State Police Power in the United States

State Police Abuse: Attorney John Burris

By Dashka Slater, based in Oakland (California), who is the author of five books for adults and children, including The Wishing Box, a novel.

In 1994 he was part of the team that won a $3.8 million jury award for Los Angeles police-beating victim Rodney King. In 2003 he and Berkeley attorney James Chanin represented 119 plaintiffs in Oakland’s infamous “Riders” police-abuse case, winning a record $10.9 million settlement and a consent decree that placed the city’s police department under a court monitor for five years (it has since been extended). In 2008 he won $2 million for 16 Asian-American women who had been molested during traffic stops by an Oakland police officer named Richard Valerga. Other recent cases include a $1.2 million settlement for a man paralyzed after Oakland officers knocked him over a fence, $2.6 million for a man paralyzed after he was shot by an officer in Napa County, and $395,000 settlements for two men who died after they were shocked with Taser stun guns in Pacifica and San Leandro. Between his many misconduct cases, his regular appearances as a commentator on CNN’s Nancy Grace show, his work as a TV analyst during the O. J. Simpson murder trial, and a list of celebrity clients that has included Gary Payton, Jason Kidd, Latrell Sprewell, Barry Bonds, Tupac Shakur, Dwayne Wiggins, and former San Francisco Police Chief Earl Sanders, Burris is nearly as well known as his late friend Johnnie Cochran—and just as controversial.

Among rank-and-file police officers, he is often caricatured as a race-baiting advocate for the bad guys: One baldly racist joke posted on several police humor websites has him traveling with Al Sharpton and Jesse Jackson to protest the death in a house fire of “Nigerian con artists,” Kenyan “welfare cheats,” and “Hispanic gangbangers.”

In urban black communities, on the other hand, he is just one cape shy of superhero status.

“Thurgood Marshall indicated that the rite of passage for a black male in this country is a negative encounter with the police,” says Geoffrey Pete, vice president of the Oakland Black Caucus. “If there’s a modicum of truth to that, [Burris is] a hero. It extends beyond the legal community to the downtrodden, the guy whose pants are sagging. They know he’s the one to go to.”

That much became clear early on the morning of New Year’s Day this year, when an unarmed 22-year-old man named Oscar Grant was shot dead by a transit police officer on the platform of an Oakland BART station. Grant and his friends had been taken off a train sometime after 2 a.m. because they had been brawling with other passengers. A chaotic scene ensued, some of which was filmed by people on the train stopped in the station. The blurry cell-phone videos that resulted indicate that Grant may have kneed a BART officer named Tony Pirone in the groin, and that Pirone may have slugged Grant in the face. But one thing that no one disputes is that Grant was face-down on the ground with his hands behind his back when a 27-year-old BART police officer named Johannes Mehserle unholstered his gun and shot him in the back. Mehserle, who has since been charged with murder, has said that he thought he was wielding his Taser.

Burris was quoted in the first news reports about the incident as an expert on Taser use and police shootings. Two days later he was in the news again, this time as the lawyer for Grant’s family, which has since filed a $50 million federal wrongful-death suit against BART, its police chief, Gary Gee, and officers Mehserle, Pirone, and Marysol Domenici. For the next month the case, and the media frenzy it provoked, would be Burris’s full-time occupation. “The press galvanized around this,” he says. “The public galvanized around this. When those tapes went out on the wires, this was an international case-because this was the kind of case that conjured up all the feelings that people have about police misconduct, police brutality.” (…)

Legally, Burris thinks the family’s lawsuit is fairly straightforward. To get a murder conviction, the district attorney will have to prove Mehserle’s intentions, but Burris is only concerned with his actions. “At the very least, it’s negligence. It’s failure to exercise due care,” he says. Burris argues that because Grant was on the ground, he had already been subdued, and there was no reason for Mehserle to have reached for his Taser—if that was indeed what he meant to do. “If you intended to use excessive force,” he says, “then you are responsible for what happens as a consequence.”

Michael Rains, the attorney who represents Mehserle and is in many ways Burris’s opposite number, insists that the case is more complex than Burris makes out. “I remember hearing John make a statement that this is the most outrageous or despicable police action he’s ever seen,” says Rains, who also represented the officer with the most criminal charges in the Riders case. “I think a statement made of that nature—one, it was premature. Two, it was utterly irresponsible to say without knowing anything about the evidence. Three, it’s clearly going to be proven wrong. And four, he ought to try to get as much money as possible as quickly as he can before the facts are elicited.”

Seventeen days after the firm opened its doors, a 15-year-old boy named Melvin Black was shot in the back eight times by Oakland police officers. The community was in an uproar. Mayor Lionel Wilson appointed Burris to investigate.

Burris hired famed gumshoe Hal Lipset, and the two spent several months reconstructing the events that led up to the shooting. Concluding that the officers had used faulty judgment, they presented their findings in a 700-page report.

“To my great surprise, it was not well received,” Burris says now. He laughs uproariously. “Truly—to my great surprise. I thought they wanted the truth. Turns out, nobody wanted the truth. Lionel Wilson hardly spoke to me ever again.”

Burris did criminal-defense work for the next six years, but he found he didn’t have a passion for it. He didn’t like defending people he thought were guilty. When his partners wanted to do more corporate work in 1985, he left the firm and hung up his own shingle, specializing in civil right cases. Almost 20 years after graduating from college, Burris had found his life’s work.

Today, Burris has ten employees and good relationships on both sides of the police-misconduct bar. Although he has a few ardent enemies—notably Rains—he has a number of surprising friends. James Fitzgerald, a Walnut Creek attorney who is currently facing Burris in four separate death cases, says that his police-officer clients tend to have a pretty negative impression of Burris based on what they’ve seen in the press. “I tell them they should not feel that way, because he treats my guys professionally and with respect,” Fitzgerald says. “I think he’s a real straight shooter. I don’t think I’ve had a case where anybody has concluded anything other than what I’ve said.”

Burris lives with his third wife, law professor Cheryl Amana Burris, in a secluded home in the Oakland hills. The walls of the house are covered with art that the two have collected in their travels; photographs of their large, close-knit families; and a medley of framed newspaper articles and awards. It is the home of a successful man, with two Porsches in the driveway, a Jacuzzi and swimming pool in the back, and a grassy lawn where his grandchildren can play. Burris knows he could be thinking about retirement, and he is carefully passing on his years of acquired knowledge to his two young associates, Benjamin Nisenbaum and Adanté Pointer. He doesn’t know if he’ll keep practicing into his 80s like some attorneys, but he has trouble imagining hanging up his briefcase for good. “I don’t know if I can turn my juices off forever,” he says.

After all, the cases keep coming. He sees fewer police-beating cases than he used to, but he still has a steady supply of shootings. And recently he has been working on a new category of case—men who say they were strip-searched by Oakland police officers. He represents 42 of them, along with two other lawyers from the police-misconduct bar, Mike Haddad and Julia Sherwin. (…)

On March 22, less than three months after Oscar Grant’s death, a paroled felon named Lovelle Mixon shot and killed four Oakland police officers after a routine traffic stop. It was one of the deadliest encounters in California law-enforcement history, and coming on the heels of the Grant case it seemed to underscore the yawning chasm between police officers and African Americans. Both communities could point to recent events as proof that they were in constant danger of unprovoked and lethal attack. “Look,” each side might argue, “this is what we face every single day of our lives. It doesn’t matter what we do—those people are out to get us.”

Yet while most people of all races would agree that being a police officer is a dangerous business, far fewer would agree that simply being black is. In fact, the contention that people of color are still singled out for ruder, rougher treatment by police officers strikes many whites as bellyaching or race-baiting. And that cultural divide is what makes police-misconduct cases so difficult to try. “The worst thing that can happen for a black person is to take a case to a jury—in a police case,” Burris says. Jury pools tend to be predominantly white anyway, and defense attorneys are likely to use their challenges to remove the few African Americans included.

Still, Burris tries one to three cases a year, and he settles another ten to fifteen. He balances his misconduct work with employment-discrimination cases and the occasional criminal case. “You need easy cases from time to time to offset the very tough ones,” he says. “There are times I’ll make a disproportionate amount of money for very little work. Other times I work my fanny off and lose money. That’s just the way it is.”

In most police cases, Burris sues for assault, battery, or wrongful death, or he files a federal civil rights action pursuant to 42 U.S.C. section 1983, which is the enacting statute for claiming violations of the First, Fourth, Fifth, Sixth, and Fourteenth amendments. For state civil rights actions, he files under Civil Code section 51.7 (the Unruh Act) and 52.1 (the Bane Act). But whatever statute he invokes, he knows his work is cut out for him.

“When you’re a plaintiff in a civil rights case, you can’t sit back and expect to win,” says civil rights attorney Chanin, who has worked with Burris on several high-profile cases over the years. “You have to work harder and do more because people want to believe the police, want to believe they do a good job—as often they do. But in our cases they haven’t, and that’s a hard mountain to climb. You have to be committed. You have to believe, and you have to act on your beliefs-otherwise you’re going to lose. And you can’t lose these cases too often—they’re very expensive to bring.”

In trial, Burris works to overcome jurors’ skepticism with equal portions of logic and emotion. He’ll try to make jurors feel what the plaintiffs felt by demonstrating what happened, lying down on the floor to show how they were beaten, screaming to show their reaction to the pain. In a Taser case, he might play a recording of the crackling hiss of a Taser shock to evoke the duration and intensity of the electrical current. But such demonstrations work best when coupled with evidence—medical experts who can explain the nature of an injury, pathologists who show the path of a bullet, or police-practices experts who can describe what an officer is supposed to do in a given situation and why. In one particularly memorable case, a police officer was accused of stomping on the plaintiff’s face. Burris used an enhanced photograph of the young man’s injury to show that the Reebok logo on the bottom of the officer’s shoe was imprinted on the man’s face.

Burris tries to be analytical about the cases he takes. He investigates the facts first, often with the help of a private investigator, visiting the scene and looking for corroboration of his client’s story in the form of witnesses, photographs, or video. He knows that juries are less likely to favor plaintiffs who were drunk, high, combative, or carrying a weapon at the time of the incident, and he generally won’t represent drug dealers: “If you’re in that life, chances are I’m not going to take your case,” he says.

But such sober assessments can be trumped by a single criterion—what Burris calls the “mad as hell” effect. If the case gets under his skin, he’ll figure out how to work around the fact that the victim had just stolen a pizza truck or was carrying a shotgun in his pants.

” ‘Mad as hell’ is the one that counts,” he says. “It’s gotten me into trouble, of course, because I’ll get into a case and discover the facts are a little bit different. But that doesn’t happen too often.”

That seems to be what happened in 1992, when a parolee named Ronald Griffin charged that four Berkeley police officers handcuffed him, drove him to an industrial area in West Berkeley, and beat him unconscious. Burris and Chanin enthusiastically took the case—Burris had had a high-profile case against one of the officers before. Attorney Rains recalls that Burris was sending out press releases and making accusations before any investigation had been completed. And it turned out that Burris spoke too soon.

Griffin’s story didn’t check out. Two of the officers were writing a ticket in another part of the city when the beating was supposed to have occurred, and it began to look as though Griffin had concocted the story as an audacious alibi for his own criminal misdeeds on the night in question. Burris and Chanin dropped the case. “The claim was fraudulent—it was bogus,” says Rains, whose officer clients were subsequently exonerated of any wrongdoing. “I don’t remember John apologizing about that.”

Burris says that when his investigation shows that events didn’t go the way his client claims, he’ll sit down with the client and lay it on the line. “Comes a time when you have to say, ‘I hear you, but this is what I think this case is,’ ” he says. Defense attorney Fitzgerald says he’s seen Burris show up personally for a deposition of witnesses in a case and decide on the spot to drop the claim based on what he hears. “If you can prove to John that he doesn’t have a good case, he will dismiss it,” Fitzgerald says. “I respect him for that.”

Burris argues that dropping a weak case is a service to the client as well as the attorney. “It’s very difficult for plaintiffs to have their case rejected,” he says. “Particularly for blacks. Because they have such faith in the system.” He smiles wryly. “Poor things.”

Burris does have faith in the system, even if that faith is tempered by wariness. He doesn’t typically refer police-misconduct clients to internal affairs departments because he doesn’t trust the process. But he does believe in the healing power of citizen review boards, where complainants can hear a police officer explain his or her actions. “The vast majority of people that come before [citizens review boards] just want to be heard,” he says, slamming the table for emphasis. “Generally, if the police officer is open and not defensive, the person will understand what the police officer was thinking. I’ve seen them shake hands. It’s this constant struggle of secrecy and isolation that really creates problems.”

In 1999 Burris published a book called Blue vs. Black, in which he proposed a series of specific measures that police departments could take to prevent, identify, and eliminate abuse. Four years later he and Chanin settled the Riders suit stemming from the actions of four rogue Oakland police officers accused of a vast array of misdeeds, including false arrest, planting evidence, and assault and battery. In addition to the multimillion-dollar payout for the plaintiffs, a consent decree mandated many police department reforms, among them new training procedures, new requirements for reporting the use of force, and new procedures for investigating complaints.

To oversee the changes, Burris and Chanin agreed to meet once a month with the department command staff and an outside monitoring team. More than six years and three police chiefs later, the monthly meetings continue. Both the lawyers and police department officials describe the atmosphere at the meetings as collegial; and as evidence that the reforms are working they point to recent revelations that Oakland officers falsified affidavits for search warrants in drug cases. The misconduct was uncovered by the OPD’s own internal affairs division and led to the firing of four officers. “It shows an agency maturing, that we were able to investigate this and see if there were wrongs done, and fix them,” says Oakland Police Captain Paul Figueroa, the inspector general responsible for the negotiated settlement agreement. “We haven’t always been at that place.”

I asked Figueroa about how Burris is viewed in the department, given the number of times he’s filed suit against it. He was silent for a moment, thinking. He has known Burris for years-he went to high school with one of Burris’s sons-and he considers him “a great guy.” But he also knows that police officers generally don’t adore the person who is constantly suing them. “When we become police officers, we swear to uphold the Constitution of the United States, the constitution of California, and the charter of the city of Oakland,” he said at last. “The issues John deals with are constitutional at their core, and that’s something we’re all sworn to defend.”

A few days after my conversation with Figueroa, I spoke on the phone with Ron Davis, who spent 20 years with the OPD. In 1988 Burris represented Davis’s then-partner, Derrick Norfleet, who was badly beaten by fellow officers while working undercover. (He later represented Davis’s wife, Janeith, in an employment-discrimination suit.) Davis is now chief of the East Palo Alto Police Department, and he says that those who characterize Burris as a leach or an ambulance chaser are missing the point. “To respect John Burris is to respect the system,” he told me. “He’s a necessary and critical part of the criminal justice system. Police departments are entrusted with so much power and responsibility, there have to be checks and balances. The whole idea is, can you be aggressive without being abusive? Can you be effective and ethical at the same time? Communities deserve both, and they should never be forced to pick.”

Then he laughed and added a caveat. “If you’re a police chief, you don’t want to see John. I like to see him socially—but I don’t want to see him in my conference room.”

State Police Power and the United States Constitution

According to the Encyclopedia of the American Constitution, about its article titled STATE POLICE POWER, the police power of the states is one of the most important concepts in American constitutional history; yet, like privacy or freedom of contract, its historic significance derives from usage and application, not from the language of the Constitution itself. Nowhere in the Constitution appears a provision about state police power.