By Jonathan Blanks September 17
Note: This is a guest post from Jonathan Blanks, a research associate at the Cato Institute’s Project on Criminal Justice and managing editor ofPoliceMisconduct.net. Follow him on Twitter at @blanksslate.
As The Washington Post has documented, few police officers are ever arrested, let alone prosecuted or convicted, after officer-involved shootings and in-custody deaths. Although there have been several recent high-profile cases in which officers have been charged with crimes for shootings in the line of duty — most recently in Baltimore and Fairfax County, Virginia — the number of officers arrested is likely to remain negligible. Supreme Court precedent and certain aspects of police culture and internal discipline combine to protect officers in use-of-force cases that can preclude criminal investigation and arrest.
All of this supports police officers who are involved in justified shootings. But it also makes it difficult to impossible to convict officers of bad shootings. And because of the protections afforded to public employees in general, and to police officers especially, it often requires a criminal conviction to remove an officer from the job. Consequently, bad cops are notoriously difficult to fire. Consequently, we often see a small percentage of officers account for a huge percentage of many policy agencies’ shootings and brutality complaints.
Three principle Supreme Court decisions have essentially laid out the lethal force standard for police officers in the United States. But in those decisions, the court also inadvertently created a blueprint for officers to duck accountability. In Graham v. Connor (1989), the Supreme Court said that any seizure of an individual — including the use of force — must fall under the “objectively reasonable” standard: Would an average police officer in the same position view the officer’s actions as reasonable given all the information at the officer’s disposal? Put another way, if the circumstances led an officer to reasonably believe the suspect was armed and threatening, the officer would be deemed justified in using lethal force, even if the person turned out to be unarmed.
Graham ties closely to another ruling just a few years before, Tennessee v. Garner (1985). In that case, a police officer fatally shot an unarmed burglar as he was fleeing the scene. The Court said that because the burglar, Edward Garner, posed no direct threat to the officers, nor did they have reason to believe he was a threat to the public, the police were not justified in shooting him simply to prevent escape.
The last case, often overlooked, is Garrity v. New Jersey (1967). It looks at how police agencies investigate their own. Since law enforcement agencies are often responsible for their own personnel oversight, police departments may compel officers to give statements about an incident in order to determine whether or not there was any misconduct. However, under Garrity, any compelled statements that would otherwise incriminate the officer may not be admitted in criminal proceedings, due to the Fifth Amendment protection against self-incrimination. As a result, police officers are granted many procedural protections before questioning in shooting incidents. Some of these protections have extended Garrity and been codified in what have become known colloquially as “Law Enforcement Officers’ Bills of Rights” (LEOBR).
LEOBR vary from jurisdiction to jurisdiction where they exist, but generally they provide a litany of privileges to officers that aren’t afforded to non-law enforcement suspects. For example, there may be mandatory “cooling off” periods after a shooting, guaranteeing the officer anywhere from 48 hours to 10 days before being initially questioned about his version of events. (Sometimes, officers go longer than that without being questioned.) Indeed, some of the emerging body camera policy proposals, such as one considered in Los Angeles, would give officers the opportunity to review the video evidence before giving a statement, a privilege rarely afforded to citizens who aren’t police officers.
Maryland was the first state to institute LEOBR and held hearings last month in which 15 LEOBR proponents—police union representatives and leadership—testified in support the law. The police unions denied that officers would or have ever used the cooling-off periods to concoct a false story and collude with other officers to cover up misdeeds.
Even in areas where LEOBRs are not present, there is evidence that officers indeed collude with one another to create false narratives about violent encounters with suspects.
University of Cincinnati officer Ray Tensing reported that he was being dragged by a car he pulled over for a missing tag when he fired his weapon point-blank into the face of Samuel DuBose. His body-worn camera ended up undermining his story. But Tensing’s report — that he felt he was in imminent danger, and thus in line with the Supreme Court standard — was initially corroborated by fellow officers on the scene. The internal policing cultural demand known as the “Blue Wall of Silence” very often puts loyalty over honesty and personal integrity, particularly when it comes to misconduct investigations. Without video, it is unlikely Tensing would have been criminally prosecuted and, very possibly, would still be on the job today.
Likewise, the initial reports in the shooting death of Tamir Rice were unsupported by surveillance video. The footage showed the officer, Timothy Loehmann, jumped out of the patrol car and shoot the 12-year-old almost instantly. The more experienced officer who was driving the car, Frank Garmback, was not cooperative with the county prosecutor’s investigation, according to the 224-page prosecutor’s report.
Of course, not all officers comply with the Blue Wall’s demand for silence. Fairfax County, Virginia officer Adam Torres’s shooting of John Geer in 2013 was not caught on camera. Furthermore, every officer and supervisor on the scene effectively described the incident as a ‘bad shoot,’ despite Torres’s claims that Geer had “brought both his hands down in a quick motion towards his waist.” Torres’s claim is a variant of an oft-repeated explanation for officer-involved shootings that a suspect ‘reached for his waistband.’ Why it took two years to fire and indict Torres has yet to be disclosed by the Fairfax County police and prosecutor, but his indictment shows that the Blue Wall is at least not completely impregnable.
The recent charging of Baltimore police officer Wesley Cagle for shooting a burglar in December 2014 indicates that some prosecutors are becoming more skeptical of police narratives after use-of-force incidents. The facts of the Baltimore shooting are not yet clear. But prosecutor Marilyn Mosby says Cagle shot Michael Johansen in the groin after he made light of being shot for being non-compliant. Johansen survived, and Cagle is facing five criminal counts, including attempted first-degree murder.
Mosby determined that the other two officers’ initial shooting of Johansen was justified, even though he was unarmed. Cagle’s actions were not justifiable because Johansen was on the ground and incapable of being an imminent threat. Again, it is unclear why eight months passed between the incident and Cagle’s indictment.
Sift through The Post’s database of people killed by police officers in 2015, and you’ll begin to notice a pattern: Most of those were armed and pointed or otherwise approached police with a weapon drawn and ready to use. Undoubtedly, the accounts are true in many instances. And it is unfair to suggest that officers usually create a story that would justify an otherwise “bad shoot,” but it is unlikely that they’re all entirely accurate.
But even if every single account is true, the “objectively reasonable” standard provides legal cover for shootings that can be plausibly justified under the law, but may not have been necessary. Given the sheer number of killings recorded (686 to date in 2015), and that more than 15 percent of those killed were unarmed (65) or had a toy weapon (23), non-lethal methods of resolution or de-escalation could have saved at least 88 lives.
Officers have a dangerous job and sometimes have reason to fear for their safety. In 2015, 84 officers have died in the line of duty, according to the Officers Down Memorial Page. Of those, 28 have died by non-accidental gunfire or non-vehicular assault. The police have the right to protect themselves, but they are also expected to assume a certain amount of risk in order to protect the public. As several former officers and trainers wrote on a popular police website, there is no officer safety exception to the Constitution. As such, the mere possibility of danger should not precipitate a “shoot first, ask questions later” police mindset on the streets. And yet it has.
Because we ask police officers to put themselves in harm’s way, they should get some leeway for split-second reactions in situations they perceived to be dangerous. Sometimes those reactions will be wrong, and innocent people will die because of an honest error in judgment that does not necessarily warrant prison time. However, in those circumstances, public safety demands that officers who make those sorts of mistakes even once be removed from the force and from policing. It doesn’t seem unreasonable to say that if you kill an innocent person, we aren’t going to wait to see if you do it a second or third time. The public shouldn’t have to absorb that risk. And of course, officers who display gross negligence or malice should be prosecuted.
Unfortunately, use-of-force jurisprudence allows police officers to use lethal force at the first instant a suspect flinches or moves in any way that could be construed (or recounted) as hostile. The Blue Wall of Silence then encourages police to support their colleagues’ accounts of events, even when they result in the unnecessary death of an innocent. Laws and policies that protect police leave the door open for less-than-forthright accounts of confrontations that more often than not end in the police officer’s favor.
Changing the constitutional standard for use of force would be difficult. The Supreme Court doesn’t generally rewrite its rules on such issues, and it is very unlikely Congress would pass a law to increase police officers’ criminal liability.
Although local officials can’t change what’s legal, they can change what’s permitted as a matter of policy. Mayors, city councils, and other policymakers can instruct police agencies to change their rules guiding use of force to require more emphasis and training for deescalation and peaceful conflict resolution.
Police contracts can be negotiated to make it easier to terminate officers who shoot too quickly, even if those contracts retain the same protections against criminal prosecution. Termination should result for any officers named in lawsuits that municipalities settle or lose in excessive force and wrongful death cases. At minimum, such settlements should trigger administrative reviews of the officers named and those cases should be noted in their personnel files.
The available data indicate that current laws and policies make police-involved shootings too common, leaving many families shattered and the general public less safe. Absent radical legal change at the federal level, police departments and local governments can still take steps to reduce the number of police shootings and remove the officers responsible for unnecessary use of force from their ranks.
Whether or not a shooting is legal is a separate question than whether it was right. We need to change use-of-force policies to reflect that.
Jonathan Blanks is a research associate at the Cato Institute’s Project on Criminal Justice and managing editor of PoliceMisconduct.net.
Va. Protesters Demand Changes Following Death of Mentally Ill Woman in Police Custody ________________________________________
by: Linda Poulson Special to the AFRO
Virginia residents recently confronted local leaders over the ruling that the death of a mentally ill Black woman in northern Virginia was an accident.
Protestors on Sept. 14 questioned the accountability of the Fairfax County Sheriff’s Office at an Ad Hoc Police Practices Review Commission panel held at Walt Whitman Middle School in Alexandria, Va.
The residents were inflamed by the ruling that the death while in police custody of 37-year-old Natasha McKenna, who suffered from schizophrenia, was an accident. A video of the incident was released months after her death, showing apparent rough treatment and multiple uses of a tazer device as McKenna was transferred from one cell at the Fairfax County Adult Detention Center to another.
“Her death was murder but ruled an accident, as if it never happened,” said one protester. “That is a problem for me, as a Black woman, in this country because Natasha McKenna is me; and to say that her death is an accident is a move that you just learn from, I have a problem with that. When you have a problem with something especially that stems from systems of oppression, I dismantle that s**t.”
The packed audience included protesters from the Black Lives Matter campaign and other residents who believed immediate changes in police procedures were needed.
“I’ve never seen a level of distrust and disrespect for the police, it’s just really troubling,” said a resident. “We’ve come up with a list of recommendations that really make sense and why in the hell didn’t we implement these years ago?” The speaker referred to a list of proposals for improvements in police action, given to the panel in 2004.
“More people of color, you need to include the homeless and their organizations, and all other marginalized people to be included in these commissions and committees,” said another resident. “Otherwise, you’re wasting our time and the taxpayer’s money.”
Another resident raised questions on the procedures police used while handling McKenna. At the time of her death, she was awaiting transportation to Alexandria, Va. where she was wanted for assaulting an officer.
“Why was she tazed four times? Why were her hands and feet bound?” the resident said. “People all over the world, Europe, Asia, the Caribbean, Africa; have seen this horrific video showing a mentally ill young Black woman treated in such a brutal manner. These same people ask me is the United States really that violent?”
The Washington Post reported that McKenna only weighed 130 pounds at the time of her death. According to McKenna’s family attorney, Harvey J. Volzer, she was diagnosed with schizophrenia at age 12 and struggled with the disease throughout her life. The AFRO attempted to contact Mr. Volzer several times with no response.
One protester stated the video “looked liked a rape and an electrocution at the same time,” as McKenna was naked when guards threw her to the ground. “Where were the women guards?” the protester asked.
Heard on the video, Natasha McKenna’s last words as she was taken from her jail cell were “You promised you wouldn’t kill me.” Several protestors at the rally said the promise was never intended to be kept.
Demonstrators Appear at Hearing After Inmate Death
ALEXANDRIA, Va. — Demonstrators appeared at a hearing on police practices to call for reforms, days after Fairfax County prosecutors announced the decision not to charge deputies in an inmate’s death.
Before the Ad Hoc Police Practices Review Commission met Monday night in Alexandria, dozens of people stood outside. Some held signs reading “Justice for Natasha McKenna” and “Film the Police.” The commission is focused on county police, not the sheriff’s department, which manages the jail. Still, several people spoke out at the hearing about the death of McKenna several days after a struggle with deputies.
The commission heard a report from a subcommittee focused on use of force, which is making about 40 recommendations, including asking patrol officers to wear body cameras. The commission is set to meet again Oct. 8.
Demonstrators call for change at public hearing on Fairfax police practices
By Michelle Basch |
Many demonstrators brought their signs into the hearing, held by the Ad Hoc Police Practices Review Commission.
WASHINGTON — Mentally ill Fairfax County Jail inmateNatasha McKenna died a few days after jail deputies shocked her repeatedly with a Taser in February.
Last week’s decision to not file criminal charges in connection with her death, as well as to release disturbing video of what led up to it, prompted protesters to show up at a public hearing on Monday night.
Before the meeting started at Walt Whitman Middle School in Alexandria, a few dozen people stood outside holding signs that read “Justice for Natasha McKenna,” “Film the Police” and “Instead of help + treatment, they gave her abuse + death.”
Although the commission is focused on the Fairfax County Police Department and not the Fairfax County Sheriff’s Department, which manages the county jail, numerous people signed up to speak out about McKenna’s death.
“We demand justice for Natasha and for those like her in the detention facility today,” Cayce Utley said.
“This woman was having a psychotic episode. She didn’t know what was happening to her. She had men in white suits groping at her naked body,” said Erika Totten, with Black Lives Matter.
“It was a cruel reminder of how African slaves were treated once upon a time,” said Asantewaa Nkrumah-Ture.
Other speakers called for the prosecutor and the deputies involved in the case to be fired.
Well into the hearing, one of the members of the commission, Sal Culosi, stood to speak to the audience.
“You need to know that my son … was killed by (the) Fairfax County Police Department in 2006. They said it was an accident. We’re not going to go into that, but I’m here trying to make the policies better. By and large I agree with everything that’s been said here by all of you with regard to Natasha except for one thing. One thing. This is not a racial issue.”
That led to “boos” from several in the crowd.
Culosi continued, “The officer who killed my son was black. And that has nothing to do with the issue of policy.”
At the same meeting, the commission heard a report from its Use of Force Subcommittee, which is making about 40 recommendations for change. They include asking police patrol officers to wear body cameras and carry Electronic Controlled weapons, such as Tasers, while on duty. The subcommittee also supports a ban on chokeholds as a way of controlling suspects.
The commission is scheduled to meet again on Oct. 8 to vote on recommendations submitted by all five of its subcommittees.
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