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Our silence equals consent

Our silence equals consent

Former defense attorney remembers too many clients roughed up by police

Staff Writer, New Jersey Jewish News

Drew Angerer/Getty Images
Drew Angerer/Getty Images

Hearing descriptions of police brutality and seeing people’s bruised bodies was a regular feature of my work nearly 30 years ago when I was a criminal defense attorney for the Legal Aid Society in Brooklyn. I almost got used to it.

I’d go into the area behind the courtroom where our incarcerated clients were waiting to speak with us. Some were confused about why they’d been arrested. Some knew. Many complained about their treatment at the hands of the police. There was a black eye, a punched shoulder, a bruised rib, a twisted hand, a broken bone, a sprain.

Police brutality did not begin with Eric Garner or Sandra Bland or Tamir Rice. George Floyd — murdered last week by a Minneapolis police officer — is just the most recent name on a horrifyingly long list of black people dying at the hands of police officers, a list which goes all the way back to the beginning of law enforcement in the United States. (According to “The History of Policing in the United States,” policing in the South began as slave patrol; in the North it began as a way to control disorder in urban areas, but the police were notoriously corrupt and violent, and the definition of disorder changed depending on who was in power at the time. Either way, there were few African Americans doing the policing.)

There were moments as a defense attorney when I would allow myself to think the violence was too much, too frequent to be real. It was suffocating if I thought too much about it. But I knew the story writ large, told over and over and over again, was true. Of course not all cops are bad and not every person arrested is subjected to violence. Many officers offer nothing but selflessness and bravery and are in it for all the right reasons. Others are just trying to make a living and feed their families. But the system they are working in is flawed.

Some of my clients were white and some were women, but mostly they were black and brown men, because they were the ones who lived in neighborhoods heavily patrolled by police. It’s no secret that African Americans are overrepresented in the criminal justice system. In 2016, African Americans were 5.9 times more likely to be incarcerated than whites, according to the U.S. Bureau of Justice Statistics. That same year they comprised 27 percent of all individuals arrested, double their proportion of the U.S. population, according to the FBI’s Uniform Crime Reporting Program.

If there was a charge of resisting arrest, I knew almost certainly there would be bruises and a description of being roughed up. That’s how it worked. “Resisting arrest” had a pshat and a drash: respectively, a literal meaning and deeper-level meaning. The pshat was that it could be true that a person resisted arrest; but the drash was that it was also the cover story for brutality. When the violence was one-sided and perpetrated by police, this charge was the system’s clever, built-in way to cover it up.

We did not have smartphone video back then, in the early 1990s. But it seemed to me that, in certain cases, we didn’t need a recording to grasp what happened. I vividly remember one young man in particular who was beaten to a pulp by police, spent a long time in the hospital, and had what were likely life-long injuries. He spoke softly, limped, had photos of his many injuries, and carried around a thick file detailing what had happened to him. The only charge against him was resisting arrest. If there was no underlying criminal charge, why was he arrested? Whatever led to his unlucky interaction with the police, it was not criminal.

Yet the prosecutor would not drop the charge because my client had filed a complaint with the Civilian Complaint Review Board, an independent body tasked with investigating charges of police misconduct and then issuing its findings and recommendations to the police commissioner. His case dragged on and on. If the system could not act quickly to dismiss a case with trumped-up charges, how could it be relied upon to do justice in more nuanced cases?

When I left that job and started writing in the Jewish world, the contrast was stark. Today’s Jewish world is a mostly safe, mostly affluent, mostly white haven, especially among its established institutions where I have worked. Sure, as a people we carry scars and trauma from the past, but most of us, as a community, are not afraid, every day, for our lives or for the lives of our brothers or fathers or husbands or sons or mothers or sisters or wives or daughters. For us, police are people we learn to trust and rely upon, especially in a climate of rising anti-Semitism. They protect our institutions and our families. They are our partners, not the enemy.

I don’t watch the videos as they go viral. I can’t watch murder. I don’t even like violent movies for entertainment — because I don’t find it entertaining. I’m sure it isn’t good for the soul, and it always brings me back to Brooklyn. At that time in my life, I could walk away from a world of violence in policing by changing jobs. Anti-Semitism is not institutionalized, and I am the beneficiary of white privilege. People who are black never get to walk away.

But some experiences stay with you, no matter how long ago they happened. Even now my stomach sometimes drops when I see a police officer, vestiges of the dread I developed for them during my time at Legal Aid. They had a lot of power over me and my clients, and I had to learn how to act around a certain swagger that some, though not all, of the guards displayed in jails: just the right amount of deference, never let them see you bristle. They could arbitrarily decide to allow us to see our clients or not, make us follow every last rule to a tee or not, let us stay until we were finished or cut our meetings short. They called us “counselor.”  Some used the word matter-of-factly, as a show of respect, or because they didn’t know our names. Others used it instead of our names, as if to erase them, with just a hint of a sneer. Some used their position to communicate that in my taking on this role, I had made myself another person they needed to control, and that I was powerless. The intimidation was built into their jobs.

Today if I get pulled over for something routine, I sometimes panic. Then I remember I’m a 50-something white woman and so I am most likely safe. A tall black man with an athletic build? He should probably worry. Under 40? Shake a little more.

Almost 30 years have passed, and despite all the different policies and trainings, the only change with regard to violence in policing, it seems, are the civilian video cameras. If these witnesses are not able to save lives, at least they are helping to share what is happening with a broad audience, finally. No wonder the simmering rage is breaking the surface. Sometimes it feels like my only response is, what took so long?

It is heartening that the Jewish community is paying attention. The Orthodox Union, Hadassah, National Council of Jewish Women, the Central Conference of American Rabbis, and many local rabbis and Jewish organizations are issuing statements condemning the racism built into our system. But words need to be followed by actions. As individuals and as a community we have to engage in the difficult work ahead. We have to become allies and supporters. We have to speak out and act out.

We have reached a moment where silence equals consent, and we can never consent to brutality.

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