Podcast Transcript
Paul Edelstein:
Hello. Welcome to Pulling Back the Legal Curtain. I am your host, Paul Edelstein. I’ll have my partner, Glenn Faegenburg with me most of the time. And this podcast is for all of you out there who have ever read about a court case, seen a court case, been involved in a court case, went to court, thought about court, and wondered what the hell is going on in courts.
Seems like every day we have these kind of questions and get asked them. So on this podcast, we will pull back the curtain on the mystery that sometimes surrounds the court and what happens there, and hopefully give you some answers, some interesting, some humorous, some surprising. Stick with us on Pulling Back the Legal Curtain.
So how come the message isn’t getting out in the media? So like, look, we’re recording this now. It’s January, 2023, and I watched a lot of your recordings. It’s amazing because a lot of your interviews like this on this topic go pre-COVID, no, all the way through. Why are we seeing the message even now? So now we’re in January, 2023. And when I still read the news every day or talk to jurors, and I talk to a lot of jurors, I still don’t get the message that I would disseminate on this topic, and I know that you would. I’m still getting resistance like, “Defund the police.” Crazy. And I want to go the other way.
And that seems to be … Even like my parents, if I talk, they’re older. As we age, I think it’s natural that we get a little bit more conservative and a little bit more concerned about safety. And so even my parents, who I would say are pretty liberal and very educated, when we first broached this topic, were taken aback, “Whoa. What do you mean?” And then I had to really explain and say, “Well, here’s what it means, and now what do you think?”
So I don’t know. Has the perception of this issue changed you think from 2020? George Floyd, obviously that really sparked a lot of this. I know you’ve talked about that a lot, but now we’re in 2023. Have you seen a change? You’ve seen it at the micro level because you are so knowledgeable. So you know what’s going on in local levels and governments and changes in schools? I’m talking about the street level.
Alex Vitale:
Yeah. Well, I think we’re both talking about the street level, but I think we’re talking about some other important differences. There’s what’s happening in the communities that are actually the most heavily policed, which does not include your parents’ community, for instance, although there are plenty of people in those communities who have come to rely on the police again, because of this false choice of police or nothing.
But there is now a newfound openness to this idea that we could have something other than policing. The media are not representing the interests and desires of poor people of color in general. Their advertisers, their political worldview is shaped by the same people who don’t have a plan for homelessness, who don’t have a plan for mental health services, who don’t have a plan to fix the schools, but want to invest more in downtown real estate deals instead. And so the media reflects that worldview, and they have a profound kind of anti-populism at the center of their politics.
They rely on government experts and other kinds of experts to shape their discourse, and they don’t really care what young people in East New York have to say about these issues. In fact, they think that whatever those people think, it’s almost certainly wrong. And so we’re not going to get help from those sectors.
The campaigns that make progress are rooted in community organizing. They’re holding meetings, they’re going door to door, they’re standing in front of shopping centers at a table with a clipboard, and they’re having those conversations with people about what they could have other than policing. And when that organizing is taking place, we see them win victories.
Paul Edelstein:
That’s amazing. So you are out there though, and in the mainstream media, you are really, really visible now. I mean, you’re really pretty highly in the mat. So are there other guys getting out there with your visibility that are supporting this issue?
Alex Vitale:
My visibility is not really in the mainstream media anymore. There was an opening in 2020 when I was on every show under the sun because they didn’t know what was going on. And everyone was like, “Well, this guy literally wrote a book about it. You could talk to him.” And as soon as they figured out what it really was, they said, “Oh, actually we are against this and we are not going to treat it favorably.” And that all that mainstream media attention basically dried up with an occasional exception, an NPR or a PBS appearance or something. And there’s very few voices that have access to the mainstream media right now who share these ideas because it’s not that they’re not interested, it’s that they’re against it.
So there are lots of great voices out there other than me and mostly people who come from these highly police, high crime communities of color, people like Derecka Purnell, Andrea Ritchie. There’s tons of these folks who’ve experienced what policing really is and who’ve known what violence is in their lives, and know that policing has actually often made the situation worse for them, not better. And I think it’s important that those voices be centered.
So definitely no one should choose me over them in a sense. I help out where I can, but there’s a movement, there are national conversations, national convenings, people are sharing ideas, and there are a lot of voices out there that are available. But I think all of us understand strategically the priority has to be supporting local organizing, not trying to get on the editorial pages of The Washington Post.
Paul Edelstein:
So again, you’re really advocating bottom up.
Alex Vitale:
Yep.
Paul Edelstein:
That seems really, really, really hard. Although I got to tell you, Alex, although I got to say it does align with one of my personal beliefs as a trial lawyer for all this time. We always believe … I always used to say, “Well, I’m going to try to convince eight jurors at a time of something, and then they’re going to go talk to eight spouses and eight people, and it’s going to go exponentially out.” Look, if I have a regular automobile case, I get it. That’s not an issue that affects the community. But I have other cases, and we just had a wrongful eviction case on Friday that resolved, and we really felt like we did the right thing. I’ve had a number of police cases. I had a very prominent boxing case I know you knew about where we effectuated some changes really at a legislative level.
So I kind of feel like, “All right, as a trial lawyer I’m one person, but I could maybe make a difference if I throw a rock in the water and I see these exponential rings come out from that one pebble in a pond. It could reverberate.”
Alex Vitale:
I think one of the challenges here is these groups do need legal support, and there are organizations like the Advancement Project and Civil Rights Corps and local groups like the Detroit Justice Center who are attorneys who are looking for potential impact litigation or even individual cases that can help advance the community agenda.
Now, that doesn’t mean that every individual 1983 attorney needs to turn themselves over to some organization, but I think there needs to be some communication happening, in part because these individual cases sometimes result in settlements, and those settlements sometimes include procedural demands of these police departments.
Paul Edelstein:
I’ve never been successful. Ever.
Alex Vitale:
Yeah. Well, New York is a particular tough nut in this regard because they have an army of people who are there to prevent that. But of course, the Floyd case around stop-and-frisk did bring about substantial procedural changes. And I think that we need to have more of those conversations about whether or not the attorneys are in addition to acting in the best interest of their clients thinking about that in a more holistic sense. These clients live in communities. They’re not just individuals, and what will make their community safer will make them as individuals safer.
Paul Edelstein:
That’s great. I wish that that was easier to happen and that lawyers, we’re hamstrung sometimes by having to represent an individual client having the obligation, that’s our primary obligation. Secondary obligation is all right, effectuate some change and hope you get that through the slog of litigation, which is really hard.
But I’ve gotten to the end of litigations where I’ve said, “Yeah, well, I want to see something done.” I can give you one example, Alex, that might resonate with you, a police chase case where I somehow, I won’t tell you how, but I was able to get an internal memo from the NYPD regarding what their rules were with chasing. The internal memo was so damaging to this particular case because obviously these officers completely ignored it. And I had it, and I had it in a redacted form, and I was going to use it with them. And I said, well, at the end of the case, which we were successful on, I said, “Well, I also want another internal memo sent out, and I want this next internal memo to say the following.” Did not.
Alex Vitale:
Yeah. But of course, another way the private bar has been helpful has been in things like discovery, sharing the results of discovery. And for me, one of the frustrations about some of the settlement agreements that even groups like the ACLU enter into is confidentiality.
Paul Edelstein:
But not with the municipality. In New York the municipality is not allowed to have it confidential. So I don’t think you’re going to see that with New York or have you?
Alex Vitale:
Well, not the settlement agreement, but the discovery.
Paul Edelstein:
Oh, that’s true. That could be.
Alex Vitale:
Yeah. So we want the discovery. We want to see those documents because that-
Paul Edelstein:
It’s more important than the check they wrote. That’s right.
Alex Vitale:
That’s correct. For those of us who are involved in these public policy conversations.
Paul Edelstein:
Well, Alex, you’re welcome to come to my office and rifle through all of my files.
Alex Vitale:
I’ll maybe send one of my grad students over.
Paul Edelstein:
Absolutely.
Alex Vitale:
There’s some hot leads.
Paul Edelstein:
If I haven’t. I mean, the police cases for the most part, just from a ground level, what we see most and around the police are excessive force. We see a lot of injuries from chases, obviously. By the way, we see a lot of injuries from chases. I’ve represented a lot of police officers. Their passengers in their vehicles get hurt. And I know, I bet you-
Alex Vitale:
It’s one of the leading causes of death of police officers.
Paul Edelstein:
I was just going to say, I knew you would know the statistics. They get hurt and are killed far more often in vehicle accidents than they are with anybody shooting. But you know what’s interesting? I’ve never heard that on the media ever once in my life.
Alex Vitale:
It’s rare. It’s rare. It’s just, and it goes to a larger point about how we misunderstand these issues of public safety and risk. Employers who steal wages from their employees by not paying overtime, faking the time cards, that’s worth five times more than all property crime combined. More people die from gun accidents than from homicides. More people are killed by air pollution than they are by gangs. So we got to put these things in perspective, and we’ve got to think about public safety more holistically. And by redefining public safety in this broader sense, it makes even clearer to people how inadequate a tool policing is to really make us safe.
Paul Edelstein:
That’s amazing because every single statistic you cited there, if we went to every guy on the street and said, “Choose which one you think is,” they’re going to get the wrong answer …
Alex Vitale:
That’s right.
Paul Edelstein:
Every time.
Alex Vitale:
That’s right. People are terrible at assessing risk. And of course, the media bear a lot of responsibility for this. You can watch an episode of Law and Order 24 hours a day on television somewhere. But where is the show about the impact on corporate environmental pollution? There are no shows like that.
Paul Edelstein:
It’s also not criminalized either, isn’t it Alex?
Alex Vitale:
But it doesn’t need to be “criminalized” but it does need to be addressed because ultimately, it’s a political problem. It’s not a criminal justice problem. We have written the regulations a certain way. We have used tax incentives. We have failed to develop alternatives. And these are ultimately political problems. And the same is true for policing.
Paul Edelstein:
But Alex, you have such a positive outlook on this after so many [inaudible 00:13:32]. And I’m definitely not a cynic. You know me as well, and I’m obviously a big believer. I’m extremely passionate in trying to effectuate social change and civil justice change. So I’m a pretty positive guy too. But this, what you are asking to do or trying to do, even on a micro policing level or yours, you really go broader than that, which I think is awesome. And I love talking about it. But I find it as a New Yorker and sitting here right now, I’m like, “Wow. How in the world is that going to happen when I’m watching chaos on the congressional floor where people can’t even elect a leader? How in the world are we going to change the messaging of these topics which affect everybody far more greatly on a daily basis?” I don’t know how you do it.
Alex Vitale:
Yeah, I don’t have a simple solution for this. I mean, we are up against huge powerful forces here, and I guess-
Paul Edelstein:
Sue them. Sue them. That’s one way.
Alex Vitale:
Well, that is one way, but it has to be done in a way that has some reasonable chance of producing the actual changes we need. And just bringing a lot of individual wrongful death cases just hasn’t done that.
Paul Edelstein:
I know.
Alex Vitale:
So we’ve got to think outside the box a little bit here. And I think we have to do a better job of integrating those personal injury cases with these larger movement demands.
Paul Edelstein:
So how do you do that? How does a street level lawyer like me, if I got a case and I say, “Wow, all right, well, this guy’s hurt and deserves compensation, but I think there’s a bigger issue here, and I want to do something about the bigger issue.” Give me a practical advice. You, by the way, I’d probably call you with that.
Alex Vitale:
There are some people in law schools around the country who are doing this work and who are much more knowledgeable about this in a procedural sense than I am. Here in Brooklyn Jocelyn Simonson at Brooklyn Law School has a clinic where they’re exploring these ideas, and there’s great folks at Yale, at Vanderbilt and other places that I’ve met with who are trying to think this through.
So I understand that historically, this idea of representing the best interests of the client has been perceived to be a big roadblock in bringing in these larger considerations. And that’s why I mentioned this idea about what’s also in the best interest in the client is living in a community where the risks of police violence are dramatically reduced. And you can’t say, “Well, we want the police to quit stopping our client because they don’t know.”
Paul Edelstein:
That’s right.
Alex Vitale:
They don’t know. So then we have to think about community level effects. If the goal is really to protect our client and to bring long-term relief for them, then maybe we need to think about what the community effects are. And we have to look at it obviously on a case by case basis. What is the underlying issue that was driving the police response in the first place? And what could we do that would be a credible alternative to that?
Paul Edelstein:
Well, in that last statement, I think most people would say, “Well, retrain them. Do this, do that.” But now I know from the Floyd case and from all these other cases like those, the police in the George Floyd case, they had body cams, they had all this training, all the stuff-
Alex Vitale:
It didn’t matter, yeah.
Paul Edelstein:
[inaudible 00:17:03] a difference, right?
Alex Vitale:
That’s right.
Paul Edelstein:
That’s not the solution. That’s not the solution.
Alex Vitale:
It’s not the solution. So that’s what I’ve been trying to evangelize about is that we need to look at how to not fix policing, but develop alternatives to policing, solve our problems in other ways. It’s not that we don’t have problems to solve. It’s that we’re using the wrong tool to solve them. We’re using a tool that doesn’t work very effectively and causes a lot of damage in the process.
Paul Edelstein:
But that’s like telling somebody, well, to get away from using that hammer on the nail, I got a better way for you to put that nail in the wall.
Alex Vitale:
Well, it turns out we do. We’ve got these air guns that professional carpenters use that are much more efficient than hammers.
Paul Edelstein:
I knew you’d have an answer, Alex, you’re almost [inaudible 00:17:53].
Alex Vitale:
So there are analogies here that are worth pursuing. That is not the only possible tool.
Paul Edelstein:
Good answer. You’re a tough witness to cross-exam. I knew that. Look, let’s get away from that for a second. I have a completely different question for you.
Alex Vitale:
Okay.
Paul Edelstein:
You asked me and said, oh, maybe ask me something that I haven’t been asked before. So you live in Brooklyn. You’ve lived there for a long time. I’m curious, with all of this knowledge, all your interaction with policing and everything you know, have you had any personal encounters with police? And what was that like for you? Like have you’ve been pulled over? I know-
Alex Vitale:
It’s funny. It’s funny, obviously you know my wife, Elizabeth, and we have had interactions with the police around traffic stuff. She says that her experiences have been universally negative. And she says, “If me as an upper middle class white woman has almost entirely negative interactions with the police, what must it be like for a 25-year-old black guy in East New York?” So I don’t usually talk a lot about my very personal interactions, in part because I’ve been working with police all over the world for 30 years. And so I’ve had all kinds of interactions and have seen police at their best and their worst. And to me, it’s just not about that. It’s not about that.
Paul Edelstein:
Okay. But let me ask you a different question now. So you’ve been all over the place. That’s interesting. And I know you’ve been called in as consultants since in, I mean, my gosh, you probably can’t even name the amount of countries and cities at this point. Have you seen differences in policing in different countries, different areas that you would say, “Wow, this area is doing it a little bit better”?
Alex Vitale:
Countries get the policing that they want. None of this is an aberration. There are countries who don’t want to use police in the way that we use them. For instance, in Portugal, they just decided that drugs were a public health issue, not a criminal legal issue. And so they just got the police out of the drug business. There are no more narcotics units. There are no more buy and bust operations. It’s a public health issue. If the police happen to arrest something, and drugs are part of the dynamic, they make a public health referral.
Paul Edelstein:
Has it worked? So what’s been the result?
Alex Vitale:
Yes. The result has been a reduction in overdoses, a reduction in transmissible diseases, and improvements in community conditions. And I was just in Lisbon this summer, and you can see the positive differences. And the Portuguese police have been encouraging their European counterparts to follow suit.
We’re seeing it with the legalization of marijuana in the US and in Oregon voters even voted for broader decriminalization of all drugs at a low level. That’s still being rolled out. But I think it’s potentially a great model.
Other countries have decriminalized sex work. The police, they got rid of the vice units that just, it’s a business. And when we take it out of the shadows, out of the black market, we reduce the harm, we reduce the likelihood of trafficking, we reduce the likelihood of violence.
In Europe, they don’t put police in schools. I mean, they think we are crazy. They would never do that to their own children.
Paul Edelstein:
Yeah. I agree. But you bring up the drug reforms in this country and the sex work reforms in certain other countries and decriminalization of these things. That’s interesting for a couple of reasons. One, in support of all these issues you’re talking about, but two, in support of sort of a fundamental change in the way people think, because I think even in this country, you and I are about the same age. I bet you when we were in our 20s, it would’ve been unfathomable to you and I to say we could walk out of our homes and go one block and buy marijuana legally and buy some psychedelic drugs, by the way, legally, mushrooms and things like that. And now it’s so prevalent that I think our children don’t perceive it the way we did. So maybe there’s a good example of a fundamental shift-
Alex Vitale:
Well, look, the Netherlands has had this kind of decriminalize and marijuana usage there is quite moderate. And all the “problems” that are associated with legal marijuana there are because of visitors from Europe who want to go there and party because they can’t buy drugs easily of high quality in their own communities. So the solution to that, of course, is European-wide legalization.
Yes, I mean, I will say though, that in the ’70s there was also a big movement to decriminalization. And a lot of states, including New York, did pass decriminalization laws then. They just didn’t go far enough. The momentum shifted in the ’80s. And so now we’re trying to create this new momentum and push it further.
Paul Edelstein:
Yeah. So let me ask you actually, you’re not just the police expert. You actually have a lot more skills and education than just this one topic, which I think gets lost these days because of so much you’ve done in this area. But let’s talk about from a sociological perspective, because we’re really talking about how people think, how to change the way people think from a sociological perspective.
So when we talk about drug reforms or police reforms or sex worker reforms, which are great examples, how do you fundamentally change the way people think? The drug and sex work seems to … There seem to have been a change. The police reforming, reforming the way you think about policing that’s been met with a lot of resistance. I know you have a lot more knowledge and have seen a lot more progress than the average man has. But it still seems to be met with resistance, at least from a thinking perspective on a person. So from a sociological perspective, put on your different hat, professional hat, how do you effectuate that change?
Alex Vitale:
Well, the advice I give to local governments, to elected officials, to community-based groups is you have to have concrete conversations with people about the conditions that they live in, not as a general abstraction. So what I advise people to do, if they’re serious about this, is to start with community conversations about public safety. What is it that you are afraid of? Is it that your kid’s going to overdose? Is it that your car’s getting broken into? Is it that there are gang shootings? What is it?
And it’s not the same for every community. People experience these things very differently. Often their perceptions are not really in touch with reality because they’ve watched too much television and stuff. So we need some reality check in these conversations. But these problems are real. And we need to get those fears out onto the table, not deny them, not paper over them, get them out on the table because that reduces the emotional salience that can be so easily manipulated by the tough on crime folks.
And then we need to talk concretely about how to address those feelings of unsafety. There are things we could do. Hey, let’s look what Portland, Oregon’s doing. Let’s look what Albuquerque is doing. Let’s look at this interesting thing they’re doing in Chicago, right? This is not, let’s imagine some utopia. This is things that cities are really doing that we could do here to actually address what you’re afraid of.
And it turns out it will do it in ways that don’t come with all the negative costs that come with policing and mass incarceration. But this is very labor intensive. You’re absolutely right. We can’t solve it because I got on MSNBC for two minutes and 30 seconds.
Paul Edelstein:
Yeah, you’re right. You know what, Alex? But this is one way to solve it, to continue to have these conversations.
Alex Vitale:
Yes.
Paul Edelstein:
At dinner tables, over a Zoom call, in the street, with our families, with our colleagues, with jurors. And also, I’m glad to have the conversation. You’re an extraordinarily interesting guy, but also very educated in this area and doing some really good things. But you know what, Alex, because I’m going to let you go, ’cause I know you want to go to lunch with your wife who’ll be very mad at me if I …
Alex Vitale:
You’ll hear about it.
Paul Edelstein:
Exactly. I get it. But you know what’s interesting, Alex? With all of your bio, there’s one thing, all the stuff you can look up on you, because you are a really easy guy to look up and learn a lot about. One thing glaringly absent from your bio, did you know what it was?
Alex Vitale:
I’m fascinated. Tell me.
Paul Edelstein:
Mixologist. I checked. It’s not on there. How could you not have that on there? Which goes hand in hand-
Alex Vitale:
You’ve got to leave some mystery for people.
Paul Edelstein:
Kind of goes hand in hand with a sociologist professor too, trying to effectuate change from a ground level one by one. So you’re awesome. I love what you’re doing. I love chatting with you. I’m so glad you were open to chatting with me and letting me record it. That’ll be awesome for me and the 17 subscribers that I think I have. So I really appreciate it. You’re awesome.
Alex Vitale:
My pleasure, Paul. We’ll continue the conversation over a cocktail shaker next time.
Paul Edelstein:
That’d be much more fun.
Thanks for joining us on Pulling Back the Legal Curtain with Paul and Glenn. Because we get so many questions over so many years about what goes on behind the legal curtain in the legal world, we tried to put this together so that it would be entertaining and interesting and hopefully educational. If you liked it, come join us again or visit our website at edelsteinlaw.com. Either way, we’re always going to be here in front of and behind the legal curtain doing the only thing that we know how to do, which is proceed. Take care.
You can find The Edelsteins Faegenburg & Brown Law firm on LinkedIn.