Police Reform Can’t Happen While Police Departments Enable Lying
By: Aris X. Hart
Tags: Politics, Police, BlackLivesMatter, Justice, Police Brutality

Thousands of Americans across the board are calling for some kind of police reform, including the end of qualified immunity, defunding the police, increased training, reforms on use-of-force, and other solutions. However, the less-discussed problem with American police is their propensity to “testi-lie.” Reforming American police requires, among other things, that police actually be credible and believable. Good policing requires the same. However, as long as public deceit is enabled and encouraged by police departments, real change will be slow to materialize.

The core issue is that police statements are taken at face value by courts, prosecutors, and the media unless there is a video of the incident. Police reports are taken as fact. Police testimony is frequently taken as fact to support convictions. Police nationwide abuse this broad trust by frequently “testilying.” Testilying is when police commit perjury to get convictions or otherwise lie in court documents. Perjury is a crime, and when police do it, they are lying to deprive people of their freedom.

To tackle testilying, the first question we should ask is “why”. Why do police lie to get convictions? One very forgiving answer is that police recognize that dishonesty to the court is bad, but is ultimately justified to put bad people in prison. The less forgiving answer is that testilying police, as a general matter, care more about putting people in prison (innocent or not) than actual justice. Regardless of the motivation, lying to secure a conviction is unacceptable. If you are innocent, and a cop has determined that you are guilty and lies to a court to get you convicted, then your real innocence loses to a cop’s perception. That is not justice.

As an ethical matter, lying to a court, which again is perjury (a crime), is per se unethical. If you have to make up evidence to secure a conviction, then that person should not have been convicted in the first place.

This problem is so pervasive that it is reasonable to disbelieve every statement from the police. This includes police reports and testimony. The willful deceit is so prevalent that it is unwise to trust even completely honest police officers since there is no police accountability on the issue.

Testilying helps crooked cops get convictions and hurt innocents.

There is substantial evidence that police are willing to lie to get a conviction. Common lies include seeing a gun, saying that they saw an arrest they were not present for, and claiming to have seen a drug deal take place. This is not to say that all police perjure and lie. Many, if not most, do not. However, testilying is so pervasive among police as an institution that police should rarely be believed by the public.

This is not a new problem. Since at least the 1990’s, legal scholars, newspapers, and other outlets have examined the pervasiveness of police perjury. For example, Philidelphia police perjured themselves in over 45 different drug cases in the first two weeks of September 1995. All of those convictions were later overturned. This is so rampant despite the fact that judges and attorneys know how prevalent police perjury is. As Alan Dershowitz put it in the 1990s:

“As I read about the disbelief expressed by some prosecutors… I thought of Claude Rains’s classic response, in Casablanca on being told there was gambling in Rick’s place: “I’m shocked — shocked.” For anyone who has practiced criminal law in the state or Federal courts, the disclosures about rampant police perjury cannot possibly come as a surprise. “Testilying” — as the police call it — has long been an open secret among prosecutors, defense lawyers, and judges.”

Unsurprisingly, testilying has not decreased since the 1990’s. For example, NYPD officers, today, lie so often that the five boroughs keep databases of police who cannot be trusted due to repeated and habitual lying. Despite this, some judges don’t care that certain police are notorious for lying, and will uphold convictions based largely on the word of those officers. Unsurprisingly, those officers are never fired despite being so dishonest that they are not even brought into court.

It is difficult to see how often testilying happens without looking at a trend of police testimony. As one author noted, police would frequently use the exact same boilerplate language in their testimony:

“I observed defendant X acting suspiciously at the comer of Main and Spruce Streets. He appeared nervous. He had a small white package in his hands. When I crossed the street, he dropped the package and ran away from me. I apprehended him, picked up the package, and determined that the substance inside was cocaine. I arrested the defendant and read him his Miranda rights.”

It is incredibly convenient that so many suspects would drop drugs in a bag while running from an officer. In 1967, one New York court noted that thousands of statements from police were identical in this regard. Weird coincidence.

One court in 2011 could tell that police were probably lying and did nothing about it. The court noted how suspicious it was that in so much police testimony: 1) police “nonchalantly” approached the suspect; 2) that suspect took police back to his home after they asked nicely; and 3) that suspect let police inside to search the home, where they found drugs in plain view. It is certainly suspicious that large numbers of people would invite peaceful police into their homes to search the premises.

The logistical problem with stopping testilying (besides the fact that police effectively cannot be fired for doing it, or anything else), is that without accurately keeping a public “honesty database” of all police, we are flying in the dark. Judges and prosecutors routinely just ignore police lying, and they are the ones currently charged with demanding honesty.

Police also routinely plant evidence, lie in police reports, and lie to the media.

Police dishonesty is not limited to perjury in court. They also routinely lie or misrepresent facts in official reports. When Buffalo PD pushed a 75-year-old man to the ground and sent him to the hospital, they said he “tripped and fell” in the report. Video confirms that this was a lie. Sacramento police repeatedly punched a 14-year-old Black child in the face while arresting him. The punches were caught on video. Conveniently, the police report never mentioned the punches.

Aurora police held four black girls, ages 6, 12, 14, and 17 at gunpoint because they mistakenly believed the car they were in was stolen. Then the police handcuffed the children. The police department later claimed that children are handcuffed when they “get hostile.”

Baltimore PD is notorious for planting guns on people during arrests, using the guns to justify killings, and trying to use those guns as evidence in convictions.

One Florida cop planted meth and marijuana in hundreds of people’s cars during traffic stops. Luckily, 119 people had their convictions reversed, but who knows how many other people were subject to this one cop planting evidence. NYPD also isn’t above planting drugs in innocent people’s cars to get an arrest.

Police left the police report from Breonna Taylor’s killing almost entirely blank. If there are no facts, then the police are hard to hold accountable.

On September 1, San Antonio police arrested Mathias Ometu while he was jogging. Ometu had not committed a crime. Police said they arrested Ometu for “assaulting a police officer,” but a video of the arrest shows Ometu not resisting at all. Police tased Ometu, who was not resisting arrest and had committed no crime. The police lied and tried to cover up the truth. If there was no video, then the charges would not have been dropped.

Prosecutors are culpable in systemic dishonesty as well. A Kentucky commonwealth attorney tried to convince a drug dealer to say that Breonna Taylor was an accomplice to drug crimes. She was killed in March. She was never charged with a crime. The government attempted to tarnish Breonna Taylor’s name six months after killing her because they believe people won’t be upset if an “undesirable” was killed by police.

These are all recent. We wouldn’t even know about most of the recent police misconduct if not for social media and smartphones. How many more people are oppressed by the police every day? How many more are unjustly punished by police who lie to justify bogus convictions and murder?

What can we do about this?

One of the many problems with bad cops is that they effectively cannot be fired. Police unions enable bad cops by forcing every firing to go through a mandatory arbitration process that favors the fired officers. For example, in Minnesota, half of the fired police win in arbitration. Arbitrators are not elected officials and are accountable to no one. So, if a cop, hypothetically speaking, kills an unarmed person on video and is fired, that cop will probably get their job back within a year. If they don’t get their job back, they are usually rehired by another police department. If police cannot even be fired for killing someone, then being fired for lying is also off the table. In light of judicial rubber stamps for police deciet, what can we do?

Fortunately, we still have options. There are several common-sense solutions that every state could mandate to help address rampant testilying and unaccountability. We can demand that our elected officials enact the following reforms:

1. Mandatory body cameras. Every jurisdiction should have mandatory body cameras on every officer that is on-duty in the public. The cameras should be required to be on for all working hours, and sanctions should be imposed on cops who do not wear their body cameras. We frequently wouldn’t know anything besides the police’s official statements if not for cell phones and body cameras. The cameras are critical because, as we discussed above, police will lie even if the entire event is on video, including bodycam footage.

2. Bar testimony when police turn off their cameras. If police turn off their body cameras, then there should be a rebuttable presumption that those police are not trustworthy in that given case. Logically, if a camera is on the officer’s uniform, what reason could they have for turning it off before an arrest? Police don’t forget their gun and badge. The same should apply to body cameras.

3. Mandatory “testilying database”. New York City prosecutors had a fantastic idea: keep a database of police who routinely lie, and are therefore not trustworthy. This database must also be available to defense counsel and prosecutors. Too many people are in prison because of the “good word” of police who lie on the stand. Consider, if a citizen commits perjury, that evidence is admissible against you, any time you are a witness, for ten years. Attorneys would not hesitate to attack your credibility if you lied to a court of law. Shouldn’t we demand that police at least be as trustworthy as the average citizen? A testilying database that lists deceit in testimony and on police reports would disincentivize both. States can go even further and bar police from testifying in their cases when they have a record of testilying.

4. Abolish qualified immunity. Qualified immunity is the judge-made get out of jail free card for police. Police avoid liability in wrongful death actions when they kill people. Police are rarely prosecuted and it is even rarer for them to be prosecuted successfully. If police could actually be held liable for their actions in the streets, then perhaps the police wouldn’t brazenly violate peoples’ rights or just kill them. The problem with qualified immunity is that police know that they will not be charged and that they can lie with impunity to the court. Shielding bad police with qualified immunity enables the same bad behavior that incentivizes lying on the stand.

5. Actually fire bad police. This is likely the most difficult goal to satisfy. It is a safe assumption to say that most police will not plant guns on you, lie on the stand, or kill you then lie in the police report. The problem is that a few bad apples who cannot be removed or charged spoil the bunch. Firings should be linked to misconduct, whether the crimes are in the streets or in court. Bad cops need to go.

We do not have to sit here and continue to be lied to. We must demand change. There is no justice when police can lie to justify murder or put innocents in prison. There is no justice when judges allow dishonest cops to continue testifying against civilians.

If there is no justice, there is no peace.