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?
