With Black Lives Matter marches bringing crowds to cities from Minneapolis to Alamo Heights, a number of suggestions are being proposed for much-needed police reform. They range from banning choke holds to defunding police departments.
I’ve been thinking for some time about a modest reform that could have a fundamental impact on police culture. It’s so modest, so far from radical, that it’s been part of the official code of ethics of Christians and Jews for thousands of years.
The reform I propose, which is, unfortunately, also radical, is that lying be a firable offense for police officers if they do so as part of their job. They shalt not bear false witness, the Ninth Commandment.
I believe the same ironclad rule should be part of another profession: journalism. It largely already is. Newspapers and other media outlets have regularly fired people for lying. Not always on first offense, and I’d have no problem with that for cops. Good people make mistakes.
Years ago, I saw two staffers seriously disciplined for first offenses at the now-defunct San Antonio Light. One was for misrepresenting facts in an article, the other for lying to an editor about having fact-checked something that turned out to be wrong. I don’t believe either did it again.
As important as honesty is for journalism, it is at least as important for law enforcement. We give officers guns and the ability to imprison people, yet don’t always hold them culpable when they lie. The reality is that lying is widespread in law enforcement, something that has been made painfully clear with the advent of body cameras and cell phones.
A New York Times article Monday noted that in the last week alone:
- Two Buffalo cops filed a report saying that a 75-year-old man “was injured when he tripped and fell.” A video showed that they shoved him unprovoked to the ground and left him lying with blood flowing out an ear,
- A Philadelphia cop said a man pushed him off his bike, but the video showed he had clubbed the man,
- A Sacramento cop was shown to have punched a 14-year-old boy while arresting him but did not mention it in his report.
- And, of course, the reports of the four Minneapolis officers involved in George Floyd’s death misrepresented how he came to die.
It’s a longstanding national problem that goes beyond hiding their own behavior. For decades, officers themselves have had a term for lying under oath: testilying.
In a 1996 Los Angeles Times article, Joseph D. McNamara, then chief of police of San Jose, said, “As someone who spent 35 years wearing a police uniform, I’ve come to believe that hundreds of thousands of law-enforcement officers commit felony perjury every year testifying about drug arrests.”
Last year, USA Today did a major study of false testimony and found records of more than 1,200 officers who had been caught lying. Only 261 were disciplined for it.
Monday, I called two long-time prosecutors with the Bexar County DA’s office to test my belief that the practice is not uncommon here. One is still with the office. Both reasonably asked for anonymity. Both heartily agreed it was common.
One said he first encountered it as a “baby prosecutor” in a misdemeanor prostitution case when he had a young officer on the stand who had been sent into a strip club because older vice officers would be recognized. The young officer testified that a stripper told him if he bought a (cheap) bottle of champagne for $100, they could go in the back and have some fun.
“He said she leaned over and whispered in his ear that her ‘specialty was [oral sex],’” the prosecutor said. “But his body language was all wrong. His eyes shifted down and his shoulders slumped. He was a terrible liar.”
The dancer testified that she would never say such a thing because the employees always worked from a script.
“She said they would say, ‘We can go into the back room and do whatever we want,’” said the prosecutor.
The keyword was “we” because that let her limit the action. There were many things she didn’t want.
“Her defense was that she was a con artist, not a prostitute,” the prosecutor said. “The jury could see the officer was lying. They found her not guilty.”
The other prosecutor told a story from his earlier career as a defense attorney when his client was charged with murder and won acquittal with evidence that he was elsewhere. In this case, what was remarkable was that the false testimony came from an officer whose only involvement was transporting the defendant to the hospital.
“He started testifying about some incriminating statements he said my client made on the way,” the now former prosecutor said. “But there was nothing in the police reports about that. When I challenged him, he said his sergeant told him not to include it.”
The lying isn’t limited to criminal cases. A lawyer in a civil case once told me he was stunned when a police officer, who was a witness in the case, gave testimony quite different from what he had said when he was interviewed before the trial.
“I didn’t make an issue of it because it still helped my client, but I did ask him about it,” the lawyer said. “He said his memory improved.”
Lying by police officers is a very serious matter. Studies indicate they do it largely to cover up their own mistakes or misbehaviors and to make sure people they think are guilty anyway get convicted.
If somehow police forces could build a culture in which lying was considered wrong and was punished, I believe it would have a huge impact on the rest of police culture. Officers who don’t lie would not, as they are pressured to do now, have to cover for cops they know are lying. There would be a professional pride in the standard of honesty that would inform other behaviors.
Building such a culture would begin with training, but it would have to be enforced in practice. I think most officers would welcome or at least accept the encouragement to honesty, but those who did not adapt would have to be declared unfit and fired.
One problem would be arbitrators in San Antonio cases who, according to a Washington Post report, lead the nation in reinstating fired police officers often by pointing out that in earlier, similar cases officers received lesser punishments. Contract language would have to prohibit arbitrators from reducing the punishment in cases involving lying. Getting the police union to agree to that would be at least as difficult as it was to get them to chip in on the costs of their health insurance.
I can think of one sign of possible change. Both of the prosecutors I talked to said they believed San Antonio police and sheriff’s deputies have significantly reduced the amount of police brutality here in recent years, for which they gave credit to the police chief and the sheriff. And with the exception of what looks like an overreaction of teargas and wooden projectiles near the Alamo last week, officers here have handled Black Lives Matter demonstrations better than many police forces around the country.
That suggests the police culture is already better than many and can be made better still.