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Thursday, May 2, 2013

For Safer Streets, Use Fairer Courts

How can we keep governments from violating our rights? Only by denying them the power to judge their own wrongs. Consider the story of Antonio Buehler and his struggle against police brutality.

The Police Swing at Buehler; Buehler Swings Back

It started in the early hours of New Year’s Day, 2012, with a woman’s scream. Buehler had been serving as designated driver for his friends, driving them home from a party, when he stopped for gas at a 7-Eleven in Austin, Texas. Hearing a woman cry out in pain, Buehler turned to see two police officers pulling a female passenger from a nearby vehicle and throwing her to the ground. Buehler asked why they were using such violent tactics and began taking photos.

Finished with the woman, the officers confronted Buehler. They accused him of interfering with police procedures, wrestled him to the ground, and arrested him, too. Their report claimed that Buehler had spat on one of the officers, a felony punishable by up to 10 years in prison. Buehler countered that the officer had threatened him, had said he had “f***d with the wrong cop this time and now you’re going to f***ng pay,” and had lied to manufacture the felony spitting charge. 

So matters might have remained: another case of alleged police brutality that bounces between conflicting stories and ends up going nowhere. In this case, however, a bystander had videotaped the incident. The video supported Buehler’s account, as did eyewitness testimony. (If the police have better proof, they aren’t saying; the Austin Police Department refused to release the dashcam video of Buehler’s arrest.)

That volunteer video gave Buehler a powerful defense; a grand jury recently refused to indict him on any felony charges arising out of his arrest. But the law gives Buehler and people like him few offensive tools for combating police brutality and corruption. Buehler complained about his treatment to the Austin Public Safety Commission, the city department charged with policing the city’s police, but that predictably went nowhere. And people in Buehler’s position face long odds if they try filing civil suits against abusive police, hindered by sovereign immunity and the difficulties of prevailing against government agents in government courts.

Therein lies the crux of the problem: Government employees should not have exclusive power to decide claims against the government or its employees. The cure? Set up truly independent bodies to hear claims of police brutality and other abuses of office.

Citizen Courts

It stands as a fundamental principle of justice that no man can judge his own cause. John Locke cited the threat of self-judgment as a fundamental reason for the State, describing it as a way to “remedy those inconveniences of the State of Nature, which necessarily follow from every Man's being Judge in his own Case.” Government courts cannot claim independence, however, when they hear claims against the government itself. Even giving judges life tenure cannot ensure their impartiality when they have been preselected by politicians and depend on government paychecks.

Apologists for the State may reply that there is no better way to resolve the private claims brought against it. Wrong. Private dispute resolution services have already solved that problem. They had to. Unlike government courts, private dispute resolution services cannot afford to treat their customers unfairly.

The American Arbitration Association, among others, follows this elegant procedure: Each of the parties to a dispute chooses a judge, those two judges agree on a third, and together the panel of three resolves the case. This system offers a model for what I’ve elsewhere labeled “citizen courts”: Adjudicative bodies designed to resolve disputes between the government and other parties under the same arbitration procedures that private parties customarily use in resolving civil litigation. 

Calling out Police

Would the government give up its own courts for citizen courts? Not readily. Imagine, though, if someone like Antonio Buehler were to call out the police, challenging them to a judicial contest on level ground.

How would it work? Buehler would publicly challenge the Austin Police Department to appear before a citizen court. Assuming the police accept, Buehler would pick an arbitrator, the Austin Police Department would pick an arbitrator, and those two arbitrators would in turn pick a third. Together, the three arbitrators would hear evidence from the parties and decide Buehler’s complaint against the police (and the police’s complaint against him, if they liked). A simple procedure, yes—but one that would set a new standard for fairness when it comes to resolving complaints of government abuse.

Even if the police chickened out, as they probably would, Buehler and his fellow activists would have won an important victory. It is not enough to simply criticize traditional methods of correcting police brutality and corruption. Reformers have to offer a better alternative. Simply raising public awareness about the possibility of citizen courts would strike a blow against the unjust status quo.

Buehler and other victims of police abuse should not stop at educating the public, however. If officials won't cooperate with citizen court proceedings, courts should proceed without them. Reformers could appoint advocates for otherwise unrepresented police and otherwise try to provide for as complete, fair, and open a process as circumstances allow. Judgments against the police would of course not be legally enforceable, but that won’t stop them from carrying a lot of political weight.

It probably won’t happen the first time, and it might not happen for many more, but if enough people resort to citizen courts, officials will eventually have to take notice and take action. Reforming police practices and improving traditional remedies for victims of police abuse would in itself represent a significant achievement. If governments were to go further, though—if they would give up the inherently unfair practice of judging the claims brought against them and instead rely on truly independent dispute resolution procedures—we would win both fairer courts and safer streets.

  • Professor Tom W. Bell is a professor at Chapman University School of Law.