I am Michelle Burrows, civil rights attorney who has spent the last 30 years suing police and prisons for abuse of force and the mistreatment of people.

Can you compare the conditions at private prisons to states run prisons? I think having for profit prisons is one reason we are so over incarcerated

This is a complicated question. The government has the legal obligation to provide humane and safe conditions of confinement. They cannot discharge this duty by using a private provider. This duty includes safe housing, medical care, and personal safety for everyone. Many governments bought into the pitch by private companies that they could provide incarceration for the government affordably. Private prisons are run by large corporate conglomerates. Their goal is to make money at any expense to the prisoner.

These private companies bid on providing jail services to local governments and sometimes state governments at a flat contract price (for a multi-year contract). For example a local county jail might contract with Conmed for medical care in jail and promise to provide standard of care medical services for a flat rate for the term of the contract. What happens is that the private provider cuts corners and stops providing services because these contracts let the contractor keep the unspent funds at the end of the contract term. So the less they spend the more they make.

The consequence is that they hire Correction Officers (COs) with no experience, with very little background checks, who have engaged in some of the most horrendous abuse of prisoners I've read about. Private providers also do not allow prisoners to allow prisoners to have expensive medical tests or evaluations, and often times medication. Private providers are still obligated to meet the 8th amendment standards on incarceration for prisoners and can be sued as a quasi-government entity for failure to provide humane and safe conditions of confinement.

My opinion as to why we are over-incarcerated rests in the history of mandatory minimum sentencing, three-strikes laws, incarcerating for non-violent crimes at very high rates, criminalizing addiction, and the proliferation of prosecutors who are allowed to have too much control over sentencing.

The solution?

Get rid of private prisons and jails. The incentive systems are flawed in that there's no incentive to reduce prison population. It's as cheap to incarcerate one as it is a million.

Repeal all mandatory sentencing measures as the Feds did. Repeal all three-strikes laws. Use alternative processes for drug crimes such as drug court and treatment programs. Do no prosecute mentally ill folks, try to achieve hospitalization and medical care instead of jail. Decriminalize or reduce criminality of low-level property crimes. And incentivize rehabilitation instead of punishment. Introduce programs such as education and jobs training into prisons, because 90% of all folks who are incarcerated are going to be released.

And finally, I would recommend removing the stigma for housing, jobs, and voting for those who have been convicted of felony crimes. The inability to get a job or housing after release, removes hope from those who have been incarcerated and takes away their incentive to become a functioning member of society.

I know I’ve missed my window on our OP, but can someone help me understand the desire to repeal 3 strikes rules? I absolutely believe in repealing mandatory minimums and treating drug use as addiction rather than crime. But 3 strikes rules, especially if they have to do with violent crimes, seem more of a measure of separating a consistently violent person from potential victims. Now, I also believe that prisons should be accommodating, comfortable, safe living places (as far as is humanly possible), rather than harsh places where inmates are treated subhumanly or unkindly. But the single compelling apologetic for prisons is that some people seem to exhibit an inability to not harm others outside of constant supervision. And a three strikes law seems like a tool to help us identify them and protect them and others from their modus operandi.

Is it possible that the problem with 3 strikes laws is that they are not strictly applied to violent crimes?

I have a multi-level answer.

Three strikes laws are not evenly applied. The third strike can be a minor act that is elevated to a felony by a prosecutor with absolute immunity. If the three strikes laws involved only serious personal crimes where someone was hurt, perhaps the premise of this post would be applicable. Because I agree. Some folks should not be out in the community. Some people just cannot be rehabilitated or are too mentally ill to be in the community and they are subject to being mistreated in prison - so we need some kind of in-between facility for mentally folks.

There are a number of serial sex offenders who simply should not be in the community. There is a category of sex offender that are simply too dangerous: violent rapists and child sex offenders. There will always be more victims if those types of offenders have access to victims. And they should not be in the community.

I believe that three strikes are also applied unevenly to communities of color. I would prefer a sentencing system where a judge can evaluate all of the circumstances of a crime and impose the appropriate sentence for that crime. Three strikes and mandatory minimums remove this discretion and give all of the power to prosecutors.

What do you think of the hundreds of large corporations who make money from essentially slave labor from work performed by people who are incarcerated?

Edit: After thinking on this, I'm updating with an answer.

Different states have different standards for inmate labor during custody. If the state has a policy that all inmates shall have a job and work during their incarceration they must pay them. Forcing folks to work without pay--once they've been incarcerated--is unlawful. However, the pay is pretty slim. There are a few corporations using inmate labor and quite a few state agencies. My view is that if corporations have somehow managed to get a government contract to use forced labor of inmates there is a great lawsuit in the making.

1. The corporation who acts as a "state employer" steps into the shoes of the government under what's called the "state action' rule and must comply with minimum wage and workplace safety issues. 

2. The corporation who uses forced inmate labor probably negotiated that contract without proper bidding and violates any number of state and federal contracting laws. 

In Oregon the use of inmate labor is heavily regulated and for the most part inmates love that work because it is the highest paid in the system. 

Even if you get past the qualified immunity affirmative defense at the summary judgment stage, how do you get through to a jury when the cop says "I feared for my life" and "He reached for his waistband"?

You do this kind of work, don't you?

The top responses by a cop to your question: "He engaged in furtive movement", "He wouldn't show me his hands", "He lunged at me in a threatening manner", "He wouldn't obey commands", and yes "He reached for his waistband / pockets"

These cases are hard to prosecute because it's typically been the cops word against everyone else. Until this point in time juries gave a lot of deference to officers. They were our "heroes". In fact, The Culture Code, for cops was hero. But, with the advent of video that is changed. These last two weeks of real-time video of cops in action, I predict, will change juries view of that so-called hero.

What I do, I use forensic science to reconstruct shooting scenes so I can point out any and all inconsistencies with police testimony. I litigated a prison shooting case two years ago. A cop in a tower said that he could see my client stomping the head of the victim. We did a complete reconstruction on the prison yard and determined through science that the officer couldn't see anything. And then I showed the shooter went on comp-leave the next day, never returned to work, went on administrative leave and bought a winery with his comp settlement. So you have to create a villain, and he has to be bad. You should use science to disprove every lie or misstatement that cop makes, even the small ones.

If you can't use science, it's a much harder case. Unless there's a video. But there are always ways to attack the credibility of the officer. Including his past misconduct reports, eye witnesses, do the injuries match up with what the officer says, did his camera get conveniently turned off, was the person injured before he met the cop. The bottom line is if you only have the word of the cop against a private citizen, it used to be impossible to get past that. But the world has changed and you just keep fighting.

What I do, I use forensic science to reconstruct shooting scenes...

But also...

My son is helping me with this AMA because I don't know how to use the internet.

I love it.

Defer to the experts when your own knowledge is lacking.

My son says he qualifies as a Reddit expert.

Wow I've never had the AMA guest reply to me!

If you have time, I have a question: Both my parents are attorneys, practiced for about 40 years each. Neither of them think the police are abusing their power or unjustly using force on the protesters. My father used to practice criminal law but does med. mal. and mediation now, my mom works in family law. I've shown them several of the videos of unprovoked police aggression, but they haven't budged. Is there any more you think I could do or show them to open their minds on this at all?

Sounds like your folks are pretty entrenched in their views. If clear video evidence of these issues isn't enough to sway them, I'm not sure what will... But don't you give up!

Let's be real, son is helping because he's better at Reddit and thought that was a funny way to word it.

This is true. Her original reply to my text about Reddit was: "What is Reddict?!"

-son

You're so awesome. We really appreciate your insight. Even though most of us in this thread and on this site probably already agree with you on almost every point, the details are what enable us to convince friends and family of the systemic problems in the prison and justice system.

Edit: auto correct error

Thank you so much! Keep fighting. Power to the people. We will win.

Including his past misconduct reports

i thought those are usually not admissible?

Good catch.

Individual officers who are accused of misconduct and is investigated will have a file on each of those individual cases. Typically these are internal affairs investigations. These can be determined to be unfounded, sustained, or unproven.

In federal court in police misconduct cases I can get all past records of internal affairs or disciplinary matters involving the individual officer as part of discovery. They may or may not be admissible at trial. Admissibility at trial goes to: do these reports prove or disprove any issue at trial. If the police agency itself is a defendant and one of the claim is that they failed to supervise or there was a policy (official or unofficial) allowing the conduct then the disciplinary records are likely admissible. Similarly those past records of misconduct, if they are similar in pattern to the present case they can be admissible.

If the claim is a federal claim, it doesn't matter which court it's in. State court laws vary by state on evidentiary issues.

So it is mandatory for lawyers to watch "My Cousin Vinnie"?

How does it work if video was not admitted on a technicality?

This and Perry Mason. My family won't watch lawyer shows anymore because I yell at the TV.

Dark Waters is actually a great movie on fighting against overwhelming and well funded evil, while never giving up.

I've read stories on reddit about activists/whistleblowers/journalists getting harassed by the police after being exposed (i.e. Getting on their "list"). Seems like someone who sues them for a living would get treated pretty poorly. Have you ever experienced retribution from police?

I have been stopped randomly by police in small towns and told to watch myself. I had an officer draw a weapon in a deposition. I've been frisk searched for no particular reason (more than once). There is not a name I have not been called. I've had to walk into rooms where departments posted armed officers outside while we were doing depositions.

These are not acts of retribution, but are intimidation and bullying tactics meant to scare and discourage anyone who challenges the police.

This conduct scares a lot of lawyers. It's why many lawyers don't practice this kind of law. For me, it fires me up. Fuck 'em.

But you also get your attorney fees paid under the 1983 statute, right?

42 USC 1983 is the civil rights act allowing citizens to sue the government for acts committed under color of law in violation of the constitution. 42 USC 1988 is the statute allowing for attorney fees if you win an action under 42 USC 1983.

If a citizen sees a cop harming someone what can they do? This question has been on my mind A LOT lately.

Interesting you should ask. I just wrote a protester manual dealing with this issue.

Number 1: Don't interfere with the officer in any way. If he is making a legitimate arrest you could be charged with interfering with a police officer. And in fact, you will be if you try to interject yourself.

Number 2: If you fail the attitude test, you're probably going to get arrested. It will be bullshit and a night in jail sucks regardless of your innocence.

Number 3: Even if it is an unlawful arrest in most states you only have the right to resist if you are protecting yourself or your life. Even if you don't resist they may use excessive force and unfortunately you may get hurt. Which is why it's important that all police encounters be video tapes. You more or less should not or cannot do anything in the moment. Your only real option is to seek recourse after the fact.

Number 4: Let the officers know that you're there watching and video taping. I think that when officers know that they're being video taped they will address their behavior. But as we've seen the last two weeks, hundreds of police encounters are being video taped in every major city and that caution that police normally display is gone. They seem to have given up and just said "fuck it". This is unusual. This is really the first time that in America that mass protests have been documented in real time and posted for the world to see. I get the sense that the longer the protests have gone on, the angrier and more entrenched in their defensive positions the police have gotten. Hence you see the calls for defunding the police.

Number 5: Make sure people know where you are in case you get arrested. The police will take your cell phone from you and you may not ever get it back. So password protect it. Please password protect it. They cannot get into your phone without a warrant, a password insures this.

Number 6: If you are arrested you'll be handcuffed, all your property will be taken from you, and you will be put in custody for a period of time. Don't mouth off to the police, don't make it worse. DON'T TALK TO THE POLICE. Exercise your right to be quiet. Try to let someone know you've been arrested in whatever way you can. If you are hurt ask someone to take pictures of your injuries right away and try to make it to the hospital as soon as possible. The hospital will (a) make sure you're ok, and (b) provide additional official documentation of your injuries.

Number 6: If the police are shooting "less lethal" weapons, stay out of the way. I represented a gentleman who had his testicle shot off by a rubber bullet (in his words "I'm your uniballer case"). This was not a great experience, even though it was less than lethal. Less lethal can still kill. Police are taught not to shoot in the chest or head for that reason, but they miss.

It's no longer one victim, one city, one cop. It's now the entire country, thousands of victims, and thousands of cops. Which indicates to me a systemic problem with law enforcement methods today.

Don't interfere with the officer in any way. If he is making a legitimate arrest you could be charged with interfering with a police officer. And in fact, you will be if you try to interject yourself.

As an attorney, do you advise against ever getting involved? In the case of George Floyd, if a civilian had come in and tackled the murderer, George Floyd would might still be alive. The civilian would be arrested, but isn't that a better outcome?

And, how would such a situation likely play out in court? Cops use the "I was in fear for my life" all the time - frequently bogusly. Isn't "I feared for George Floyd's life" a legitimate defense against assaulting a police officer?

This is a very important question. One I've thought of myself.

Human beings tend to think in terms of self protection. You don't want to get involved in a police interaction because you might get hurt or shot. But if there is someone you can see that's being killed by the police in front of you, what choice are you going to make? If you interfere, you will be charged with a crime and arrested but you may save a man's life. And you can argue a legal defense in court that you were protecting another person's life. You might not win. But George Floyd might still be alive. This is more a humanitarian question than a legal question.

If you step in and you save someone's life like that, I will defend you.

Legally speaking, the George Floyd case is interesting. If you interfere, you don't have the hindsight that confirms that his life is in danger. But it took the police almost 9 minutes to kill him. So at some point between when he passed out and when the officers got off of him, you would probably have a reasonable defense in court. But legally it's clearly interfering with a police officer. I think that the George Floyd case may trigger more bystander inference than ever before.

Here's what I've found, but maybe Michelle will have a better answer

https://www.teenvogue.com/story/how-to-film-police-safely

I love teenvogue! Those young writers are passionate and get the message out there. I hadn't seen this before - it's great! Think about your safety and your rights.

In your opinion, how does the system remain so broken after years and years of talking about this stuff? Is it controlling interests or simply turning a blind eye?

Really good question. I would honestly tear it all down and start over.

It remains broken because there's big money in law enforcement including providing equipment to each officer. For example, Taser, now Axon, worked for years to get Tasers on every officer and expensive training for each officer to be redone every two years. Now Axon is selling the uniform based video system they want all police departments to buy, and the expensive cloud-based video storage capabilities.

Each officer is required to carry a sidearm and some departments only allow them to carry one particular brand. Most departments have AR-15s for sniper shooting and the officers must be certified and trained on that. All of that riot gear you see cops wearing? Probably equals thousands of dollars per officer. Each one of these devices requires training, sometimes they go to Las Vegas and other venues on government dollars.

I'm not criticizing well trained officers or even a lot of the equipment that they have. But departments don't need all of the toys. And they're choosing training that emphasizes shoot-to-kill or "shoot until the threat stops". This mentality has produced a fear based system in politicians. Well armed cops are a sales tool for politicians: "If we don't arm our cops, we're gonna have thugs overtaking our city.", "Look at all pretty uniforms and shiny weapons that we're going to use to protect you.", and that's the lie. Instead of addressing problems like poverty, addiction, and mental health, we're throwing people in jail or killing them.

In my 30-some years, including some representing cops, I have found that cops are uniformly racist. I don't know if that's the egg or the chicken. They primarily arrest people of color, and so it reinforces a belief that color causes crime. And that's bullshit. Most cops do not have college education, have rarely traveled outside of where they work, most are white, and there is a fundamental group think in police departments. You do not snitch on a fellow cop. If you do, you become ostracized, and cops retaliate better than any other group on the planet.

Succinctly, the monetary incentive, racism, and group think contribute. But also, as social and financial disparity grow, so do our social problems, and we're asking police officers to be cops, social workers, mental health workers, and fix everything. We need to well fund addiction treatment, mental health housing, pay to get our kids educated in schools, and really look at the root of the problem. The wealthy really don't want to pay for the poor.

Do you think that requiring cops to work alongside mental health workers and social workers would help? What about requiring more training in how to deescalate situations without using force?

Yes to both! The city of Eugene (in Oregon) has a non-profit provider called Cahoots which the police call in mental health crisis / situations. It's brilliant.

My answer is yes. Either work alongside them or create multi-disciplinary teams to deal with street crime and domestic violence situations.

I want to do a bigger answer on de-escalation, but: police officers are trained to repel with the amount of force that they're faced with, but not more. The use of force is not a ladder. The officers are supposed to de-escalate when the force that they're facing is also reduced. For example, when someone is handcuffed sitting on a curb not doing anything, they can no longer use force against the detainee. Officers are also trained not to ever give up their control of a situation. So, if you call a cop a "motherfucker" that is disrespect and a loss of control, and they are taught to get control back. I've seen cops Taze someone to get them to shut up. I've seen officers choke someone to get them to shut up. I've seen cops engage in intentional "slip and fall" when putting suspects in the back of a vehicle because the suspect failed the "attitude test".

What is your opinion on the Portland Police Department’s response to protests in the following nights after the vandalizing of the Multnomah County Justice Center?

It sucks.

I had hopes when they took a knee things were going to be different. What we have seen in these protests and vigils is what I've been seeing for 30 years. Law enforcement is so heavily armed they could be an occupying militia in our cities. They are also being trained to view all of us as the enemy. And so the response you see by the police is representative of their training, command structure, and a distancing from their real purpose in society.

I believe PPB acted like they always do in these situations and made it worse and caused greater harm. Most of the protests were simply peaceful folks walking to show their support for the rights and equality of African American citizens. Instead what we saw were the use of "less" lethal weapons, gas, and extreme physical force by robocops.

Law enforcement is only entitled to use force against citizens if force is being used against them. They are only entitled to use objectively reasonable force. Shooting a non-resistant protester holding a sign in the face with a projectile is not objectively reasonable.

While there were assholes present vandalizing a causing trouble, those individuals were easily distinguished from peaceful protesters. Vandalism and arson are crimes. Those individuals should be arrested. They still shouldn't be subject to extreme force. Everybody has the same rights. It is up to the police to assess each individual and each individual crime separately. They don't get to shoot me because some asshole is throwing rocks into a store. But the asshole is still protected from abusive police practices including excessive force.

>  Law enforcement is only entitled to use force against citizens if force is being used against them. They are only entitled to use objectively reasonable force.

I hope at some point during your visit with us, you can talk a bit more about where these standards are codified.

When I attended peace officer training to become a corrections officer, they taught "minimum force necessary to control a situation." That seems to be a thing of the past these days, but I am unfamiliar with whether to find standards in statutes, city codes, constitutional law, or departmental policy.

Most of this is judge-made law.

1. A police officer may only use the amount of force objectively reasonable under the totality of the circumstances. This phrase comes from a supreme court case called Graham v. Connor. It is the bedrock of all police force cases. It has been virtually unchanged since 1989. This is about an African American with type one diabetes who had a low insulin reaction, was seen hurrying out of a store, which an officer determined was suspicious behavior. Graham was arrested and basically beaten for having an insulin reaction and being black.
2. The use of force is judged by events as they happen and as perceived by a "objectively reasonable officer". Not the officer involved in the use of force. You cannot use hindsight and it must be only the information known to the officer at the very moment that force was used. Other factors that can be considered to judge whether force was reasonable include: The crime being investigated, how many officers who are present, the size and age of the suspect in relation to the officer, what degree of force the suspect is using, and whether there are any weapons involved.
3. Many states also have statutes that define what kind of force an officer can use in an arrest. But these statutes cannot change, amend, or be less than the Graham v. Connor standard.
4. The same can be said for department standards and rules. These must comply with the Graham standard.

If things are laid out this clearly how did the widespread unnecessarily violence become so prevelant? Is it really just years of white citizens looking the other way?

I really sensed a change after 9/11. The Feds were handing out military grade equipment for free and the local police forces took the equipment. Even small police departments were creating SWAT teams and terrorist task forces. For example, the Pendleton, Oregon police department has a tactical response vehicle. It's a good 'ol boy ranching town with a population of about 16,000 people and they have a fucking tank...

I noticed that everybody was afraid after 9/11. Nobody knew where the bad guys were coming from. I hate to be cynical in retrospect, but they used the collective fear of the unknown, fear of terrorists, fear of the "brown people", fear of the immigrants, the fear of anyone who was attacking our identity as Americans and used it to build and abuse their power. And we let them. We were afraid.

And we never got control of it again. It's like we forgot what happens when we let the government get out of control. We chose to ignore these rules because we were afraid.

It's not like we were invaded and the change happened overnight. It was a slow process that we as a country allowed to happen. Many people, people of color, families at the border, etc, have had to suffer as a result and now we're at a tipping point where people are fighting back against our own government instead of the government fighting for us.

Is it worth it, what you do? Do you have enough successes to make up for the emotional/mental toll of what you see/know? I had wanted to go into law, but my first instructor (undergrad) told me very bluntly that doing what she did (prosecutor) takes a massive emotional strength to get through some of the things you will become aware of. Do you get paid? I know this is a very stupid question, but I was wondering who funds help like you provide.

Thank you for the work that you do. Do heros all have capes?

I see this question as a bit of respite from answering questions about the cases I see. Thank you for asking. This work is not for everyone, I admit it. Sometimes I don't even think its for me. A long time friend of mine--a fabulous and stunningly good lawyer--just quit, he can't do it anymore. The desire to do good and make change is often greater than one's ability to do it. One famous lawyer in Seattle told me that I do "god's work". I believe the work is so very important--as we have seen these last few years watching the police go crazy. 

If not us, then who?

I think I am reaching the end of my capacity to do this work. It is hard and it does build up. I work with other lawyers a lot, I am teaching some, I am writing more and I'm hoping that younger lawyers will be interested enough to pick this up. I'll give you any briefing, depositions, research and whatever knowledge I have to help. I'll whisper in your ear and wave my magic wand. I do switch between prison and police work when one gets too overwhelming. I just wrapped up ten rape/sex abuse cases in the women's prison against a prison nurse. That took a lot out of me so I'll do a couple of police cases for awhile.

I'm a legal assistant in CA who has volunteered at public interest law firms before, most recently in Veteran's Affairs. Is their a firm or an organization in Southern California working in civil rights litigation and/ or public policy that you can recommend to me as a volunteer?

Thank you for volunteering and working in this important area. I would recommend looking into the ACLU, the National Lawyers Guild, Southern Christian Leadership Organization, and the California Civil Rights Coalition. I would also look into the BLM chapter in Southern California.

A friend of mine, Haytham Faraq, works in this area in Southern California and would likely be more than willing to chat with you about other volunteer opportunities.

Good luck! And be safe!

John Oliver in a Last Week Tonight segment stated that it is incredibly difficult to sue police since there needs to essentially be identical case law as precedent. Then he outlined seemingly insignificant details which differentiate the cases (like the abuse happening in a field vs a ravine for example, sorry can't find the exact clip to link). How accurate is he in that regard?

I saw this segment.

Oliver is talking about a concept called Qualified Immunity. There are several posts here dealing with qualified immunity which is an important issue.

Qualified Immunity is a judge-made law - meaning that it came out of a case many years ago when 1983 cases first began to be popular. The theory in that early case was that cops could not possibly know what actions they took that could be unconstitutional. The concept of suing for your constitutional rights is relatively new. 42 USC 1983 is the vehicle by which people can sue the government for constitutional violations. 42 USC 1983 started in 1871 as the KKK Act. The KKK act was designed to give former slaves legal status as citizens. But no one used this statute as a litigation statute until the 1980s. People just didn't think of it.

For America, suing for your constitutional rights became a sort of "new" concept in the 1980s. Therefore judges felt that police officers were entitled to "fair warning" if their conduct violated "established constitutional rights". The thinking was that similar to a criminal statute you should be advised of the contours of the constitutional requirements. In a criminal case, there has to be a statute defining what the crime is. This serves as "notice" to citizens. That exact same thinking was used to create qualified immunity.

Qualified immunity is basically a used as a barrier to being sued. It's a get out of jail free card. The original statement around qualified immunity was that you needed exact same conduct or situational facts that had been decided by the courts in order to determine future ability to sue. However, in Hope v. Pelzer and Saucier v. Katz the supreme court says that it is enough to provide general information about conduct that may server as the basis for notice of constitutional violations. Thus, shooting someone in the back while they're running away is generally enough to make that kind of shooting a 4th amendment violation.

Recently in Pearson v. Callahan an unfortunate footnote has been elaborated on and expanded beyond its real boundaries such that now cops and police agencies argue that you need exact facts in your case to something similar that's already been litigated. I believe that the supreme court feels that the various federal circuits have lost their fucking mind. Pending right now are a number of cases dealing with qualified immunity from around the country. Hopefully there will be a reset and we can return either to the reasonable findings in Saucier or simply get rid of qualified immunity altogether. Because we don't need it.

Right now defense attorneys file motions for summary judgement on qualified immunity, but you're not entitled to get qualified immunity if there are extensive factual disputes. It's not impossible to get around qualified immunity, but you have to work your ass off to create issues of fact for a jury to decide.

Hi, Michelle. I'm a transactional attorney based in Michigan. I don't have any background in crim pro beyond a 1L criminal law class; most of my expertise is in copyright and cyberlaw.

Do you have any advice on getting more involved in fixing the system? I feel a moral obligation to help, but at the same time, I feel stymied by my lack of competence in the relevant subject areas and lack of connections to the people and organisations doing this kind of work.

Thanks for your time and for the work you're doing!

This is a complicated area of the law. Most civil rights lawyers who practice have been either criminal defense attorneys or prosecutors. It is important to understand the concepts that go into prosecuting a civil rights case. I would say that something like copyright or cyberlaw are very good foundations for 1st amendment work. Those deal with ideas, words, thoughts, and perhaps people impugning on those concepts. The 1st amendment deals with government restraining speech. To work with 1st amendment cases you have to understand what speech is.

However, 4th and 14th amendment work against law enforcement requires a strong knowledge of police practices, arrest procedures, and probable cause. This knowledge is hard to get simply from reading cases.

I would recommend volunteering with the National Lawyers Guild as a protest observer. Get involved in ACLU litigation on some of these issues. Volunteer with the Innocence Project to do investigation and research to become familiar familiar with what can happen in a bad arrest and prosecution case. Find a civil rights lawyer in your community and follow them around, read their pleadings, talk to them, and get familiar with what this work requires.

Is it getting worse, better, or the same? Is it just that more stuff is being documented? And has the rise of cell phones helped win more cases?

I think it's the same. It's just better documented.

Cell phones have absolutely changed the landscape and give me hope for change and greater accountability.

I once heard a prison nurse joke about breaking an inmate's wrist if he was too handsy and about mid-level providers performing black market cosmetic surgeries in prison clinic.

How do you prove actions were committed further than hearsay?

Have you heard of prisons holding high value targets without name or trial?

Such as Prisoner X

I once heard a prison nurse joke about breaking an inmate's wrist if he was too handsy and about mid-level providers performing black market cosmetic surgeries in prison clinic.

I have not heard of black market surgeries in prison clinics. This would cost money - so it would have to be a rich inmate and a competent provider. A unique and very rare combination. However, I have heard of medical experiments done on prisoners.

​

How do you prove actions were committed further than hearsay?

This is one of the biggest hurdles in this kind of work. I hire investigators and talk to everybody. Most people are stupid and put everything on the internet (Facebook, Twitter, etc.). Those are incredibly valuable exhibits. Ex spouses are also great sources of information. If people get extra money, they'll spend it on toys, so we do financial analysis. Most prisons have electronic tracking of prisoners and staff, so we get those records. Most prisons are video taped in every part of the prison. We send spoilation letters immediately to get those videos, and if the videos are destroyed it can be good for our case. As with police, corrections officials won't snitch on each other. There's really no difference between correction officials and prisoners, they all live by the criminal code. And consequently you can't get prisoners to snitch on a cop either, there's too much retribution involved. In a medical case you have medical records and probably not too much else.

​

Have you heard of prisons holding high value targets without name or trial?

I have not heard of this at the state or county level. Rumor has it that the Feds do it.

I've heard that one of the biggest problems with getting depositions from police officers is that numerous police officers will coordinate to get their stories straight before any kind of deposition. How serious a problem is that in your work?

I start each case hoping the police will tell the truth, that they will man up and take responsibility for their actions. Honestly, 9 of 10 of my clients just want some acknowledgement of the wrongdoing and an apology. But law enforcement closes ranks when they are sued, they get together, compare their memories of the event. Sometimes there is a Grand Jury--In Oregon as in many states Grand Jury proceedings are secret. The Multnomah County DA convenes a grand jury for all police shooting death cases and publicizes the transcript. 

In every "use of force" case in the larger departments I see "use of force" reviews--in shooting cases there is a criminal investigation by a multi-agency team of detectives and a Shooting Review Board. The agency always posts official press releases, sometimes the police post something about the shooting on social media. Sometimes old girlfriends have filed domestic violence claims or ex-wives will put information in the dissolution proceeding. 

I always hire and use a forensic reconstructionist and usually a pathologist in death cases. I have used blood spatter experts, firearms experts and just about anyone I can think of to recreate that shooting scene especially if there are no videos of the event. If there are videos we get them cleaned up and slowed down--you would be amazed at what shows up on grainy dashcams. I interview everyone and depose every single cop involved in a case.

By the time I get to deposing the shooting officers, I know more about the shooting than they do. In Oregon officers do a "post shooting" walk through of the shooting. We don't get the transcript or report but we get pictures or a soundless video. These real time reconstructions create a much different picture than what officers will ultimately tell at deposition. You have to get them to provide false or misleading information in their deposition. I don't mean to be overly cynical but my experience at this point is that most officers I have deposed have lied, or "can't remember" a lot of information. For example, I have a shooting case now where two officers chased an unarmed young man into a darkened cul d' sac and shot him 12 times claiming he whirled on them after a fast foot chase with two knives, blades extended and lunged at them. All the shell cases from their weapons were over 25 feet in the opposite direction from where they claimed they were standing. The young man had been seen running with a cell phone moments before the shooting and one officer claimed he never saw the knives. Furthermore, the officers were left alone at the crime scene by themselves for almost 15 minutes and sent other officers away while they moved around the scene. Neighbors saw them moving the body and bending over the scene. The entire contents of the decedent's pockets were strewn on the ground and every single one of the 10 first responders including the shooting officer denied removing anything from the pockets. As my client's father said "What these things just magically flew out of his pockets while he's being shot to death". And three bullets came from the posterior angle--the back. 

Clearly lies, clearly bullshit. But I will never get the officers to admit to lying. I can only point out the contradiction in evidence as opposed to their statements. 

I guess my short answer--I expect them to lie. I spent weeks prepping for their depo and I just ask straightforward questions trying to get them to tell me a made up story. 

Do you feel that there's any hope Qualified Immunity will be taken off the books in the near future?

I do. SCOTUS has this issue on its docket this term. I wrote a bit more about qualified immunity in this comment.

Hi Michelle (or son), can you please add the proof to the post as well. I think you probably submitted it when you were added to the calendar.

I believe I got it added! Imgur links work?

Thank you for posting your AMA. I have two questions, and I've tried to leave them open to your interpretation:

(1) What are the top three civil rights with which you are most passionate to fight for, and why?

(2) What's the #1 change you would make to the system, if you had the choice?

Top three civil rights issues I'm passionate about:

1. Oddly, police shooting cases. I'm drawn to these because of the deep profound importance of what this means to our society. As I noted in a previous comment police officers are usually less than candid about these cases. I believe everyone has the right to know how these shootings take place. And we have the right to know about the officers who shoot people. These cases are complicated, fraught with emotion, and are usually politically charged. What better way for a cantankerous old lady to work out her frustrations.
2. Prison rape and sex abuse cases. I'm drawn to these cases for many of the same reasons I outlined above. But, on top of the importance of the issues I believe that vulnerable people who are incarcerated deserve and need greater levels of protection. I represent mostly women who are survivors of lifelong sex abuse, sex trafficking, or child porn and find themselves in prison believing that prison is the safest place they've ever been. Think about that. And then these women are raped by prison officials and have no way of reporting it and receive no treatment for it. These cases I do for my soul.
3. Prison medical cases. These cases are tough. I find it particularly repugnant that prison doctors and medical personnel will deny essential and life saving medical care to prisoners. This can often lead to death or irrecoverable damage. And the sheer indifference to suffering by prisoners is mind boggling. I don't make a lot of money on these cases but I feel like I'm saving lives and making a difference.

My number one change:

More transparency and accountability. Everything in these cases is done by the government who try to hide and disguise what happened. This is our government, they should be accountable to us. They should have to explain why they do these things and how they do it. I'm a little extreme on solutions, I believe police officers should have to undergo psych evals and have at least a 2 year college degree. I believe that all officers, to work the streets, should have mandatory body cams that are always on. If the camera gets turned off there should be mandatory disciplinary action. I believe that police unions are one of the biggest culprits behind our police culture today and if there was a legal way to get rid of them, I would do it.

I'm considering a career change to pursue civil rights law. Any advice? Here's a few specific questions:

• for context, my broadest goal is to affect policy

• I'm 40, how long will it realistically take to "become a civil rights lawyer"?

• what should I be looking for in a school?

• if I should decide this isn't the path for me, what other ways can I get involved?

I had this discussion with my wife earlier this week, so I appreciate any and all advice you're willing to share.

On Policy Change:

You could work with places like the ACLU, The Innocence Project, or a community based organization for social change. There are a lot of groups that work on voter registration, developing legislative or legal changes with their local governments. Many local governments have civilian police review committees. Anything to get exposed to the work of the government and its interaction with people and how social change is made. Take your pick, there's a huge need to be filled here.

On Becoming a Civil Rights Lawyer & Choosing a School:

1. You need an undergrad degree and law school is three years.
2. Pick a law school that has a litigation clinic where people can come and get law students to help them. This will get you out there learning how to go to court.
3. Take all of the litigation type classes or mock trial activities that you can in law school.
4. If you're in a state that allows law students to practice under the license of an experienced lawyer, do that.
5. Working for the government as a certified law student or beginning lawyer in a government officers, prosecutors office, or a public defenders office will give you a six year head start on your efforts to be a civil rights lawyer.
6. Honestly, I worked for the government for about ten years as a public attorney (county counsel) and I started civil rights work in about 1994 and I think it's just the last four years where I've gotten good at it. You simply have to take case after case, work, work, learn, fight, lose, and win, then get up the next morning and do it all over.
7. There are a lot of education programs sponsored by Bar Association, go to as many as you can on civil rights and civil justice.
8. ACLU has a lot of publications on various issues in civil rights. The National Lawyers Guild has publications. The Department of Justice, Bureau of Justice Assistance has years of research and information. There are organizations that publish on these issues regularly, including the CATO Institute. Get on the internet and start cruising through this stuff.

Is This Your Path?

I firmly believe people should follow their passion. As you know, this is a lot of work. But ultimately if this is what you're meant to do, it will be worth it.

I have to assume your disdain for the police is pretty high. What does your realistic vision of policing look like? What checks and balances do you think would make a big difference in avoiding these horrible situations?

I am more cynical about police than anything else. I believe that officers who do not comply with the law are a significant danger. I could never be a police officer, I would be too scared.

Here's one of the biggest problems that I've seen. Otherwise good, decent, police officers are often caught in departments that do not have a lot of self examination or really truly work to be better. For example, I sued the city of Eugene a few years ago when one officer raped and abused over 30 women that he met while on duty. No single officer knew everything he was doing, but they knew he was flirty, that he behaved inappropriately with women in the department, that he was a "dog", that he chased skirts all the time, that he ran women's addresses and backgrounds far more than anyone else, and he would disappear off of dispatch sometimes for hours at a time. The good officers refused to see what was in front of them because one of the primary (unspoken) directives of the department was to protect all officers. Even from appropriate scrutiny.

It's a top to bottom culture problem. That's what I see in Minneapolis. Four cops knelt on George Floyd for nearly 9 minutes killing him. I know there were other officers there, and no one stopped them. I suggest to you that good officers are afraid to speak out and stand up for what is right. And therefor they become part of the problem of silence.

Policing is necessary and important. But the culture needs an overhaul.

I think unions help to create this culture and we should revisit the union issue.

I think police agencies have gotten away from truly serving the community because they've gotten away from the community. I think the idea behind community policing is a good idea. The officer is on the street with the people, getting to know the people, understanding what's happening in the community and this makes him more effective and trusted.

I think we need to revisit police officer training and education. It's veered so far into militarization that police officers forget they're part of the community.

I'd like to see more transparency, discipline, and investigation into troubled officers.

Hello Michelle

What would be your George Floyd Top 5? Your top five police reforms you want addressed?

1. Ending police unions.
2. Move away from militarized training.
3. Create multi-disciplinary teams to include specialists in mental illness, domestic violence, racial issues. And let police just be police and not have to deal with every single social issue in the community.
4. Increase funding and support for people who are homeless or mentally ill.
5. Increase discipline and accountability at the top for those who promote, enable, or fail to act on culture issues that lead to the problems we're seeing today.

How big an impact do you think ending qualified immunity would have on our ability to protect our rights and pursue justice when they are violated?

It feels like it would be a massive impact, but I am curious to know the opinion of an expert.

This answer picks up where my last qualified immunity answer ended.

Qualified immunity has been used to end otherwise valuable and important cases. People don't even get a jury trial on some of these cases, because qualified immunity is decided after depositions but before the trial begins. If the officers lose the motion and a judge says they don't have qualified immunity, they can appeal immediately, normally you have to wait until the end of a case to appeal. This makes cases last 2-4 years longer, cost a lot more money to litigate, witnesses memories fade, people die, and makes justice even more elusive.

Qualified immunity has been used inappropriately to stop the single most important class of law suits in this country: enforcing our civil rights. Without the constitution as a viable and powerful tool there is no hope for justice or equality.

My answer is: This would be huge if qualified immunity were invalidated.

What was the hardest case you’ve ever had to take on?

This is a really tough one because each case has its own challenges. The one that really comes to mind on so many level is the Lisa Dunn case.

Lisa was a schizophrenic homeless woman who talked to dead people. She had a long history of mental illness and prior sex abuse. Lisa came in contact with Officer Roger Magana in Eugene, Oregon. Magana was a patrol officer who worked nights so he could more easily access vulnerable women. Like sex workers, homeless women, and drug addicts. Over the course of about five years he reportedly abused and raped approximately 30 women. There had been complaints about Magana from several women but they were ignored by the department because of the social standing of the women.

Magana came across Lisa when she lived with her daughter in a dumpy hotel. Magana threatened to take Lisa's daughter away if Lisa did not perform oral sex. That evolved into Magana threatening Lisa with a gun, compelling her to have sex with him at gunpoint, more than once. This is a pattern that Magana followed with many of the other women.

Lisa made formal written complaints to the city on several occasions about Magana. But they said she was crazy and they couldn't believe her. Lisa persisted. And it was her complaint and one other woman who started the criminal investigation of Magana. Magana was convicted of many of these crimes involving seven of the women including Lisa. He received a sentence of 90 years in prison. The city of Eugene said it was not their responsibility that Magana was raping and abusing women. They said they weren't going to pay for any damages or law suits for the crimes that Magana committed.

In order to secure some type of compensation for Lisa, to get her off the street, and try to get her help, we needed to find a way to sue the "deep" pocket. This meant the city of Eugene. I had to prove that the city of Eugene, through the police department, knew or should have known what Magana was doing and took no steps to stop it.

I took depositions of approximately one third of the entire police force. I accessed all of Magana's dispatch records and calls for service for approximately three years and traced every single call to Lisa's location and determined that Magana had called into dispatch that he was out of service (unavailable) at Lisa's location approximately 53 times.

I also was able to show, from the other victims, a similar pattern. Various officers gave me information of Magana's inappropriate behavior with women in general, but equally important, they told me about the pervasive culture at that department involving inappropriate sexual behavior by officers.

The city of Eugene filed a motion to dismiss this lawsuit against the city itself. They lost. Judge Coffin issued a very scathing opinion. The city of Eugene after three years of extraordinary litigation offered Lisa a seven figure settlement.

This case was hard for me because Lisa was a complicated client, because the city of Eugene refused to take responsibility, and because there was a massive code of silence by other officers that had to be penetrated. The city of Eugene actually took the position that Lisa could not have suffered great harm because she'd been previously raped. So I'm faced with an opponent whose morality I didn't understand.

The law was difficult, the client was difficult, the depositions were difficult, the length of time was difficult, and the evidence was difficult. It's one of those cases that you are tempted to give up on.

Do you ever wish that the money you got from taxpayers to help the taxpayers didn't come from taxpayers and instead came from the pensions of the individual police officer?

I get paid out of insurance. Many governments have private insurance policies that will pay on these claims. Other governments are self-insured with a specific designated fund to pay on these claims.

I'm in favor of personal responsibility, but here's the problem: if I want my client to be compensated from the police I'm probably not going to get enough money to take care of the damage done. I have no objections to taking resources from an individual officer, but I don't want the government who employed him to escape responsibility as well.

There's been some ideas floated about officers needing to carry their own "police insurance" - but I'm not sure this would solve any of the intended problems. It might become a benefit that the police unions negotiate under the collective bargaining agreement, so we don't really solve the problem. We're just paying more money for private insurance to cover those individual officers. I'm really only lukewarm on this idea.

Here's one of my personal favorite ideas: a private citizen oversight panel to review use of force, claims, law suits, and all shooting cases. This panel can be comprised of private citizens, police officers with special knowledge of use of force, prosecutors and defense attorneys instead of these cases being reviewed by the internal affairs division of police departments.

How often do you receive threats to your safety and/or life that you suspect originate from law enforcement officers, either directly or indirectly?

Not anymore. I don't know why.

Most of my cases are very high profile and I think people are afraid that I'll go to the newspaper if they try something shady. Or they know the tactics don't work on me.

I'm also a grandma - who would threaten a grandma?!?

Isn't falsifying records a felony? If a cop lies on a police report, why isn't that cop charged accordingly?

There are a couple factors at play here.

The odds that someone knows it's a lie (other than the defendant) is small.

If you think about it, only about five people on the planet will read most police reports. There's the writer of the report, the sergeant of the writer who reviews the report, the DA, the defendant, and the defense attorney. No one believes the defendant or the attorney when they call the officer a liar. But, if in the course of either the criminal case or a civil case you prove that the officer lied that can be the basis for criminal charges. But police are never charged criminally for their conduct.

Which ultimately is a cultural issue. The police departments and prosecutors are so in bed with each other that I almost see prosecutors become cop-groupies. And so the prosecutors tend to defend the police even if it's something that may not be truthful. Or they fail to look at a case fairly and objectively. Thus we have a contagion of bad prosecutions and innocent people being convicted.

The Innocent Project really shows that we have a huge problem with prosecutorial overreach or straight up malicious prosecution.

One last point, if an officer is determined to be one who falsifies reports or testimony good prosecutors will put that cop on what's known as a "Brady List". In criminal cases prosecutors are obligated to provide what's called Brady Material, which is material that tends to show the innocence of the defendant, otherwise known as exculpatory evidence. An officer who is not honest, falsifies evidence, or fails to hand over exculpatory evidence must be disclosed to the defendant. Some prosecutors have what's known as a Brady List that they put police officers on who have a reputation for dishonesty. I had a case where I won a jury trial in a civil matter against an officer who falsified a field test of a drug. It was not a criminal case, it was a civil case, and that jury verdict caused that officer to be placed on the Brady List and he was eventually fired because he could no longer work as an officer. No one would call him to testify, etc.

How successful have you been over the years at fighting police and prisons for mistreatment?

1. If your metric is money or win/loss record, I get great results for my clients.
2. If your metric is policy, I have won enough issues that judges have written opinions based on my work which have changed the law. These opinions also get cited by lawyers around the country. Which is just the coolest feeling. Kaady v. City of Sandy changed the concept around deadly force to include Tasers in Oregon. Changed the Relation Back Doctrine for federal rule of civil procedure 15 which gives you more leeway to plead against an unknown defendant until you can figure out who they are. Anstett v. State of Oregon changed the standard of care for the treatment of Hep C and other communicable disease in the prison system. I've been very successful on defeating summary judgement on qualified immunity, but I'm not sure I can encapsulate this in one case, it's a compendium of cases over a career.
3. If your metric is justice, I believe that simply fighting and giving the underdog a voice is a win.

What do you think about the new "autonomous zone" in Seattle and its new "Rapper/Warlord" leader? Is this kind of balkanization of urban centers an acceptable price to pay for stopping police violence?

I don't know anything about the Rapper/Warlord leader.

This is a great question. I assume you're asking about whether or not creating a police-free zone or a "country within a country" is an acceptable response to the current state of the policing policies.

It is a sad and tragic comment on our society where we are so afraid of the police we have to create safe zones for ourselves. They are likely illegal. I think that civil disobedience is always good on important issues. This is one of the highest forms of civil disobedience I've seen and enormously creative. It's like we're on strike against the police, the people in Seattle are saying "you can't come in here until you get your shit together". I think under the present circumstances is not a bad response to save lives. But, we have to fix the core problems so that we can live as a united community. That is the real goal.

Power to the people!

Who can legally, fairly and impartially investigate, indict, arrest and prosecute police?

Is this a trick question? Right now, no one. And that's part of the bigger issue. It's usually the prosecutor in the location where the crime occurred. Most prosecutors won't prosecute their own cops unless there is a huge and overwhelming public outcry and it becomes politically expedient for them to do something.

Before the present administration the federal department of justice did a good job of pursuing officers criminally for civil rights violations. That is not happening now.

Is a class action against police unions a thing? Or even possible?

A police union, probably not because it does not have direct contact with citizens in order to cause harm. You could ask, what if unions protecting police ultimately causes harm, but the unions are too remote from the acts which cause harm for a lawsuit to likely be successful.

Class action against police agencies for policies, procedures, or conduct which harm people would be an interesting route to go.

Does the Oregon constitution give you different points of law compared to the US constitution?

This is a very good question.

You cannot sue for Oregon Constitutional violations. It's stupid, but it's the law. The Oregon Constitution actually goes further in protecting citizens than the federal constitution but unfortunately you really can't bring a separate civil action for those violations until the legislature tells us that we can. We need a state equivalent to 42 USC 1983. That's the homework.

Do you ever feel like your efforts are futile?

I do get discouraged. I do get depressed. But I always ask myself if not me then who will do this? Someone has to fight these battles. I don't think that what I do is futile, but it's always uphill. Sometimes I'd really like to do the downhill trail.

What would be a reasonable reform of the qualified immunity doctrine?

Completely abolish it. It has no place. We've been litigating civil rights cases since the 1980s and if the cops don't know what's unconstitutional by now, they never will. Graham v. Connor has existed since 1989 and it has not been modified, changed, or in any way adjusted. They should just fucking read it and shut up. Why should they get a special defense that no one else gets?

Did Jeffrey Epstein kill himself or did the prison guards frame his death to look like a suicide? Has there been other instances similar to this where prisoners mysteriously die and it is ruled a suicide?

I have an uninformed opinion...

Jeffrey Epstein didn't kill himself.

What, if any, circumstances do you think are acceptable reasons to use solitary confinement? How does that contrast with the legally required justifications to use solitary confinement (are there any justifications necessary)?

I honestly don't believe solitary confinement is an answer to any problem. I recognize that sometimes folks need to be separated for safety reasons. But every client I've had who has been in solitary (SMU) becomes almost psychotic with worsened behavior for an extended period of time (months or years). It has a huge and immediate impact on social creatures like human beings.

Treatment, counseling, behavior focused work is much better. If the goal is rehabilitation rather than punishment, then solitary confinement has no place in our justice system.