Why It’s Impossible to Indict a Cop

It’s not just Ferguson—here’s how the system protects police.

Chase Madar

 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. A USA Today analysis of the FBI database found an average of about ninety-six 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 one Edward Garner: 15 years old, black and unarmed. Garner had just burgled a house, grabbing a ring and ten 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 Walmart in Beavercreek, Ohio. In a country where shooting sprees are a regular occurrence, where guns are widely available at Walmart 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.

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 ten 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.

Civil suits

Civil suits for monetary damages require a lower standard of proof than criminal cases, but these suits are not a slam-dunk for victims of cop violence, either. The same jurisprudence that grants wide leeway to law enforcement still holds. Last March, one victim’s family lost a federal civil suit for wrongful death and civil rights violations brought against police officer Nicholas Bennallack for fatally shooting a fleeing and unarmed drug suspect. The jury believed the cop’s claim that he opened fire out of fear for his life.

What about all the times when excessive force suits get settled out of court? It turns out that massive payouts don’t deter police misconduct for one straightforward reason: neither individual officers nor police departments are responsible for coughing up the cash. The union covers the officer’s lawyer, and research from Joanna Schwartz of UCLA Law School found that governments, not individual officers, paid out 99.98 percent of the damages. Settlements and damages aren’t paid by the police department, whose budget will waltz by untouched, but typically out of the general municipal budget.

Kuby maintains that civil remedies will always fall short and thinks only criminal prosecution has a prayer of changing police behavior. “Prosecution works well with people who are not fundamentally criminal and have enough stake in the system to respond! Any response below that is an insult.” But he admits that the political will to make the criminal justice system restrain and regulate its own members and enforcers is consistently lacking—and has been as long as he’s been practicing law.

Don’t make a federal case out of it.

Occasionally the federal Department of Justice intervenes to prosecute individual cops for depriving a victim of his or her civil rights. If a state-level prosecution fails to secure a conviction, this can give the government a second chance to prosecute on different charges. Rodney King’s LAPD assailants were convicted in 1993 in just this way.

But the feds, like other prosecutors, only like to take on cases they can win, says Alan Vinegrad, who was part of the federal attorneys that prosecuted the NYPD officer who in 1997 sexually tortured Abner Louima with a broken-off broom handle. “In the Louima case it was painfully obvious that the use of force was extreme and willful,” says Vinegrad. “But in other cases, if the officer is acting more in the line of duty, a federal civil rights violation is a tougher thing to show.”

Will the Obama DOJ take on the Michael Brown case? It doesn’t look like it. Eyewitness testimony is conflicting, and so far the multiple forensic reports that have come out are not inconsistent with Darren Wilson’s version of the shooting—which would make the federal standard of willful misconduct difficult to prove. The Obama DOJ has signaled with leaks that it is backing away from a federal case against the officer.

Far more useful are the DOJ Civil Rights Division’s root-and-branch interventions into violently dysfunctional police forces, triggered by “patterns and practices” of systematic rights violations rather than any one particular incident. For instance, the DOJ just launched a major effort to reorganize and reshape the police department of Albuquerque, reforming its trainings, protocols and appallingly trigger-happy habits. (The Albuquerque police have shot thirty-seven people in the past four years, twenty-three of them fatally.) This is a well-established tool of the federal government: other police departments under federal supervision include those of Seattle, New Orleans, Puerto Rico and, until recently, Los Angeles and Detroit; the feds also nearly took over wholesale the Oakland police department in 2012. But note that these federal interventions do not entail punishments, civil or criminal, of individual police officers.

In the unusual instances when a law enforcement officer is convicted, the penalties tend to be remarkably light. Johannes Mehserle, the Bay Area Rapid Transit officer who shot the unarmed Oscar Grant III dead on New Year’s Day, 2009, served eleven months of a two-year sentence for involuntary manslaughter. Then there is Jon Burge, the Chicago police detective who led the torture of over 100 (mostly black) suspects, released last month after serving four and a half years in custody. (The statute of limitations had passed for the more serious offenses.) Burge still collects a $54,000 departmental pension.

Such Scandinavian-style lenity is quite different from the mind-numbing severity of sentences inflicted on non-cops. Consider the sixty years that potentially face Marissa Alexander for firing a warning shot at an abusive ex. Or the life sentences without possibility of parole that more than 3,000 Americans are serving for nonviolent crimes.

Some observers see hope for police reform in the ubiquity of smartphone video recorders. It’s true that the ever-growing supply of police misconduct videos fuels the anger needed to sustain reform efforts, and even occasionally leads to police officers being disciplined or prosecuted. Examples include NYPD officers David Afanador and Tyrane Isaac, caught on camera pistol-whipping a teenage suspect last August, or South Carolina state trooper Sean Groubert who in September opened fire on a motorist heading into his truck to retrieve his driver’s license. Jason Leventhal told me he expects an indictment of the Staten Island police officer who strangled Eric Garner because the video evidence, caught on a cellphone, was so brutal. It would certainly be a good thing if police departments invested less in military gear like M-RAP armored vehicles and more in dashcams and GoPro cameras; with the right department protocols and practices, these cameras strengthen police accountability.

But just as often these videos end up illustrating just how much leeway police have in opening fire on a suspect. Take the police shooting of St. Louis resident Kajieme Powell, a mentally ill man allegedly holding a knife, a fatal shooting arguably less defensible than the Michael Brown shooting ten days before, and caught on a cell-phone video. Or, again, John Crawford III, whose slaying by police officers was caught on the Walmart security cameras. Or the July, 2012 video of eight members of the Saginaw, Michigan, police department, six of them firing forty-six shots at Milton Hall, a mentally ill homeless man, hitting him eleven times, after he took out a pocket knife when a police dog started to lunge at him. Although the latter horrific video picked up a fresh wave of publicity when screened at a hearing of the Inter-American Commission on Human Rights in Washington, DC, last month, such videos cannot undo the legally enshrined deference to the subjective feelings of police officers when they reach for their weapons. No criminal charges were even attempted by state prosecutors in any of these cases; the DOJ has announced it is looking into the Crawford shooting, but declined to prosecute in the other two.

(A note on the IACHR and other international forums: bringing these cases of police shootings to them is a canny way to generate publicity and raise consciousness, but no one should ever imagine for even a second that such bodies will ever wield any actual power in American courts.)

There really is no courtroom miracle or lawsuit solution, no matter how clever the litigator, no matter how deep-dish the foundation grant, that is going to discipline the police and break them of their trigger-happy habits.

Thinking big

Police shootings are only one function of living in one of the most heavily policed societies in the world. Any movement to roll back this creeping overcriminalization is going to have to look beyond criminal prosecutions of individual police and take in the big picture.

The militarized police response to the mostly nonviolent demonstrations in Ferguson and elsewhere has appalled not only progressives but many conservatives as well. The army’s provision of of weapons surplus, from MRAPs to tanks, to local police departments under the federal 1033 Program, ought to be easy to end. But departments are reluctant to give back new toys, and majorities of both the congressional Progressive Caucus and the Black Caucus voted against a bill that would have stopped the disbursement of some military goodies to local police departments. Gun control advocates would do well to lobby hard and publicly for arms control measures applied to the police as well—undisciplined but up-armored cops are part of what that drives many otherwise sane private citizens to build private armories.

Wanton overpolicing had poisoned relations between the people and their government well before Darren Wilson shot dead Michael Brown. Less mediagenic than police militarization and far more insidious is law enforcement’s daily harassment of citizens for petty offenses. The local government in Ferguson has been treating its residents and neighbors less like free people with rights than like revenue milk-cows to be exploited to the max. Citations and fines for petty offenses are profligately inflicted on residents, particularly black residents. According to a blockbuster report issued by St. Louis’s ArchCity Defenders advocacy group, over 20 percent of city revenue comes from municipal courts (making them the city’s second-largest source of revenue), which issued enough warrants last year to slap three warrants, $312 worth, on every household in the town.

Not surprisingly, high on the list of demands issues at one Ferguson community forum was an end to the “overpolicing and criminalization of poverty,” an amnesty for old unpaid warrants, new fines proportioned to income and a state law capping municipal revenue from court fees at 10 percent. (Terrified by the Ferguson unrest, the city of St. Louis decided to eliminate 220,000 open arrest warrants for traffic violations last month.) The feeling of being under occupation by an armed force that cares more about meeting revenue quotas than public security corrodes all trust in law enforcement, and is the sort of environment in which police are more likely to open fire.

The state of emergency that Missouri governor Jay Nixon declared on November 17 seems all too likely to encourage the police overkill, both petty and heavily militarized, that shocked the world over the summer, when much of the state’s use of force against demonstrators was of dubious legality.

New policing models like the problem-solving approach developed by David M. Kennedy and others have focused law enforcement and social work resources on a city’s small number of known and likely violent gang members, leaving the rest of the community in relative peace. This approach has won demonstrable results in Boston and Cincinnati without intrusive “broken windows” policing or the wholesale stop-and-frisk harassment of black and Latino youth. Kennedy, director of the Center for Crime Prevention and Control at John Jay College, writes in his memoir, Don’t Shoot, that this type of community policing doesn’t fix the entire economy, but it does reduce homicide—including police homicide—and at least create social peace.

Police demilitarization, the decriminalization of working-class people, new policing models: these are all projects that could work in Ferguson and thousands of other American cities. Although none of these large-scale ideas is explicitly race-conscious, they would most likely tighten the severe racial disparities in policing violence that exist all over the country, more so than pouring more money into racial sensitivity training for cops. (Changing residency requirements of municipal police officers to get a more ethnically representative force might help a little, though research shows that such requirements correlate with less confidence in the police, not more.)

These big-picture reforms are fundamentally political solutions that will require long-term effort, coalition politics that spans race, ethnicity and political affiliation—a challenge, but also a necessity. As police and prosecutors assume more and more power in the United States—regulating immigration (formerly a matter of administrative law), meting out school discipline, and other spheres of everyday life where criminal law was almost unknown even a generation ago—getting law enforcement on a tight leash is a national imperative. In the meantime, the constant stream of news reports of unarmed, mostly black and Latino civilians killed by police demands bigger, bolder approaches. They are the only available paths to getting the police under control.

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?

Black St. Louis County Police Officer Charged With Felony Assault

A 13-year veteran of the St. Louis County Police Department is charged with felony assault after striking a MetroLink passenger on the hand with his expandable baton following an argument

The St. Louis County Prosecuting Attorney’s Office on Friday charged 44-year-old Dawon Gore of Ferguson with second-degree assault. He was jailed on a $3,500, cash-only bond.

Gore is accused of using excessive force against an unnamed 24-year-old light-rail passenger in late April at the Hanley Road station in Clayton. He’s been assigned to the department’s MetroLink unit since May 2012.

A police press release says the investigation was forwarded to prosecutor Bob McCullough in early May with a recommendation to press charges.

Gore has been accused of using excessive force against an unnamed 24-year-old commuter. Don’t want to state the obvious here, but really? This Black man is about to be put in jail for hitting a man with his baton and Darren Wilson kills a kid and gets away with it? Our justice system is beyond corrupt.

U.N. Committee Calls On U.S. to Crack Down on Police Brutality

The U.N. Committee against Torture urged the United States on Friday to fully investigate and prosecute police brutality and shootings of unarmed black youth and ensure that taser weapons are used only in life-threatening situations.

The panel's first review of the U.S. record on preventing torture since 2006 came in the wake of racially-tinged unrest in cities across the United States this week sparked by a Ferguson, Missouri grand jury's decision not to charge a white police officer for the fatal shooting of an unarmed black teenager.

The committee decried "excruciating pain and prolonged suffering" endured by prisoners during "botched executions" as well as frequent rapes of inmates, shackling of pregnant women in some prisons, and extensive use of solitary confinement.

The review cited deep concern about "numerous reports" of police brutality and excessive use of force against people from minority groups, immigrants and homosexuals as well as racial profiling and militarization of policing work.

It referred to the "frequent and recurrent police shootings or fatal purusits of unarmed blackindividuals."

The U.S. delegation told the 10 independent experts on the panel that 20 investigations had been opened since 2009 into systematic police abuses and that more than 330 police officers had been prosecuted for brutality.

The U.N. panel said there was insufficient information available on the result of those investigations.

It spoke of "numerous and consistent" reports that U.S. police have used tasers against unarmed people resisting arrest and condemned two recent cases of death in Florida and Illinois.

Tasers should be used only in extreme cases to prevent loss of life or serious injury, the committee said.

It criticized what it called a continued U.S. failure to fully investigate allegations of torture and ill-treatment of terrorism suspects held in U.S. custody abroad, "evidenced by the limited number of criminal prosecutions and convictions".

Some 148 inmates are held at the U.S. Guantanamo base in Cuba amid reports, the committee's report said, of "a draconian system of secrecy surrounding high-value detainees that keeps their torture claims out of the public domain".

Nine inmates have died, including seven by suicide, since 2006, the report added.

It called for declassifying evidence of torture and detainee abuse committed during former PresidentGeorge W. Bush's administration, and for prosecuting those responsible.

Coming soon: An app to report police brutality

By Jonathan Berryman, CNN

Washington (CNN) -- Reporting police brutality could just be a swipe away.

That's the motivation behind SWAT, a new app designed by college students Joe Gruenbaum and Brandon Anderson to counter excessive uses of force by police officers.

The app, which its creators would like to release by spring, will give witnesses of a police incident the ability to live-stream video from their smartphones to SWAT's secure servers. Once a video is on the servers, the team at SWAT can forward a copy to authorities, protecting witness recordings from possible destruction or seizure during the incident.

This might sound illegal, but it isn't. While some states have implemented restrictions on public audio recordings (most notably Illinois), no state in the U.S. prohibits recording video of the police in a public place.

"Something like a million criminal cases are compromised each year in the United States because people don't know their rights when it comes to their interactions with the police," Gruenbaum said in an interview with CNN. "And that includes the right to record the police."

The live-streaming function is step one of the SWAT process. In addition to recording secure video, a SWAT user will be able to file a police report in seconds. The app will generate a form, send the report to a nearby department with proper jurisdiction, and provide users with a summary of their local rights. "We want to make sure that people understand completely their protections, constitutionally and legally, when they're interacting with the police," Gruenbaum said.

The inspiration for the app comes from what happened in Ferguson, Missouri this year, as well as from Anderson's personal experience. A former U.S. Army satellite engineer, Anderson told CNN his partner died from injuries sustained during a confrontation with police.

"I lost my partner to police brutality, and the cops got away with it because of a lack of evidence," Anderson said.

Anderson became a civil rights activist working with organizations such as the Center for the Study of Social Policy and Georgetown University's Center for Social Justice.

He helped organize a conference commemorating the 50th anniversary of the March on Washington for Jobs and Freedom. Gruenbaum reached out to him after seeing one of his Facebook posts: their first conversation sparked a philosophical dialogue and eventually a strong friendship.

"We had very intense debates...concerning race, racial politics, and spaces of discourse for people of color," Gruenbaum reflected. "Then Ferguson happened."

"It turned into a conversation about solutions," Anderson said. "We saw a problem...so we invented SWAT."

At present, the app is still being developed, but the founders have a long-term vision in place. As app users document incidents over time, the team at SWAT plans to compile the relevant data into a format that can be made available to local governments -- a process that will require expanding their staff. Gruenbaum and Anderson already manage a startup of ten people, including product designers and marketing strategists, and they're looking to grow quickly.

"What we need are people who are interested in helping to create this app," Anderson said.

Justice Department likely to impose reforms on Ferguson police

By TIMOTHY M. PHELPS

NationCrimeLaw EnforcementHomicideShootingsMichael BrownRodney King

Those hoping the federal government will criminally prosecute Darren Wilson are likely to be disappointed

'It's a very tough thing under federal law to indict a police officer in a shooting'

Those hoping the federal government will criminally prosecute Ferguson, Mo., police Officer Darren Wilson in the killing of an unarmed black man are likely to be disappointed, but chances are strong that the Justice Department will impose significant reforms on the city's police department through its ongoing civil investigation.

St. Louis County officials announced Monday that a local grand jury had found insufficient evidence to charge Wilson in the Aug. 9 shooting of Michael Brown, 18.

Some Ferguson activists hope that the Justice Department, which is conducting its own inquiry into the shooting, will file a federal criminal case against Wilson. But former civil rights prosecutors say the threshold for charging him with a federal crime is even higher than for local prosecutors because it requires proof that the officer intentionally used more force than reasonably necessary to deprive someone of his civil rights.

"It's a very tough thing under federal law to indict a police officer in a shooting," said William Yeomans, who supervised police investigations while serving as a top Justice Department official and currently teaches law at American University. "It doesn't happen very often."

Yeomans advised that Brown supporters not "put all their eggs in the criminal basket" by focusing too heavily on the outcome of the federal criminal investigation into Wilson. "The federal civil investigation into the Ferguson Police Department will continue and has the potential to result in some very significant reforms," Yeomans said.

Brown's shooting set off weeks of racially charged clashes between protesters and police. The Justice Department's civil rights division initiated two investigations, in what was seen partly as an attempt to ease tensions.

Both investigations are continuing. Justice Department officials declined to comment on the status of either.

The criminal investigation was running parallel to the St. Louis County prosecuting attorney's, with dozens of FBI agents interviewing the same witnesses who appeared before the grand jury. Although a federal grand jury is likely to be impaneled to hear evidence, few expect the criminal investigation to lead to an indictment.

"It's a very complicated case because you don't have a clear sense of what happened," said Alex Busansky, a former criminal trial attorney in the civil rights division. "There is no videotape."

Because of the high standard needed to prove police misconduct, a video can be crucial to a successful prosecution. Relying on video of the 1991 beating of Rodney King in Los Angeles, federal prosecutors convicted two of four officers charged with violating his civil rights. The federal case was filed after a Simi Valley jury acquitted the officers.

Without video, cases are usually harder to prove. A jury found four New York City police officers not guilty of second-degree murder in 2000 after they shot Amadou Diallo, an unarmed immigrant from Guinea, 19 times. A federal investigation found there was not enough evidence to charge them with civil rights violations.

The Justice Department criminal civil rights investigation into the shooting of 17-year-old Trayvon Martin in Florida in 2012 continues more than 2 1/2 years after he was killed by neighborhood watch volunteer George Zimmerman, who was acquitted in state court.

Atty. Gen. Eric H. Holder Jr., who traveled to Ferguson to listen to complaints from citizens, has said he hopes to wrap up the criminal investigation before he leaves office, possibly in February.

The broader civil investigation into the Ferguson Police Department could take longer, examining whether there is a pattern of violations of citizens' rights. These investigations can take considerable time but are more likely to yield results than federal criminal investigations, experts say.

Justice Department officials say investigators are looking into whether Ferguson police have a history of using excessive force against suspects and are examining past lawsuits against five of the city's police officers, including one in which a man with mental health problems was killed with a Taser.

They are also reviewing allegations that traffic stops occur disproportionally in black neighborhoods and that unwarranted traffic citations are fueled by the municipality's thirst for money. Traffic tickets provide a quarter of Ferguson's revenue, according to one study.

The Justice Department also is looking at the treatment of detainees in the Ferguson city jail.

St. Louis County, which includes Ferguson, voluntarily agreed to work with the Justice Department on a review of its own policing practices.

Under Holder, the Justice Department has been particularly aggressive in such investigations, opening 20 of them in the last five budget years, twice as many as under his Republican predecessors during a comparable period, according to Justice Department statistics. During the same period, it prosecuted more than 300 officers for misconduct. It has entered into formal agreements, called consent decrees, with nine departments, including New Orleans and Albuquerque.

In Ferguson and surrounding St. Louis County, they will probably be looking for evidence of excessive use of force, unreasonable searches, racial profiling in arrests or traffic stops, and other problems. The department's training and use of discipline also may be examined.

"It can go to every corner of the police department's operation," Yeomans said. Bringing a case against Ferguson should not be difficult, he added.

"We've seen there are problems and the police department's response to the protesters demonstrated some serious problems about what the police department thinks is appropriate use of force," he said. "There is a strong basis for believing that there will be systemic changes to the Ferguson Police Department."

Wicomico state’s attorney backs police oversight board

JEREMY COX

Maciarello‘s push represents the most tangible action taken so far after a string of violent —sometimes fatal — interactions between police and citizens in Wicomico.

Momentum is building behind a proposal to create a citizen-run police oversight board in Wicomico County.

The county’s top prosecutor on Monday called on the county’s two busiest police agencies – the Wicomico County Sheriff’s Office and the Salisbury Police Department – to form a panel to study the idea.

State’s Attorney Matt Maciarello‘s push represents the most tangible action taken so far after a string of violent — sometimes fatal — interactions between police and citizens in Wicomico. He also urged police to start wearing cameras on their bodies to record interactions with the public.

“It’s a ‘who’s watching the watchman’ situation,’ ” Maciarello said at a news conference at his office in downtown Salisbury.

Like many boards, the one suggested by Maciarello would make recommendations to the head of the department, who would have the ultimate say over an officer’s penalty. He said he would leave it up to the city and county whether to create a joint board or separate ones.

Such details could be discussed in a “blue-ribbon panel,” he said. The governments also need to consider whether it’s worth the cost.

Wicomico Sheriff Mike Lewis immediately embraced the oversight board and body cameras proposals. Meanwhile, the city of Salisbury is already working to equip its officers with cameras, but Mayor Jim Ireton said he strongly opposes a panel “second-guessing” the department’s work.

Maciarello can’t act alone, and he suggested as much during the conference. He emphasized several times that his intention wasn’t to denigrate the agencies’ ongoing community relations efforts or the work of their internal affairs departments.

But he was moved to pitch his proposals by a “confluence of factors” that included a trio of lawsuits alleging harsh police treatment in the city and a handful of recent police-involved shootings, he said.

Maciarello also cited clashes between police and citizens following a white officer’s shooting of a black teenager in Ferguson, Missouri. The press conference came just hours before the grand jury in that case announced it had reached a verdict, a milestone that many feared would stoke more violence.

“The key ingredient in any community,” Maciarello said, “is trust.”

That trust has been a topic of much debate in Wicomico this year. It began in ominous fashion, with three police-involved shootings – two of them fatal – in two months.

That led Mary Ashanti, president of the Wicomico chapter of the NAACP, to go before the County Council in April and ask for a police review board.

“The complaints we have is police are investigating themselves,” Ashanti said at the time.

The Maryland State Police Homicide Unit regularly investigates police-involved shootings, and for those incidents, the Wicomico County State's Attorney's Office makes decisions on whether to prosecute.

The process is similar after a citizen accuses an officer of, for example, using foul language or being rude. The matter is investigated by the internal affairs department.

Maciarella suggested following Prince George’s County, which has had a board since 1990. The county budgets more than $200,000 a year for its work.

The seven-member board must include at least one member for three specific fields: medicine, law enforcement (usually a retired law enforcement official) and the legal community.

That stipulation helped sway Lewis, who acknowledged his initial reaction was a flat no. He was worried it would be run by “special interest groups” with little or no expertise in police matters, he said.

Ireton, though, said, “I don’t think there should be someone second guessing a 911 call.”

Having an oversight board doesn’t address his biggest concern: the causes of crime. The idea merely feeds on the “emotional energy” buzzing around the country as it grapples with events in Ferguson, he added.

As for the cameras, Ireton said the city is prepared to make an announcement in early 2015 about a program. And Lewis said he is in favor of them, but he will have to persuade a new county executive and a reconstituted council that they are worth the expense.

Models available online range in price from $120 to $700.

Merrick Bobb is executive director of the Police Assessment Resource Center in Los Angeles and a longtime official police monitor. He applauded Maciarello’s stipulation that the board must have subpoena power, saying it ensures a degree of investigative independence.

“You want very honest, intelligent people who can take and analyze these kinds of incidents independently,” Bobb said.

Fairfax County police shot an unarmed man in his home and they won’t say why

By Editorial Board 

WHEN WILL Fairfax County and federal authorities stop stonewalling in the 2013 death of John Geer, an unarmed man shot at point-blank range by police as he stood in the doorway of his home?

How is it possible that 15 months after he was shot in the chest and left to bleed to death in his home , the authorities have neither disclosed the name of the county police officer who fired the deadly shot nor provided even the bare bones of an explanation for the shooting?

Are the Fairfax County police incapable of matching even the imperfect transparency and accountability of the police in Ferguson, Mo., where Officer Darren Wilson shot and killed Michael Brown, an unarmed teenager? Was the Fairfax police chief, Edwin C. Roessler Jr., even remotely sincere when he promised to “hold myself accountable” to Mr. Geer’s family?

And what about the U.S. Attorney for the Eastern District of Virginia, Dana J. Boente, to whom the case was handed by county prosecutors in February? Why has Mr. Boente, whose office has conducted at least preliminary interviews, been mum? Is he pursuing the case? If so, what is taking so long? If not, has he dropped it? And if he dropped it, why?

Will Mr. Boente not answer any of these questions even after they were posed to him, in a Nov. 13 letter, by Sen. Charles E. Grassley (R-Iowa), who will soon become chairman of the Senate Judiciary Committee? Are U.S. Attorneys accountable to no one? Does the fact that Fairfax County’s Board of Supervisors hired a high-powered Washington lawyer to represent it in the case mean that the board has abdicated its responsibility to press police for a truthful accounting of the facts?

And by the way, what are the unspecified conflicts of interest that caused county prosecutors to punt the case to the feds?

What in the world is going on here? At least two other police officers witnessed the shooting at close range; are their accounts to remain hidden indefinitely? What accounts did other witnesses to the shooting, who include friends and neighbors, give to the authorities?

Has anyone contradicted the accounts of witnesses who told journalists that while Mr. Geer had been drinking and was distraught that his longtime girlfriend was moving out, he brandished no weapons and posed no threat to the police or to public order?

Following the shooting, why was Mr. Geer allowed to bleed to death inside his home? Why did police and emergency personnel leave his body unattended for an hour? Could prompt medical attention have saved his life?

Does the officer who fired the fatal shot remain on the county police force with full pay? Will he or anyone be held accountable for the shooting of Mr. Geer?

How much longer will the stonewalling in Fairfax go on?

Florida Cop Fired for Misconduct With Woman He Arrested

Officer Robert Gebhardt terminated after internal affairs investigation.

A Gainesville police officer has been fired after an internal affairs investigation found he had sex with a 19-year-old woman he arrested for shoplifting.

The Gainesville Sun reported Friday that investigators found that Officer Robert V. Gebhardt visited the woman in jail, then tried to find her at a home where drugs were known to be sold. Chief Tony Jones signed the termination order Oct. 24, citing violations of policies on insubordination and immoral, unlawful or improper conduct.

She made the allegations in May to officers with the agency's Drug Task Force during an investigation into drugs and human trafficking. Records show the woman has a history of prostitution and drug use.

Police say Gebhardt gave her his cell phone numbers and said he'd like to take her out. 

Cops Arrest Man for Pointing Banana at Them, Say They Feared For Their Safety

Ed Krayewski

Darien Wilson avoided indictment, like many police officers involved in fatal shootings do, in large part because he claimed to fear for his safety. Cops almost universally make this claim after a shooting, and it almost always helps in avoiding any criminal charges. This claim by cops that they fear for their safety has become such a go-to claim it was even made by a 300 pound probation officer in Georgia who shot a 12-pound Jack Russell terrier. That officer also insisted he gave the dog "verbal commands" before shooting.

But officers in Colorado this week may have provided the clearest example of how the claim of "officer safety" is used to cover for police lack of thinking. The Daily Sentinel reports that police arrested a man from Fruitvale, Colorado, for allegedly pointing a banana in them as if it were a gun.

The deputies, Joshua Bunch and Donald Love, said they feared for their safety when the man, 27-year-old Nathan Rolf Channing, pointed a banana at them while crossing the 29 Road bridge on foot, according to Channing's arrest affidavit.

Both deputies said they saw that the "gun" was yellow, but feared for their lives nonetheless, the affidavit says.

"I immediately ducked in my patrol car and accelerated continuing northbound, fearing that it was a weapon," Bunch wrote in the affidavit, which lists Love and him as victims. "Based on training and experience, I have seen handguns in many shapes and colors and perceived this to be a handgun."

Channing was jailed for "felony menacing." Time to start raising IQ standards perhaps. Happy Thanksgiving.

Are Body Cameras The Answer To Cases Of Police Brutality?

The St. Louis County grand jury’s decision on Monday not to indict police officer Darren Wilson in the shooting death of Michael Brown has sparked national outrage and fueled growing debate over interactions between cops and civilians. While the evidence presented to the grand jury has not yet been released to the public, eye-witness accounts have conflicted as to exactly what happened, leading many to wonder why, in an age where every cell phone has a video camera, no video evidence of the encounter exists.

Now, critics, including Michael Brown’s parents, are calling for sensible reform and encouraging the use of body cameras on police officers. Similar to how police cruisers record traffic stops, these tiny video cameras would record police interactions with civilians, including criminal suspects. Unlike cruiser-mounted cameras, however, these video cameras would be portable rather than fixed straight ahead and record everything the officer sees and hears on duty.

Recording of police officers has become a topic of growing national concern, specifically with respect to police brutality. 2014 saw major media publications on events of police brutality, mostly due to the prevalence of cell phone video footage. For example, on July 17, a NYPD police officer was recorded on a cell phone strangling Eric Garner, an unarmed 43-year-old father of six, to death using a chokehold method banned by the precinct. In the video, Garner can be heard repeatedly saying, “I can’t breathe.” Earlier, in April, a Knox County, Tennessee Sherriff’s officer was recorded by a bystander choking college student Jarod Dotson.

More recently, a northwest Indiana man and woman have filed a federal lawsuit against the Hammond Police Department, alleging police brutality and excessive force during a traffic stop on September 25. The incident was captured on video by the woman’s 14-year-old son from the back seat. In the video, an officer can be seen smashing out the passenger-side window with an axe and forcibly dragging passenger Jamal Jones out of the car. In the video, one of the officers tells Jones, “Just so you know, we’ve got a camera recording here. You’re on a body mike.”

Civil libertarians aren’t the only ones supporting the adoption of police-mounted body cameras. Some police departments are also supporting the move, citing a reduction in complaints against police officers and more complete video evidence to use in prosecution of criminals.

Missouri Democratic senator Claire McCaskill, who supports requiring officers nationwide to wear body cameras in order to qualify for the hundreds of millions of dollars departments receive annually in federal funding, has, “Everywhere I go people now have cameras, and police officers are now at a disadvantage, because someone can tape the last part of an encounter and not tape the first part of an encounter. And it gives the impression that the police officer has overreacted when they haven’t.” The Ferguson Police Department has already deployed 50 cameras donated by Safety Visions and Digital Ally.

The American Civil Liberties Union has said that body cameras “have the potential to be a win-win, helping protect the public against police misconduct, and at the same time helping protect police against false accusations of abuse.”

But while the benefits to cops and civilians alike are clear, the costs to privacy are still unknown.

Citizens in public don’t have a reasonable expectation of privacy, meaning that anyone, including the police, has a right to record a police encounter in public. However, that is small consolation for a citizen who has a particularly embarrassing encounter with a police officer. In addition to the encounter being immortalized in video, the video could wind up on some embarrassing YouTube compilations or shame sites if taken in a state where the video is considered a part of the public record.

Additionally, police officers aren’t always relegated to public spaces. For example, an officer responding to a domestic violence call may reveal detailed information about a house’s interior, its occupants, and any possessions therein that could wind up as part of the public record, on the Internet, and in the hands of less reputable individuals.

Some have suggested allowing the police to turn on and off the camera to preserve privacy rights, such as when police are in private situations like using the restroom. Critics retort that a camera system that can be turned on and off at police discretion won’t help protect against police abuse, as cameras will just mysteriously malfunction or fail to record critical footage.

Body cameras also resemble other police surveillance technologies that have been less celebrated by the public. While police body cameras have earned the support of the ACLU, other systematic mass recording techniques, such as automated license plate readers, have drawn its consternation. Automatic license plate readers, which are capable of scanning up to 60 plates per second, are being deployed across the nation, fueled by millions of dollars in grant money by the Department of Homeland Security, the Drug Enforcement Agency, and Customs and Border Protection. Critics are concerned that systematic recording of the citizenry will infringe on citizens’ reasonable expectations of privacy and fuel the development of a police state.

It’s curious, then, that privacy watchdogs which normally treat mass surveillance technologies with caution or skepticism have wholeheartedly approved rapid deployment of body cameras.

Most importantly, police body cameras may be far more one-sided against citizens than current proponents suggest. In many states, the department can claim footage as part of an investigation, thereby locking away the footage from state open records laws. For others, however, the potential for police to unilaterally withhold controversial footage raises serious alarms regarding police transparency and abuse of the system.

In Seattle Washington, a police body camera pilot program was almost abandoned when an anonymous person demanded police turn over all video from patrol cars and body cameras, drawing serious police concern over privacy implications and manpower drain in processing the request. Although the Seattle request resolved amicably, privacy advocates and police departments are concerned about how footage might be used and disclosed. Behind this issue lurks a difficult question: How do we balance the increasing expanse of surveillance technologies with the fundamental right to privacy?

As the outrage simmers and the fires of the Ferguson riots burn out, police organizations will face increasing public pressure to deploy body cameras and record all public encounters. Although pilot programs are showing promising results, body cameras may raise more questions than they give answers. Lawmakers and precincts will need to develop, and quickly, rules that balance government transparency and privacy rights. Without these rules, body cameras could become just another police tool that can be misused against citizens.

Wade Sims is an attorney in Nashville, TN specializing in technology law, internet policy and civil liberties in the Information Age.  A former Major League Gamer, homebrewer,  wine consultant and writer, he loves all things gaming, geeky, gustatory, and alliterative.

Witness to Crash Assists in DWI Arrest of Off-Duty Cop

A witness to a hit-and-run accident in Queens followed the driver and called police, leading to the DWI arrest of an off-duty police officer, the NYPD said Saturday.

Officer Aaron Sanchez was arrested at 11:30 p.m. Friday after his car collided with a vehicle at the intersection of Northern Boulevard and 50th Street, authorities said.

Sanchez allegedly drove away from the accident scene, but was followed by a witness who contacted police.

Sanchez, who was driving his own car at the time, was charged with DWI and leaving the scene of an accident, police said.

No one was injured in the accident. 

Staten Island barber says police roughed him up in blotched iPhone sting

Michael Pacheco, owner of EZ Does It Barber Shop, is accusing cops of pummeling him for no reason during an undercover attempt to sell him a stolen iPhone 5.

NY Daily News

"They threw me across the room and started beating my brother while he was handcuffed," said Cummings, who says he settled a police brutality suit against the city for approximately $200,000 last year. "I don't know what's going on with Staten Island cops. They're not following procedures anymore."

Cummings was referring to the Eric Garner incident in July where the Port Richmond man died of a chokehold in police custody.

The altercation began last Friday at approximately 2 p.m. when an informant entered the business under the guise of trying to sell an iPhone 5, the family said. The NYPD initiative is known as Operation Take Back, where officers try to sell stolen iPhones or iPads.

Nobody bought the phone, the owners said.

They said they told the seller to leave before the younger Pacheco went outside with the informant to look at the phone before bringing it inside to show everyone.

That's when the melee broke out.

Then a few cops came into the store without identifying themselves before one lieutenant starting screaming about his phone, according to the family.

Pacheco told him nobody stole anything, and during the heated argument the lieutenant showed his badge.

"We told him nobody did anything. We're already upset because nobody did anything wrong," the elder Pacheco said.

The cop called for backup and almost instantly a group of 15 to 25 cops were crowded inside the small store.

During the fight, they threw the younger Pacheco to the floor and beat him up, the family says.

"I was shocked by the whole thing to be honest with you," Pacheco Jr. said. "I was ducking and weaving while they're throwing uppercuts and punching me."

"I wish the cops were more professional," the father said. "If they walked in with their IDs, there would have been no misunderstanding."

Police arrested the three men and took them to the 121st Precinct stationhouse, where they spent more than four hours in a cell before they were released.

The men were charged with disorderly conduct, resisting arrest and criminal possession of stolen property.

The father received a summons for disorderly conduct, he said.

The men said they appeared at Staten Island Criminal Court on Saturday, where they claim court officers told them they wouldn't be prosecuted.

A spokesman for the Staten Island district attorney's office said they declined to prosecute.

"The whole thing was so upsetting," Pacheco Jr. said. "We knew they were wrong."

Internal Affairs was at the barbershop Friday morning inquiring about the incident.

The family plans to sue the city, they said.

Police have yet to respond to a request for comment.

Staten Island barbershop owners say they were roughed up by the cops during undercover sting

By Mira Wassef 

STATEN ISLAND, N.Y. -- Staten Island barbershop owners say they were roughed up by a bunch of overzealous cops who stormed into their store last week during an undercover operation that went bust.

Michael Pacheco, 25, the owner of the EZ Does It shop at 1807 Forest Ave. in Graniteville, alleges he suffered a hemorrhaged right eye last Friday when an officer struck him in the side of the face with his police radio while he was handcuffed.

"The cop had his hands around my neck, hit me in the face and they were kicking and hitting me in the face," Pacheco said. "I went down when he hit me with the radio. Then he put his knee on my neck when I was down."

The police also arrested his father, Michael Pacheco Sr. and his brother Stephen Cummings, 29, during the commotion.

The incident was caught on a 9-minute video taken by a barbershop employee.

The Register's Editorial: Cops go too far charging man over Facebook criticism

The Register’s Editorial Board

Thomas Smith might have a legitimate complaint when it comes to race relations and the local police in Arena, Wis. But we'll never know, because Smith can't express himself in a way that helps his cause, or at least makes clear the nature of his concern.

In 2012, Smith posted the following message, albeit in colorfully unredacted form, to the Arena Police Department's Facebook page:

"--- the ---ing cops they aint --- but ---ing racist ----- an ----ing all of y'all who is racist."

For some reason, an Arena police officer decided to give that post the attention it did not deserve. He arrested Smith for disorderly conduct and unlawful use of a computerized communication system. In doing so, the officer needlessly escalated the conflict and, in the process, cast himself in the role of the uniformed bully who will jail anyone who challenges his authority.

Smith was convicted under an interpretation of a Wisconsin law that makes it a crime for people to utter "fighting words" intended to provoke an immediate, violent response.

An appeals court reversed that decision, pointing out that remote communications — phone calls, emails, Facebook postings and the like — by their very nature can't incite an immediate breach of the peace since there is no face-to-face encounter.

Predictably, Smith is now suing the village of Arena for violating his constitutional rights.

The lesson here for the Arena police is simple: Next time, take the high road. Not every insulting remark warrants a response, let alone an arrest.

Police officers carry carry the power of God on their hip, along with batons, Tasers and handcuffs. They should never feel threatened by derogatory Facebook postings.

Prince George’s County Officer Suspended

UPPER MARLBORO, Md. (AP) — A probationary officer has been suspended from Prince George’s County Police Department after being charged with simple assault and disorderly conduct in New Jersey.

The Washington Post reports that Officer Steven Varga was arrested in Atlantic City on Wednesday. He was off-duty at the time of his arrest. No other details about the arrest were immediately available.

The Post cited a police statement that said Varga was assigned to the department’s patrol bureau and worked for the county for one year.

Allegations Of Police Misconduct Rarely Result In Charges

By Reuben Fischer-Baum

Protesters block streets in St. Louis, Missouri, after the announcement that a grand jury decided not to indict Ferguson police officer Darren Wilson in the shooting death of 18-year-old Michael Brown.

A St. Louis County grand jury decided Monday that police officer Darren Wilson will not face trial for shooting and killing unarmed teenager Michael Brown in Ferguson, Missouri. Grand juries usually return indictments; the one exception is cases involving police shootings. But more than that, police shootings, and allegations of police misconduct in general, almost never make it in front of a grand jury. And officers rarely face legal consequences for allegations of misconduct.

As is the case with police shooting statistics, comprehensive numbers on accusations of police misconduct are hard to come by. There is no national reporting requirement for such accusations; in fact, many places have laws to purposefully keep the details of misconduct investigations out of the public eye.

Nevertheless, two nongovernmental sources stand out. A recent study out of Bowling Green State University — reported by The Wall Street Journal — identified 664 incidents from 2005 to 2011 in which police officers were arrested for having “pulled, pointed, held, or fired a gun and/or threatened someone with a gun.” These incidents resulted in 98 deaths. The most common “serious offenses” associated with these incidents are broken down below:

Of the 71 arrests for murder and nonnegligent manslaughter, just 31 came when officers were on duty. That’s about four a year during the study period. As a reminder, the best-available evidence from the Killed By Police Facebook page points to about 1,000 deaths each year caused by officers acting in the line of duty.

More general numbers on police misconduct come from National Police Misconduct Reporting Project (NPMRP), which collects data based on credible media reports (see its feed here). It was established by researcher David Packman in 2009, and operation of the database was transferred to the Cato Institute in spring 2012. Although the NPMRP continues to collect incidents, the most comprehensive and cataloged data comes from Packman’s original work. His key findings are largely laid out in a 2010 report.

In 2010, Packman identified 4,861 unique reports of police misconduct in the U.S. involving 6,613 officers. Almost 10 out of every 1,000 American officers were accused of some type of misconduct. For context, the 2010 violent crime rate was four crimes per 1,000 residents, and the larceny-theft rate was 20.1 per 1,000. Here’s a breakdown of the accusations by type:

Excessive force was by far the most common type of accusation, and 15 percent involved firearms. There were 127 excessive force incidents reported that resulted in fatalities, and the majority of these (71 percent) were shootings.

But, as was the case with Darren Wilson, most accusations of misconduct — combining all categories — did not result in criminal charges. Of the more than 8,300 misconduct accusations (involving almost 11,000 officers) in Packman’s database from April 2009 through the end of 2010, 3,238 resulted in legal action. The chart below outlines how often these charges resulted in convictions and incarcerations, compared with the rates for felony defendants in the general population (in the 75 largest U.S. counties) collected by the Bureau of Justice Statistics in 2006.

These numbers are now irrelevant to Wilson. Outside of the unlikely event that federal charges are pressed, his chance of being convicted and incarcerated for Brown’s death is almost zero.

SF Public Defender’s Statement on Grand Jury Decision

San Francisco, CA — After reviewing the transcripts and evidence released Tuesday, San Francisco Public Defender Jeff Adachi released the following statement today on the grand jury’s decision against indicting police officer Darren Wilson in the shooting death of Michael Brown.

“As San Francisco Public Defender, I am deeply disappointed with the grand jury’s failure to indict Darren Wilson for the fatal shooting of unarmed teenager Michael Brown. A series of questionable, and in my opinion, biased legal and ethical decisions in the investigation and prosecution of the case presented to the grand jury led to this unjust result, most notably allowing a local prosecutor with strong family connections to police supervise the investigation and presentation of the evidence. This ethical failure resulted in the exceedingly rare step of the prosecuting attorney refusing to recommend an indictment against the police officer he was prosecuting.   The police investigation and inquiry itself were rife with problems:

Because it was a grand jury inquiry and not a trial, Wilson took the stand in secrecy and without benefit of a cross-examination. Prosecutors not only failed to probe his incredible testimony but frequently appeared to be bolstering his claim of self-defense. Transcripts reveal that witnesses whose accounts contradicted Wilson’s were rigorously questioned by prosecutors.

Dorian Johnson, the key witness who was standing next to Brown during the encounter, provided strong testimony that called into question Wilson’s claim that he was defending his life against a deranged aggressor. Johnson testified that Wilson, enraged that the young men did not obey his order to get on the sidewalk, threw his patrol car into reverse. While Wilson claimed Brown prevented him from opening his door, Johnson testified that the officer smacked them with the door after nearly hitting the pair. Johnson described the ensuing struggle as Wilson attempting to pull Brown through the car window by his neck and shirt, and Brown pulling away. Johnson never saw Brown reach for Wilson’s gun or punch the officer. Johnson testified that he watched a wounded Brown partially raise his hands and say, “I don’t have a gun” before being fatally shot.

Wilson’s description of Brown as a “demon” with superhuman strength and unremitting rage, and his description of the neighborhood as “hostile,” illustrate implicit racial bias that taints use-of-force decisions. These biases surely contribute to the fact that African Americans are 21 times more likely to be shot by police than whites in the U.S., but the statement’s racial implications remained unexamined.

Prosecutors never asked Wilson why he did not attempt to drive away while Brown was allegedly reaching through his vehicle window or to reconcile the contradiction between his claim that Brown punched the left side of his face and the documented injuries which appear on his right side.Wilson, who is 6 feet 4 inches tall and 210 pounds, is never asked to explain why he “felt like a five-year-old holding on to Hulk Hogan” during his struggle with Brown, who is Wilson’s height and 290 pounds.

The police investigation itself revealed strong biases toward the police officer and against Michael Brown, leading to an ongoing federal investigation into the police department’s history of discriminatory policing practices, use of excessive force and violations of detainees’ constitutional rights.

It is important that communities throughout this country re-evaluate and reform our processes by which justice is determined. We must work to ferret out biases that threaten the very foundation of society and taint decisions rendered by our justice system.

It is also critical that we acknowledge the impact of implicit bias in decisions regarding stopping, investigating, arresting and prosecuting citizens, and in gauging whether deadly force is necessary. We must also demand that law enforcement agencies begin using available technology, such as police body cameras, to improve transparency and accountability to the public they are sworn to serve. And we must pledge to honor the request of Michael Brown’s family to work together to ensure that this tragedy is not repeated as it has been in the past.”