Policing the police: Morgan Ricketts and a new coalition of trial lawyers have stepped up to protect the rights of citizens protesting against excessive police force Monday, August 3, 2015
Consumer attorney Morgan Ricketts organized Excessive Force Lawyers to help protesters in demonstrations against police shootings.
By Lucas Bensley
“I was struck by the image of the justice system as a machine – a cold, unfeeling, terrifying juggernaut that, once awakened, may very well destroy … one’s career, future and family”
–Morgan Ricketts, Los Angeles trial lawyer
This portrayal of the criminal justice system as a heartless Goliath has become all too real for Americans involved in mass protests against excessive police force and systemic racism in the aftermath of officer-involved deaths of unarmed citizens in New York, Cleveland and Ferguson, Mo. On many fronts, peaceful protests have turned into ugly confrontations and arrests have mounted.
Morgan Ricketts and a new coalition of trial lawyers have stepped up to help.
Last year, Ricketts co-founded the Excessive Force Lawyers, a network of attorneys who provide mostly pro bono counsel for citizens involved in civil rights protests. Their goal is to protect the free-speech rights of aggrieved Americans and the sanctity of the constitution. To do so, they’ve amassed a cadre of lawyers – so far they have 20 in half a dozen states, including California – willing to hit the ground during demonstrations to provide protesters with sound legal advice and, if necessary, help after an arrest.
While a night in jail has historically been a badge of honor in the civil rights struggles of America, the potential penalties have escalated in recent years, with heated interactions between protesters and police in some cities leading to serious charges. Ricketts cited a recent case in which authorities charged a protestor with a felony punishable by up to four years in prison, all for trying to tug away an underage friend corralled by police.
Excessive Force Lawyers has worked to minimize such arrests and harsh penalties by providing legal advice to keep protesters aware of their rights and increase their odds of avoiding altercations with police.
“Arrests,” Ricketts explains, “take a serious toll on protest movements.”
Mass arrests are a tactic, she said. Arrests thin the ranks of demonstrators in the near term, while the threat to rank-and-file demonstrators of financial penalties, job loss and even prison terms can mute a protest movement over time.
On the ground, the counseling provided by Ricketts and her team involves direct interaction with protesters as they voice their demands in public. Kirsten Jackson, an attorney who co-founded EFL with Ricketts, remembered when Ricketts helped to lead and advise a protest with Black Lives Matter of Los Angeles. “Thanks to Morgan, we were able to avert any legal issues, and were able to shut down three intersections without any arrests,” Jackson said, noting that the protesters have now become acquainted with attorneys they can rely on in the future for questions and advice.
John Raphling, a criminal defense attorney working on an ongoing case with Ricketts, added that, “We can do things through litigation, but we can do even more to protect people on the street by standing behind them” and offering advice to avoid arrest in the first place.
Prior to attending Harvard Law School, Ricketts seemed an unlikely candidate for civil rights and criminal defense work. In fact, she entered law school hoping to become a prosecutor. Today, about 70% of her practice consists of civil litigation – half of it civil rights cases – and 30% is criminal defense, much of it pro bono.
But there was a time she considered fighting on the other side of criminal law.
“Before law school, I was somewhat conservative and pro-law enforcement,” Ricketts recalled. “I supported punishing gangs and criminals and entered law school with the goal of becoming a district attorney in Los Angeles.”
But while attending Harvard Law School, her views were challenged by firsthand experiences. In 2009, during her last semester, Ricketts participated in a clinical program designed to give third-year students real-world experience in criminal law. She hoped to work with the local prosecutor’s office, but instead was assigned to criminal defense. Interacting with her defense clients made Ricketts question the way she had viewed people charged and convicted of crimes.
“I realized that my clients were not some faceless evil group of ‘criminals’ going around hurting people,” she said. “There was more to them than their worst five minutes.” As she interviewed her clients, Ricketts came to understand that these people wanted to do right by their mistakes and not be defined by them.
Another incident during law school forced Ricketts to recognize problems of police profiling and implicit bias that she would come to confront in her civil rights casework. During a solo camping and biking trip, Ricketts was forced by circumstances to overnight in an unfamiliar vacant lot.
Soon after going to sleep, she awakened to flashing lights and the sound of sirens outside her tent. “That’s when I realized they (the police) were there for me,” Ricketts recalled. She slowly emerged from her tent to see at least four police cars and multiple officers training their flashlights on her tent. Although the officers at first seemed hostile, Ricketts said, “When they saw me, most of them left and the one that stayed behind told me I was on private property and had to leave.”
The reason for the large response shocked her: “It turns out, they had gotten a 911 call that a black guy with a knife was in the area. But even they acknowledged it was likely that someone had made it up to get a faster police response to get me to leave.”
If she had been homeless or a person of color, Ricketts said, she worried that her encounter with police could have ended in tragedy.
James Boyd experienced just such a tragic end during an encounter with police in Albuquerque, N.M. on March 16, 2014.
Boyd, a 38-year-old diagnosed paranoid schizophrenic, was illegally camping in the foothills outside town. Police called to the scene shot Boyd after he allegedly pulled out a knife. Officers then proceeded to fire multiple bean bags at Boyd and released a K-9 unit on him as he lay on the ground, unresponsive to commands to drop the knife. The city of Albuquerque reached a $5 million settlement with Boyd’s family, while a special prosecutor is seeking second-degree murder charges against two officers who were involved in the shooting.
An Ongoing Struggle
Morgan Ricketts’ unnerving experience with the police became an important part of her motivation to help protesters as well as victims of police assaults.
Ricketts is assisting in the case of a citizen arrested in retaliation for videotaping a police arrest in Los Angeles. John Raphling, who brought on Ricketts as a co-counselor in this case, shares her concern about the rights of protesters and the constant threat of arrest.
“Some groups conduct civil disobedience actions with the intent of being arrested for violating the law, while others seek to avoid that,” Raphling said. “As their counselors, we inform them of what charges they may face for their actions and how best to avoid them.”
Their work to protect the rights of citizens to videotape police encounters is especially prescient. Video evidence capturing the deaths of Eric Garner, Walter Scott, and other people of color killed by police was crucial not just for contesting police accounts of these incidents, but to bring the issue home to the broader public.
Aside from providing counsel and defense for protesters, Ricketts and other advocates of police reform have begun seeking change at the statehouse and the courthouse.
Earlier this year, Ricketts testified before a legislative committee in Sacramento on the use of police cameras. She also appeared on a panel held by Consumer Attorneys of California at the state Capitol alongside famed civil rights and criminal defense lawyer Mark Geragos and the ACLU’s Natasha Minsker to discuss civil rights in the aftermath of Ferguson.
At the courthouse, meanwhile, Ricketts and Excessive Force Lawyers have undertaken an effort to better utilize the Pitchess motion procedure, by which a defendant in a criminal defense case can request to see the personnel records of a peace officer if they allege that said officer engaged in misconduct. But, Ricketts noted, there are many hurdles and obstacles in this process.
First, a defendant’s attorney must convince a judge that they need access to an officer’s records because they relate to their client’s declaration of how events led to their arrest. “Often this entails contradicting the police officer in detail as to what happened,” Ricketts explains. “But when you do this, it exposes both your strategy and your attorney-client communications to the other side.”
This problem can be mitigated by a defense motion to seal the declaration submitted in support of the Pitchess motion. Some judges, however, won’t hesitate to deny the defendant the right to seal the declaration, resulting in the defendant being forced to choose between the chance of finding something useful in police personnel records and revealing the defense strategy to the prosecution, Ricketts says.
Furthermore, Ricketts explains, judges look at the records outside defense counsel’s presence to determine what is relevant and therefore what should be disclosed. This prevents the defense from being able to present a case explaining why they should be allowed to use certain records of misconduct. Even if defense counsel had the right to be present, Ricketts says, judges sometimes take a very narrow view of what is “relevant,” and may determine, for example, that records of a peace officer having lied on his or her timecards are not sufficiently relevant to disclose in a case alleging that an officer misrepresented facts in a police report.
The defense, on the other hand, might believe it can use such evidence of dishonesty in an employment context to create doubt as to whether the police officer’s report was accurate – or simply show the jury another side of an experienced witness who knows how to appear professional and helpful on the stand. “Even when the officer’s prior misconduct doesn’t necessarily seem critical to the key issue in the case,” Ricketts argued, “the defense needs to have the ability to show the jury that this officer is not who he appears to be on the stand.”
Finally, even if a petitioning attorney is granted their request, it is never certain that past officer misconduct will make its way into personnel files. This could happen for many reasons. Victims may not report an incident, Ricketts posits, because they did not want to report to a police station after having a bad experience with law enforcement. Sometimes, complaints are not investigated for months, Ricketts continues, and then cannot be sustained.
To remedy this, Excessive Force Lawyers is seeking to, among other things, create a publicly accessible database of Los Angeles police officers in order to make past records of dishonesty or violence more transparent and easily available.
Another project the organization has been working on is to change the language of California Civil Code § 52.1. This law, also known as the Bane Act, allows people to pursue a civil action for damages if one or more persons acting under “color of law” attempts to interfere with their constitutional or statutory rights by threats, intimidation, or coercion. The ambiguity of the Bane Act’s language, however, has limited the ability to seek redress when a citizen’s rights have been violated by a public employee. Under the current interpretation of the Bane Act, as held in the case of Shoyoye v. County of Los Angeles, plaintiffs who have experienced false arrest by police officers must show additional acts of threat, intimidation or coercion in order to recover damages.
Under this interpretation, Ricketts explains, a person arrested for protesting or for exercising their right to vote, while certainly intimidated or coerced in the process, has no grounds to recover from the act unless the officer does something else to threaten, intimidate, or coerce them in the process.
The idea that “words alone aren’t enough absent a threat of violence” leaves out many victims who experience shocking interference with their constitutional rights by threats of other harms.
For instance, Ricketts cited a case in which dozens of witnesses to acts of sexual harassment in Section 8 housing would not report it or testify for the victim because they were threatened with eviction if they did so. Such threats, while not violent, certainly threaten lasting harm to discourage people from exercising their rights or reporting inappropriate behavior of a public employee.
The many different areas for reform in criminal justice and police behavior demonstrate the scope of the problem – from protester rights to police records access. Making law enforcement accountable for its treatment of people of color and protestors as well as its use of force will not be easy. The vocal opposition of police departments against reform and prosecution underscores the struggles ahead.
In this way, one could see the system as an enormous machine with diverse mechanisms devoted to exercising force to maintain order and authority, destroying people’s lives in its wake. But it does not have to be this way. With the work of attorneys like Morgan Ricketts, bringing transparency and litigation to hold law enforcement accountable, it could be different.
“If the system is a machine,” Ricketts said, “then we’re the mechanics. We’re the ones best situated to figure out how to dismantle the pieces that aren’t working, and to replace those pieces with something else that will.”
Lucas Bensley is a 2015 graduate from UCLA with a Bachelor of Science in History and Political Science.