mean, I live in a rich neighborhood, I live, you know, I live in probably a, you know, the 1% neighborhood in Dallas, it’s actually within this, well within the city limits, but it’s actually its own township, and something like this would never happen in Highland Park. It just wouldn’t. You know, in the neighborhood I live in, when I hear a police department, when I hear sirens and an ambulance, I always think well, okay, I guess some elderly lady must have slipped in the in the, in the shower, and they’re or they’re carting somebody off to, you know, take them to, you know, to, to the hospital, because they’re having a cardiac arrest, I don’t assume that you know, that there’s a break in or that there’s even some small bond violent incident. And, and the dynamic, the interaction between the police is radically different as a result of it. You know, I know that there’s this, there was a suggestion, and we hear this one frequently, about trying to get police officers to live in, in the neighborhoods or communities that they police. Well, in Dallas, that just absolutely really hasn’t happened. In fact, there’s actually a tendency by the officers to move outward, there’s actually a pretty large community of them who live in what’s pretty much a quasi-rural area. And that is a good, you know, they can get more, have a bigger patch of land and, and some of those other things, as opposed to being, you know, in a community where, where they would be policing. I mean, I think, you know, as with any social or political problem, it’s always about power. It’s always about money, and who has it and who can apply the resources that they need to, you know, to effect change. The previous speaker talked about, you know, tapping into the police union funds, and that’s actually a pretty creative idea in terms of reducing moral hazard.

One thing that happens in litigation frequently, and I will get this. I will have veiled threats made by city attorneys that you know, what, if this guy gets convicted, there may not be indemnity, because even though the cities do have contractual indemnity, they have exceptions for criminal acts. And it’s like, you know, there’s this kind of game that they’ll play like, Well, you know, we do indemnify excessive force, but we don’t indemnify criminal acts. It’s like, Wait a second. This man was shot. intentionally, knowingly and recklessly in the course and scope of his employment and under the color of law. And you’re going to assert that? Well, you know, as long as you don’t call it criminal, we’ll go ahead and pay. And of course, you know, that that’s the kind of thing that they’ll do to try, you know, as a negotiating tactic to, you know, make you think twice about an offer that may be presently made. It has to, you know, you have to pull the levers, it has to it’s, you know, protests are nice, and they’re useful for bringing up public awareness. But at least for excessive force, its most of its going to have to happen in the judiciary. I do not see any acts of Congress, much less in the state statutes, and certainly no city ordinances that are going to come forward in this area, it’s going to have to be in the realm of, you know, altering qualified immunity and addressing Fourth Amendment precedents.

Max Boqwana  46:07

But what is the continued justification for this immunity law, because it’s quite clearly it’s providing impunity. And one can guess, say, looking at the statistics of the murders that we’re talking about, or even the statistics of the prisoners in the United States, that to the extent that this is mainly mainly applicable to the people of color, there seems to be no enthusiasm to tamper with it.

Geoff Henley  46:41

So we’ve all we’ve all as lawyers, we’ve all heard at some point in time, ignorance of the law is no defense. Right? You know, it was one of the first things that you learn, and it’s so axiomatic that you don’t ever talk about well, qualified immunity is actually one of the areas where ignorance of the law actually kind of is a defense. And so, if and the point is, is unless it’s just been applied uniformly, then it’s not going to be, you know, considered controlling? Well, here’s the problem, of course, or the origin of what it is that you’re talking about, kind of goes back to Graham vs Connor, where the dicta that Rehnquist had in there was, you know, officers have to make split second decisions, you know, instant in fast, tense, often changing circumstances. And the whole idea is that the odds that the judge is not going to second guess officer conduct on the street from the safety and, you know, the solace of his chambers. Qualified immunity provides an overlay on that, which says, look, not only do we have to talk about what the officer is sort of objectively encountering on the fast, maybe, movement on the street, but we need to sit there and take into account what the law is and what other people may what other tribunals have said about some specific kind of application of force or some specific behavior. And, and the position that the courts take is, they’re not going that any officer is not the you know — Mr. Sells had talked about suing the police for negligence. Negligence does not matter. You absolutely do not, I don’t ever plead negligence in any kind of pleading out because there is a battery. So many hundreds of cases and say, man, we’re not we’re not. There is no actionable claim for negligence against a police officer in an excessive force case, you have to show gross deviations or knowing violations of some particular standard of care. So it’s practically a criminal standard. Because the rationale, which which I think you’re getting at, Commissioner is they the courts are not wanting to incessantly second guess, the officers judgment on the street. It’s tremendously deferential, and it’s overly so.

Ria Julien  49:41

Commissioners, I just want to call time we’re approaching the 12:50 mark, we have about a minute more. If there’s any thing in closing you’d like to ask.

Max Boqwana  49:51

I have I just have something in closing but I think if Peter can ask a question.

Judge Peter Herbert, OBE  49:59

Just the fact that you mentioned, Mr. Henley that you know, there is best practice in other police forces in other parts of the world, I think Finland, Norway, even France, Germany have far lower rates of police homicide than the United States. And you made the analogy about the fact that they do not expect civilians to be armed. And I just want to you know, that the phrase, defund the police. But actually, what also happened to us, as far as from an outsider’s perspective, is the police should be disarmed. And if that means disarming civilians, well, so be it. But you’re — the level of killings with firearms, it’s like a war zone viewed from outside. And I really think that there has to be in your making a link, it would appear between the arming of civilians and the frequency with which firearms are licensed in the US, and the way in which the police even justify some of some of that perception go into situations expecting to have an armed civilian to deal with.

Geoff Henley  51:00

There is a massive, I mean, there there, there is absolutely no comparison. It’s been a few years since I’ve looked at those tables, but whereas we have hundreds of shootings a year, nationwide, you know, the UK might have two or three. I mean, we’re talking about staggering differences, you know, wholly beyond comparison. And I’ll never forget being on a trip to Europe years ago, seeing a fist fight in Frankfurt. And it how I was astounded at how deferential those German police officers were to the to the belligerents, and, you know, they weren’t they weren’t pulling out batons, like I would have imagined I would take place in Dallas, or even New York. You know, as far as disarming the the citizenry or the police in the United States, good luck with that one. This is a this is a nation that is very proud of its guns. I don’t actually have a gun. I like i said i’ve sometimes debated it. It’s like, you know, because I think everybody has been intoxicated by the that sense of rush that you get when you pull the trigger of a firearm, but they are, they are absolutely dangerous to have in your home. But there is such a religious component to the possession, use, deployment and brandishing of a firearm in this country. I mean, we had some jackass in the US Congress was trying to take a firearm into the floor of the of the car of the House of Representatives just yesterday. So the idea of disarming the police or the or the citizenry or both, that might that actually might result in one of those rare instances of unity here in the United States from disparate links.

Max Boqwana  53:15

Mr. Henley, Thank you very much. And thanks, Ria, for that. And and it’s scary when when Mr. Hendley says that guns are part of religion. But I think we have come to the end of this matter. And I think those of us that are from the Diaspora need to denounce the US’ false notion of being the elite of the civilized world. And I think it’s become very clear to many of us that we are in fact dealing with a genocide, this quite clearly a targeted group of people that are at the end of this misdemeanor. And I think we need to make it out clear that a civilized world, Mr. Henley, cannot be one that treats its own citizens as second class citizens and as outsiders. I think to the colleagues that are here, Beth Lyons and Lennox, we have now started on a journey, which I think is a very, very important journey that will expose the atrocities that we’ve been dealing with, that we would look at creative ways of calling for accountability, and that in the end, we will be able to challenge the system that encourages and protects police that are involved in hideous crimes. So thank you very much for for for inviting me and Peter. It has been very difficult hearings. But I think kudos to all of you for this initiative. Thank you very much.

Geoff Henley  54:58

Thank you so much for your time and interest.

Judge Peter Herbert, OBE  55:00

Thank you. I think I’d pick up, repeat what Max has said. But certainly these crimes against African Americans and Hispanics and others, actually, people of color, will, if they’re rectified would benefit the whole of American society. That is the irony. Generally, when you find racism and injustice, everybody benefits, even police officers better. Because I think Gandhi said, when you perpetrate injustice, actually, the perpetrators themselves suffer. They may not see it, they may not…but they do. And on the basis of international law, it’s my understanding that these crimes are crimes against humanity. They are directed at a particular ethnic group or groups. And they are widespread and systematic. And I think that it is for the international community to call out the United States. And I certainly hear repeatedly saying this is the greatest country on Earth, the greatest country on earth does not do this, to its citizens. It does not do this. And I think the way in which America portrays itself, and its democracy, and it just, thinking on what Mr. Henley said, I’ve never seen such restraint exhibited by police officers, as I saw with the Capitol Building, very great restraint was used.

So that for me gives the light of the fact that this is somehow something that happens elsewhere, when they see it as being necessary, or they see their own. They’re capable of exercising such great restraint. And I know there was some injuries, fatalities, which I obviously abhor, but it’s a generality, they would you would even the German police or Finnish would exercise some baton control if they saw their parliament, their Reichstag, etc, being being invaded in this way. So I’ll leave you with that. But I think it is time and thank you very much, everybody, for putting this together, Max for your expert, expert commentary, and rear and others to numerous to mention in putting this together. I really found this a saddening but beneficial exercise and I pay tribute to all those victims and all those victims to come of police brutality, whatever their ethnic origin, age, nationality, gender may be. Thank you.

Max Boqwana  57:17

Thanks, Peter.

Ria Julien  57:19

Thank you all. And that this concludes the hearing in the case of Jason Harrison Hearings will resume tomorrow. Thank you.

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