Fruit of the Poisonous Tree: Scofflaws

June 10, 2020
/ Author: Rick

I write not about the legal concept known as the “fruit of the poisonous tree” which has to do with suppression motions. This ancient doctrine makes certain evidence, because illegally obtained, inadmissible in court, but does not apply often anymore.

Prolegomena to the Establishment of Violent, Racist Police Forces

Our courts long ago gave up on the idea that any search that benefited the police and prosecution could be illegal. We now have both the Leon “Good Faith” rule, and the “Meh, waste your time on an appeal, counselor: the appeals courts don’t care, either.”

And, they don’t.

As an aside, Leon meshes with the so-called “qualified immunity” rule. Leon holds if an officer is involved, any illegal behavior—however unconstitutional, immoral, or downright blatantly-criminal—qualifies for immunity. That is, any lawsuits against the cops are like that old saying about insults:

I’m rubber.
You’re glue.
Whatever you say bounces off me.
And sticks to you.

After all, as one judge said to me while denying a suppression motion, “We can’t expect police to know the law the way we do.” This was after the judge stated, on the record, that “[T]here is no information connecting [my client’s house], to illegal weapons, illegal magazines or that [the nickname the informant used] is believed to be [my client].”[1]In fairness to the cops, the judges screwed up here, even more than the cops. They approved the warrant when there was no evidence of illegality or contraband. The warrant was bad, for reasons stated by the judge I just quoted. No cop should have relied on it.

As you can see, pretty much no matter which way you try to cut it, the criminals win—so long as they have a badge. [2]Or wear a robe.

Several events of this week, therefore, do not—could not—surprise me.

Nice Tires You Had There

Certainly not a surprise: Protesters returned to their cars to find slashed tires. Naturally, everyone assumed other protesters—or rioters, if you prefer—were responsible.


But if it were possible to identify these officers—a move to which police have become attuned, and now successfully thwart—these scofflaws would benefit from the protective shield the courts have built for them.

We’ll Just Pick Up Our Marbles and Go Home

And if, somehow, someone tried to hold them accountable? Or if they just became pissed off enough at being held accountable to quit? There are plenty of police forces around the country that explicitly recruit that type of cop.

This is nothing new. You read this, and it surprises you, but the United States has not always had police forces, or police officers. And from Day One—make that even before Day One—of the creation of the modern police force, there were policemen who

“didn’t want to wear badges because these guys had bad reputations to begin with, and they didn’t want to be identified as people that other people didn’t like.”

“If you were rich enough [to have police], you paid someone to do it for you — ironically, a criminal or a community thug.”

My! How times have not changed!

“But wait, there’s more!,” as late-night advertising shrieks.

In the South…the economics that drove the creation of police forces were centered not on the protection of shipping interests but on the preservation of the slavery system.

And so we arrive here, where scofflaws—otherwise known as “police officers,” or cops, or the more accurate name of “pigs”—quit their jobs en masse when told that we no longer really care for them being criminals, vandalizing our cars, or killing us.

Modern-Day Police: Fruits of a Poisonous Tree

In many ways, cops make me think of a popular summer fruit, the litchi.

I’m told that some people like litchis.

Yet, the litchi contains certain natural toxins, mainly found in the seeds. Unripe litchis contain a certain amino acid that essentially drains all the resources (glucose) from its victim, which can lead to brain inflammation, and death.

So, perchance you might enjoy a litchi, but you must take care if you intend to do so without dying.

The seed of modern-day police, as I already said, is the preservation of slavery. This natural toxin resists all attempts to eradicate it.

First, and foremost, of course, southern colonists fought for—and received—a voting assessment of “three-fifths” of all slaves. This meant that they effectively, and legally, prevented the United States from abolishing slavery at the nation’s inception, and for nearly three-quarters-of-a-century thereafter.

Such a grievous sin could not be sustained, however, and—when God failed—we tried stamping it out with a civil war. The Thirteenth and Fourteenth Amendments to the Constitution tried to codify racism out of existence.

Like most constitutional amendments—think “Bill of Rights”—they failed miserably.

Some see the seed of racist policing embedded in the Thirteenth Amendment. And that seed grew into a new system, known as “Jim Crow.” Black people were simply arrested on trumped-up charges, and the Thirteenth Amendment authorized the creation of a new form of slavery that has continued to this day.

At least one writer disagrees—and makes a decent argument of it. Yet, even he notes that the seeds of racism continued to infect our nation’s structures and systems.

Since these early “civil rights” laws, our nation has meandered from Plessy v. Ferguson to the Civil Rights Act of 1964, and back again. But a key element throughout is the racial bias within the criminal justice system, primarily enforced by cops, and secondarily endorsed by prosecutors, before getting the official imprimatur from judges.

Are All Cops Really Bad?

Often, people respond to comments like those above with, #NotAllCops. Even in the recent “resignation” of 57 Buffalo police officers, after two of their own were arrested for almost killing a 75-year-old white man, two of the 57 said, “we did not do it as a show of support.”

What pissed them off was that the city didn’t have their back, as they were potentially killing protesters—not because they were racists, but because the system required it under the circumstances.

The article by Radley Balko linked earlier (okay, here it is again) makes this clear: “systemic racism” does not mean everyone involved in the system is a racist.

Of particular concern to some on the right is the term “systemic racism,” often wrongly interpreted as an accusation that everyone in the system is racist. In fact, systemic racism means almost the opposite. It means that we have systems and institutions that produce racially disparate outcomes, regardless of the intentions of the people who work within them.

Cop Culture & Structural Racism

But the truth, as the #NotAllCops article notes, is that

you can’t have a good cop in a bad police culture.

That’s it. You can’t have a good cop in a bad police culture. It’s the fruit of the poisonous, diseased tree. The intentions of the fruit notwithstanding, the current system of policing harms blacks, more than whites; underneath the bark, its rotten racism. It always has been.

[Khalil] Muhammad’s work focuses on systemic racism and criminal justice; The Condemnation of Blackness deals with the idea of black criminality, which he defines as the process by which “people are assigned the label of criminal, whether they are guilty or not.” That process has been a vicious cycle in American history, Muhammad explains, wherein black people were arrested to prevent them from exercising their rights, then deemed dangerous because of their high arrest rates, which deprived them of their rights even further.

So, no. Large numbers—numbers too large—of cops behave badly. But not all cops are bad. To paraphrase another black man, “The system made ’em do it!”

Fixing Structural Racism Requires Fixing the Structure

I believe that it is even probable that large numbers of police officers see the problems in modern policing, but systemic racism forces their hand. When given a choice, they behave responsibly.

But too many do not. They are scofflaws—they scoff at our laws, particularly those meant to protect us from them. They are the fruit of the poisonous tree, and the tree will protect its own.

We won’t, and we cannot fix the problem by only going after individual officers. The tree is the problem. The tree produces the fruit. And those who take care of the tree will cull any fruit that doesn’t meet their specifications.

Finding a way to change those specifications—to fix the structures of the poisonous tree—so that we get more “good” cops than “bad” must be our common goal.

“Defunding” Police

Many folk are talking on Twitter, and in the news, about “defunding” the police. The word means different things to different people using it. Scott Greenfield suggests we

slow this train down, think things through, make sure what we’re doing will accomplish what we want it to, and not leave more dead bodies in the streets.

And he’s right about that. Too many knees are jerking, and too many are floating idiotic suggestions.

To those with the deep knowledge of law and the legal system that makes one a twitter expert, these are wonderful things. A mad rush to react to undo the one-sentence concept of what has ailed society for decades, if not centuries, all fixed by the least knowledgeable people around in shifted positions developed after minutes, sometimes hours, of thought. And how could they not be sound, believing that if given half a chance, we would all turn into beautiful, caring empathetic people who would wash each other’s feet and supplicate ourselves to the general marginalized good. What could go wrong?

We don’t need cops dressed like soldiers, and driving tanks. Schools and mental health services lack resources. We must move a little money. When the only tool you have is an army, every citizen looks like the enemy.

But, the devil is in the details. As much as I hate to say it, we need cops. We almost certainly don’t need as many as we have. We don’t need an army. And we do not need cops who will not honor our Constitution, and our laws.

The Way Forward

So how do we move forward? I don’t really know. I don’t know if the poisonous tree—which, after all, is just a metaphor—is so toxic that we must remove it. This is what the term “defunders” implies, and some of the “defunders” suggest. And for some areas of the country, that works fine. Other areas have minimal forces. But it is hard to imagine that places like New York City, or San Diego, San Francisco, or Los Angeles in California could safely operate with “no police.”

Re-Funding Mental Health / “De-Funding” Police

Starting (I believe) in the 1970s, various communities began to “defund” mental health services. As you might guess, this caused a problem.

In 1971 there were 20,000 people in California prisons; by 2010 the population had increased to 162,000 people, of which 45 percent are estimated to be mentally ill.

Needless to say, prisons and jails are not very good providers of mental health services.

A substantial portion of the prison population is not receiving treatment for mental health conditions. This treatment discontinuity has the potential to affect both recidivism and health care costs on release from prison.

Meanwhile, frightened police officers end up using excessive force against people who are incapable of responding to orders due to mental health problems. Police agencies, based on perceived threats, unnecessarily rely on military tactics and weaponry to subdue people.

So one potential solution is to read “defund” as reducing funds for wholly-unnecessary things like tanks, and shifting those funds back to community mental health services. And despite right-wing protests last month demonstrating the importance of haircuts, we might consider this: the average California police officer receives a little over one-third as much training as the average cosmetologist. Clearly, we need to increase mental health screening, and combine that with increased training for potential police recruits.

Re-Establish Constitutional Safeguards & Boundaries

As noted, it just is not feasible to believe in “no cops.” But in addition to the above, we could increase accountability through reforming our courts. Our judges need to step up to the Constitution. Read it. It isn’t just a bunch of meaningless words. Honor it. Quit creating barriers to its implementation. Establish real boundaries to things like use of force. Stop using qualified immunity and Leon “good faith” to circumvent our rights. Quit protecting uniformed scofflaws.[3]And, by the way, in California that includes getting rid of Pitchess, and requiring free and open production of records on bad cops. Don’t pump more poison into the tree.

Understand the part police officers play in escalating traffic stops. Stop supporting “bad cops.” Discipline malfeasance done under color of law. Fire them where necessary. Quit saying “it’s just a few bad apples.” Or, at least, embrace the full saying: “A few bad apples spoil the whole bunch.”

Understand that the current system is doing what it was designed to do.

The point of policing the hood is to demonstrate that the police officer dominates. That he’s the man, regardless of gender, that the officer is the boss, and that everybody else is subordinate. The way that that message is communicated is with fear. Fear for your physical safety.

Now let’s re-design it, and re-align it to constitutional principles.

Demilitarize the Police

I touched on this already. We don’t need toy soldiers tooling around town in tanks. We don’t need an occupying force. We need to disavow the idea that cops are sheep-dogs, and we’re the sheep. We may even need to go so far as to disarm, or at least demilitarize, most cops. This sounds like a crazy idea to most people. But,

arming police tends to feed violent interactions in marginalized communities. “Police demand respect, civilians resent disrespect, and interactions become confrontations that escalate into mistreatment, abuse, and violence.”

In some countries, police officers do not even carry guns. These include Norway, Iceland, New Zealand, Britain, and Ireland. I routinely hear people say, “We can’t do that here,” because of the perceived level of violence, based on gun ownership in the United States. Yet in Iceland, privately-owned guns number 30 out of every 100 people.

Even without fully disarming police, demilitarization should be done. There is no reason to have a standing army. And, as I said above, when the only tool you have is an army, every citizen begins to look like the enemy.

It’s Time for Serious Thinking on Police Reform

Ultimately, we are boiling over. And someone will do “something” about it. Too many people appear to believe that there are simple fixes. Defund. Dismantle. Disarm. But, although I support some of these things—depending on what is meant by them—we need a thoughtful approach. America’s racist structures—our poisonous tree and its fruit—did not grow up and establish themselves overnight.

We must move for change. But we must move with care.


1In fairness to the cops, the judges screwed up here, even more than the cops. They approved the warrant when there was no evidence of illegality or contraband. The warrant was bad, for reasons stated by the judge I just quoted. No cop should have relied on it.
2Or wear a robe.
3And, by the way, in California that includes getting rid of Pitchess, and requiring free and open production of records on bad cops.

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One Comment

  1. Holli Credit says:

    I am an aspiring criminal defense attorney and second-year law student (at FIU in Miami) looking for a topic for my Law Review comment. This post was very inspiring to me. I appreciate how you addressed an extensive variety of issues. I believe that I am one step closer to finding my topic.

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