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By David W. Silek
Warren County, Va.

For the past week I have thought about this horrid picture and what it should mean to each of us. Every single American should look at this horrible picture of a dying George Floyd, not just for a second, but for a long while. Then run through your memory and think of all the men in your family and life.  Now, and after seeing the look on Mr. Floyd’s face, replace his face with the face of your father, or your grandfather, or your son,  or your brother, or your uncle, or your great uncle, or your cousin, or your best friend.  Then imagine how it felt with the knee of a law enforcement officer pressed down on his back and neck, face pressed into the hard pavement and slowly having life itself squeezed out of him.  Why do that?  Well the answer is easy, it could just as easily have been you or your loved one that had their life extinguished by a rouge cop, also known as a murderer. Because it could be you or your loved one who is killed next as George Floyd was by this officer—according to the official Medical Examiner’s report—and those who were standing around doing absolutely nothing but shooing away people who were horrified as this poor man begged for air and thus his life. Because it could be your loved one sitting in a jail and ignored while he slowly died due to the jailer’s refusal to provide him life saving medical services. 

These are prime examples of what is wrong, not just with law enforcement, but with our society in general. When did people decide that it was ok to just let those in authority murder people. Didn’t we learn anything from the Germans that just stood and watched as Jews, Arabs and gays were lined up and killed or carted off to be murdered in ovens or worse? Or when the communists started collecting people to murder who did not agree with the “new way of thinking” in Russia, the Eastern European countries and China?

At the time of the signing of the aspirational Magna Carta (oh wait – some may not know what that is since we no longer teach history very well in public schools…)  The phrase Magna Carta, (which is Latin), meaning ‘The Great Charter’, is one of the most important documents in Anglo-American history as it established this very simple principle called the “Rule of Law,” that everyone is subject to the law, even the king (and thus the police), and guarantees certain rights of individuals, such as the right to justice and the right to a fair trial. One of those principles states in part, “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land,” remains sacred in Anglo-American jurisprudence.  These rights and principles and those which flow from them have been fought for and which are enshrined in the American Constitution and the Amendments thereto are vital to our continued existence as free men and women. Make no mistake about it, if the agents of the government do not have to live under the same law as you and I, the entire concept of “We the People” being free is over.

Was America perfect at its founding? No, it was not. But since 1789, freedom in this country has been a subject of expansion, not retraction. That is the American path and way. The expansion of personal freedom and liberty, not limits on it. And what makes that possible is the Rule of Law. Our freedom and our liberty depend upon it. The Rule of Law secures these rights. As a result, the police must live under the same laws that the rest of us are held to. Without exception or deviation. 

When I was 16 a rogue cop started me on a course to law school. That night I decided that I needed a law degree to protect myself from the police! I was mistreated by this policeman in front of my grandmother’s house. The cop pulled me over and when I asked why I was told “you look suspicious in this neighborhood.” I was driving my mother’s Cadillac Eldorado. I was a skinny dork with big glasses, who may have weighed 115 pounds wet. The next day I complained to the chief of police who required the policeman to apologize to me saying “he is new and has a John Wayne complex.” I did not know what that meant, so I asked the chief about it. He explained it to me and I still reject that such behavior is ever to be tolerated. No cop is above the law and no cop is ever to be more valued or protected than any other citizen. It is a very simple principle, but if we as a society are not vigilant, we run the risk of losing our liberty.

I have several friends, not just acquaintances, but friends who are law enforcement officers who I like and respect very much. They are people who I would trust, and do trust with my life and that of my family. They are professionals and do their job in a professional manner, always. I know others, due to my work in criminal law and family law who do not always do their job well. Ask any criminal attorney about certain LEOs and you will get information. Whenever an LEO disrespects a taxpayer in an uncalled for manner, they should be given just one warning. If it happens again or if they violate the rights of a taxpayer, then they should be fired immediately.  It is really that simple. Just like retail work or any other job, insult the customers and you lose your job. If too many customers complain about a poor attitude, such employees deserve to be fired. Same principle applies to the police.  We pay LEO’s to do their job well, not halfway, not below average, but do it right and do it well. Do your job and do it well, do it fairly then everybody is happy. But if you do not do your job well or only halfway or below average and not fairly, then it is time for a change. 

In the matter of George Floyd, all four of the officers involved in my mind are all guilty of felonies, namely Derek Chauvin, Thomas Lane, Tou Thao and J. Alexander Kueng. How many times did these four criminals have complaints about their conduct? How many times were they given another opportunity to hurt people and again violate innocent people’s constitutional rights? Why were they not fired after the first complaint? How many times must taxpayers suffer from the abuses and violations of their constitutional rights by LEOs? I see not a bit of difference in a police department being aware of an officer’s prior bad acts and giving him or her another opportunity to hurt someone than the Catholic Church being aware of a priest hurting people and allowing that priest another opportunity to do so again. What is the difference? 

So what should we as citizens and taxpayers do? Are we helpless? 

The answer is no. 

There are several remedies available to us, at least in Virginia. 

One night while sitting at a traffic light, as the light turned green I started to proceed into the intersection but slammed on my brakes when I saw out of the corner of my eye a police car quickly approaching that had neither its siren or flashing lights operating. It ran the red light and could have hit me. So I pulled the cop over at the next intersection and stopped the car and then had the cop pull off the road and called for her supervisor. A citizen’s arrest in its purest form, so to speak. This cop would later be terminated from the department and ended up being arrested in another county when she flashed a badge that she did not turn in when her employment with the Front Royal Police Department ended. But I was afraid to go home for over a month. How sad is that? I stand up for making the police obey the law, that ancient concept that the king and his agents must live under the same law that I have to live under, and I am afraid to go home. I would only return to my home under the cover of night for several months just because I feared retaliation for believing that the police should obey the same laws that We the People must obey. See a problem here?

I have watched a video of a client’s son dying in the regional jail over the course of two days as his medical needs were neglected as he slowly died at the hands of law enforcement officers and a nurse! His family tried telling the jail staff of the challenges facing him but they would not listen. I would never ever want any loved one or friend of mine to be put into that regional jail. The utter disdain for life there is a real problem. 

So what should we do? 

We should watch out for our brothers and sisters when we see injustice occurring. We must police the police! If you see a single person pulled over and swarmed by a multiple cops, stop, watch and record it.  Keep your distance, but record away. If the police are doing their job correctly, there is not one reason they should have a problem with you recording them. If they screw up there is video you can get to the press or a defense attorney for the accused, which may help or protect the accused. If they are hurting someone or doing something that could kill or cause permanent injury, then act. Do not sit by and watch some cop kill a fellow human being. Call 911 or take other appropriate action.  At what point do we think it is ok to sit back and watch as one, or two, or three, or in this case four cops kill or watch as a fellow human being is killed? Abuse is abuse, and it should never ever be tolerated. If you can’t or do not wish to make a citizens arrest, then go to your local magistrate and if the cop committed a crime in your presence and you can testify to such, swear out a warrant for the arrest of the cop. The magistrate will without a doubt give you kickback, but demand to speak to a magistrate from another jurisdiction to swear it out if the local magistrate in your county will not do so. I have clients that have had to do this. But it can be done. It is called equal justice. Ask yourself this question, “Would I be getting a ticket or summons for arrest or warrant for arrest if I did It in front of the police?” If the answer is yes, then do it.  They should have a taste of their own medicine which they so freely dispense. 

We need to elect legislators who will change tort law to remove from bad cops and from their agencies that employ and defend them, their tort liability shield and immunity from certain acts. People need to be better able to access the courts in these cases. 

We as free people have an absolute right and duty to hold accountable our law enforcement officers and ALL GOVERNMENT OFFICIALS for their errant actions or failures to act in their official capacity and for their willful violations of the rights of our fellow citizens.   The ACLU has a proper role to play in this area of law. The time for talking about reform has come and gone. The time to reform is now. No more study is required. Action is required. So to quote Ronald Reagan in his first inaugural address “We must act today in order to preserve tomorrow. And let there be no misunderstanding–we are going to begin to act, beginning today.”

The author is an attorney in Vienna, Va. He may be contacted at dsilek@sileklaw.com.