ASK: Why It’s Almost Impossible to Indict a Cop

A protester stands near a wall with a graffiti and police officers in Oakland, California, on Monday, Nov. 24, 2014, after the announcement that a grand jury decided not to indict Ferguson police officer Darren Wilson in the fatal shooting of Michael Brown, an unarmed 18-year-old. (AP Photo/Noah Berger)

All over the country, the issue of restraining police power is framed around the retribution against individual cops, from Staten Island to Milwaukee to Los Angeles. But is this the best way to impose discipline on law enforcement and roll back what even Republican appellate court appointees are calling rampant criminalization?

By Chase Madar - Bill Moyers

How to police the police is a question as old as civilization, now given special urgency by a St. Louis County grand jury’s return of a “no bill” of indictment for Ferguson, Missouri, police officer Darren Wilson in his fatal shooting of an unarmed teenager, Michael Brown. The result is shocking to many, depressingly predictable to more than a few.

Can the cops be controlled? It’s never been easy: according to one old sociological chestnut, the monopoly on the legitimate use of violence is what defines modern government, and this monopoly is jealously protected against the second-guessing of puny civilians. All over the country, the issue of restraining police power is framed around the retribution against individual cops, from Staten Island to Milwaukee to Los Angeles. But is this the best way to impose discipline on law enforcement and roll back what even Republican appellate court appointees are calling rampant criminalization?

Police shootings in America

First, the big picture. Last year, the FBI tallied 461 “justifiable homicides” committed by law enforcement — justifiable because the Bureau assumes so, and the nation’s courts have not found otherwise. This is the highest number in two decades, even as the nation’s overall homicide rate continues to drop. Homicides committed by on-duty law enforcement make up 3 percent of the 14,196 homicides committed in the United States in 2013. USA Today analysis of the FBI database found an average of about 96 police homicides a year in which a white officer kills a black person.

The FBI’s police homicide stats are fuzzy, and they are surely an undercount, given that they come from voluntary reports to the FBI from police departments all over the country. That the federal government does not keep a strict national tally shows just how seriously it takes this problem. A crowdsourced database has sprung up to fill the gap, as has a wiki-tabulation.

Perhaps the most disturbing thing about these police killings, many of them of unarmed victims, is that our courts find them perfectly legal.

SCOTUS and the license to kill

Chapter 563 of the Missouri Revised Statutes grants a lot of discretion to officers of the law to wield deadly force, to the horror of many observers swooping in to the Ferguson story. The statute authorizes deadly force “in effecting an arrest or in preventing an escape from custody” if the officer “reasonably believes” it is necessary in order to “to effect the arrest and also reasonably believes that the person to be arrested has committed or attempted to commit a felony…or may otherwise endanger life or inflict serious physical injury unless arrested without delay.”

But this law is not an outlier, and is fully in sync with Supreme Court jurisprudence. The legal standard authorizing deadly force is something called “objective reasonableness.”

This standard originates in the 1985 case of Tennessee v. Garner, which appeared at first to tighten restrictions on the police use of deadly force. The case involved a Memphis cop, Elton Hymon, who shot dead Edward Garner: 15-years-old, black and unarmed. Garner had just burgled a house, grabbing a ring and 10 bucks. The US Supreme Court ruled that a police officer, henceforth, could use deadly force only if he “has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” The ruling required that the use of force be “objectively reasonable.” How this reasonableness should be determined was established in a 1989 case, Graham v. Connor: severity of the crime, whether the suspect is resisting or trying to escape and above all, whether the suspect posed an immediate threat to the safety of officers or others. All this appeared to restrict police violence — even if, in the end, Officer Hymon was never criminally charged for fatally shooting Edward Garner.

“Objectively reasonable” — what could be wrong with that? But in actual courtroom practice, “objective reasonableness” has become nearly impossible to tell apart from the subjective snap judgments of panic-fueled police officers. American courts universally defer to the law enforcement officer’s own personal assessment of the threat at the time.

The Graham analysis essentially prohibits any second-guessing of the officer’s decision to use deadly force: no hindsight is permitted, and wide latitude is granted to the officer’s account of the situation, even if scientific evidence proves it to be mistaken. Such was the case of Berkeley, Missouri, police officers Robert Piekutowski and Keith Kierzkowski, who in 2000 fatally shot Earl Murray and Ronald Beasley out of fear that the victims’ car was rolling towards them. Forensic investigations established that the car had not in fact lurched towards the officers at the time of the shooting — but this was still not enough for the St. Louis County grand jury to indict the two cops of anything.

Not surprisingly then, legal experts find that “there is built-in leeway for police, and the very breadth of this leeway is why criminal charges against police are so rare,” says Walter Katz, a police oversight lawyer who served on the Los Angeles County Office of Independent Review until it disbanded in July of this year. According to Erwin Chemerinsky, dean of the UC Irvine Law School, recent Supreme Court decisions are not a path towards justice but rather a series of obstacles to holding police accountable for civil rights violations.

An officer’s personal threat assessment is often bolstered by the fact that there are between 270 million and 310 million guns in the United States. Take a grand jury’s failure to indict the police officers who fatally shot John Crawford III, the black man holding a BB gun in a Wal-Mart in Beavercreek, Ohio. In a country where shooting sprees are a regular occurrence, where guns are widely available at Wal-Mart and where fake guns that look very similar to real guns are sold in the same store, the police officers’ fears were deemed reasonable enough for the grand jury to find no probable cause of criminal wrongdoing. That is how the Supreme Court police violence jurisprudence works, and it was firmly on the side of officer Sean Williams, just as it has now been found to be on Darren Wilson’s. Given the deference and latitude hardwired into the law, “there is just an underlying assumption that the officer did not engage in criminal activity,” says Katz.

The first step to controlling the police is to get rid of the fantasy, once and for all, that the law is on our side. The law is firmly on the side of police who open fire on unarmed civilians.

The sick joke of self-regulation

The lethal use of police force typically sets off an internal police investigation to determine if departmental regulations were violated. The regs and the law are not the same thing. Case in point: the chokehold that NYPD officer Daniel Pantaleo used to strangle Eric Garner, suspected of selling loose cigarettes, on Staten Island last July. (The grand jury bill on that case has still not been decided.) The chokehold is not prohibited by law, but it is by departmental rules. The violation might earn a departmental censure of some kind, from loss of vacation days to getting fired, but they tend to be radically mild, when not nonexistent.

An officer’s personal threat assessment is often bolstered by the fact that there are between 270 million and 310 million guns in the United States.

What about internal affairs investigations? On television they are aggressive, dogged, uncompromising. In real life they tend to insulate the police from serious external sanction. “I stopped cooperating with the IAB 10 years ago,” says Jason Leventhal, a former assistant district attorney in Richmond County, Staten Island who now works as a civil rights litigator, often suing the police. “IA will never, ever credit the claim of police abuse. They hide witnesses, they push witnesses around. The only time I cooperate with them is when I know I have their hands tied behind their back.”

Are there any effective civilian oversight systems at any major police department in the US? Nobody I interviewed for this article could name one. New York’s Civilian Complaint Review Board occasionally docks vacation days from police officers but the board has no real teeth. Even staffers at the New York Civil Liberties Union have candidly told me that it’s more or less worthless. “I don’t have any faith in the CCRB or the Internal Affairs Bureau or any other internal mechanism,” says Ron Kuby, a civil rights and criminal defense lawyer in New York. Civilian complaints rarely even get in the way of an individual officer’s career. In New York, CCRB complaints don’t even go in a police officer’s file, says Kuby. “The PBA just says that the more aggressive officers will get excessive force complaints.”

Firing a police officer with a record of abusive behavior (or worse) is often extremely difficult and can carry a heavy political cost. Patrolmen Benevolent Associations, which have escaped the kind of resentment directed at other public-sector unions, tend to be powerful players in local politics able to inflict pain on any politico who would cross them. (Remember when Sarah Palin struggled to fire a state trooper and ex-brother-in-law who had allegedly acted like a thug towards her sister?)

The reality is, it is extremely difficult to get law enforcement to police itself, and self-regulation is here, just as it is in poultry processing or coal mining, a sick joke. READ MORE

Photograph: AP Photo/Noah Berger

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