By ART CHANCE
Both the 5th and 14th Amendments to the U.S. Constitution guarantee that a citizen, and in some cases a person who is not a citizen, cannot be deprived of life, liberty, or property without due process of law.
The Constitution does not establish a substantive right to any particular process, but rather guarantees that any process that stems from the Constitution itself, from statute, or ordinance, or by contract must be afforded before a citizen or a person can be deprived of life, liberty, or property.
Due process is going to become very important and likely very much lied about in the coming weeks and months as we endure the lynching of the officers associated with the deaths of George Floyd and Raychard Brooks.
Before the screeches of outrage begin, while there are lots of questions still to be answered, the only evidence we have in the George Floyd case are the videos. In the videos, it is graphically evident that Officer Derek Chauvin used excessive and unreasonable force against Floyd and is guilty of some degree of homicide.
I couldn’t be seated on a jury in the case because I have formed a conclusion as to his guilt and only a credible challenge to the authenticity of the video would dissuade me.
The Brooks case is much more subtle. The reason I style it “a cop lynching” is that none of these officers have been afforded due process and it is extremely unlikely that they can get a fair trial.
The mob is going to demand their lives, or at least their lives in prison, or they’ll burn cities again and feckless Democrat mayors and governors will not oppose them.
In 1986, a case came to the U.S. Supreme Court involving the firing of a Mr. Loudermill, an employee of the Cleveland Board of Education. The Cleveland Board belatedly did a background check on Loudermill and found that somebody named Mr. Loudermill had a conviction in Texas.
The Board assumed that the person in Texas was their employee, concluded that he had lied to them by denying that he had a conviction, and they fired him.
If only the Cleveland Board had called Loudermill in and asked him, “Are you the Mr. Loudermill that has this conviction in Texas?”
Employment law is replete with cases that demonstrate the old saw of “bad cases make bad law,” and Loudermill is among the best, or worst, examples. The board never did a thing to establish whether Mr. Loudermill was actually the person that had the conviction or to establish whether or not he had lied to them; they just fired him.
He sued and changed the relationship between public employers and public employees.
Loudermill had successfully and uneventfully performed his duties for the Board. He had achieved “permanent status” by completing a probationary period. During probation, a public employee can be dismissed for “any reason, no reason, but not an illegal reason.” After probation, an employee becomes permanent and can only be removed for just cause.
The U.S. Supreme Court concluded that achieving permanent status confers a “property right” in a public employee’s job. Since permanent status is a property, that property can only be taken by due process of law. Reasonable minds can disagree with this analysis, but I don’t really disagree with it.
Loudermill v. Cleveland Board establishes the Constitutional minima for due process for public employees threatened with discipline or dismissal.
At minimum, a permanent public employee must be given notice of the charges against him/her and in such specificity that the employee can form a defense. The employee, and in the union environment his/her union representative, must be given the opportunity to respond to the allegations and to point out any mitigating or obviating facts.
The employer must give consideration to the employee’s statements; the old “let them tell their story and then pull the dismissal memo out of the desk drawer” strategy is a tell; due consideration was not given. That is the minimum constitutional duty for due process.
Cops commonly have much more elaborate process as a matter of contract or ordinance. The Alaska State Troopers have a Byzantine Administrative Investigation process in their contract that they got in their first interest arbitration around 1980. They bedeviled the State with it until we in State Labor Relations decided we’d had enough of process problems causing discipline and discharges to be overturned by arbitrators.
The straw that broke the camel’s back was an arbitrator overturning the dismissal of an Alaska State Trooper caught walking out of Long’s Drug Store in Anchorage with shoplifted merchandise. We vowed it would never happen again. First we vowed that arbitrator would never work in Alaska again, then we vowed to fix the problem.
In the Floyd and Brooks matters, there is no evidence that any of the officers were afforded any process. They were all fired on TV by mayors who were only pandering to the mob. We had a case like that here in Alaska a long time ago when an inmate escaped Lemon Creek Correctional Centers in Juneau and was later found under the bed of a Correctional Officer.
Gov. Hammond fired everybody in Corrections whose name he knew on TV from Anchorage; he was angry.
Nobody stayed fired.
In the Floyd and Brooks cases, the TV firings guarantee that the officers will get back pay up until a criminal conviction, and then the government will have to restart the dismissal and base the dismissals on the criminal conviction.
The days of cops letting a DWI walk away ended in the MADD days of the ‘80s, so there was no way those cops were going to let Brooks walk away, get a ride, or give him a ride home; there is too much money in DWI charges for city governments. If you know you’re not safe to drive, pitch yourself into the back seat to sleep it off. But leave the keys in the ignition, you get hauled away for DWI.
Young men, black and white, need to learn that if you resist a cop, and especially if you brandish a weapon or threaten his/her weapon, you are likely to die.
You need to learn what we long-hairs of the Sixties learned: Say, “Yes, officer.” You can defend your constitutional rights later when there isn’t a gun pointed at you.
These mayors pandered and the TV firings will be like wetting your pants in a dark suit; it will give them a warm feeling and nobody will notice. If they can empanel an “OJ Jury,” they might get convictions, but few of them are likely to survive appeal.
Unless the video is discredited, Officer Chauvin is likely to get convicted of something eventually, but I think Attorney General Ellison overcharged him in response to the mob; manslaughter was a reasonable and convictable charge. In things like this, if it is simple, you don’t yet know enough.
Art Chance is a retired Director of Labor Relations for the State of Alaska, formerly of Juneau and now living in Anchorage. He is the author of the book, “Red on Blue, Establishing a Republican Governance,” available at Amazon.