Posted by David Greenwald
The willingness for prosecutors
to charge and prosecute police officers for on-duty murder is one of the
biggest changes that has happened in the last year since the fallout from
Ferguson and Staten Island. When a Grand Jury refused to indict officers involved
in the killings of Michael Brown of Ferguson and Eric Garner of Staten Island,
it was largely business as usual for prosecutors reluctant to charge police
officers for crimes committed while on duty.
We saw this in Yolo County. In
2009, sheriff’s deputies shot and killed Luis Gutierrez, who they said fled
from them on Gum Avenue in Woodland and then pulled a knife.
Six months after the shooting,
the DA’s office concluded their investigation and found, “When considering all
of the facts and circumstances known to them at the time, the use of deadly
force by the deputies was objectively reasonable and justified and therefore
does not warrant the filing of criminal charges against Sgt. Johnson, Deputy
Oviedo or Deputy Bautista.”
Said Assistant Chief Deputy
Jonathan Raven at the time, “The district attorney’s report was based on a
lengthy (Woodland) Police Department investigation and we were thorough and
deliberate. We came to a decision and
even asked the attorney general to review it, and we also asked the U.S.
Department of Justice and the FBI to conduct their own investigation, and
certainly we hope the community is comfortable with the decision, because
that’s important to us.”
A jury in a federal civil rights
case in the fall of 2012 found for the officers in that case – the shooting was
not captured on video.
In 2012, ten months after the
November 18, 2011, pepper-spraying incident at UCD, the DA’s office concluded
“that the use of force in this case was not unlawful.”
In their conclusion, the DA wrote,
“Lieutenant Pike’s pepper spraying of the seated protesters has been seen by
and has outraged millions of viewers throughout the world. Based on the thirty
seconds of video that most people have seen the pepper spraying may look like
unreasonable force.”
“In evaluating the totality of
the circumstances under a reasonable doubt standard, we have considered and
given substantial weight to the opinions and conclusions set forth in the Kroll
Report,” the DA writes. “In light of this additional evidence, and viewing the
incident through the totality of the circumstances, there is insufficient
evidence to establish proof beyond a reasonable doubt that the use of force
involved in the November 18, 2011, pepper spraying was unlawful and therefore
warrants the filing of criminal charges.”
Even on the few cases when
prosecutors were willing to seek indictment or otherwise charge police officers
for fatal shootings, getting convictions was difficult.
Oscar Grant was shot by BART
Police Officer Johannes Mehserle on New Year’s Day 2009. Officers detained Mr.
Grant and others on the platform of the BART station. Officer Mehserle stood
and said, “Get back, I’m gonna Tase him.” Then, the officer drew his pistol and
shot Mr. Grant in the back. Mr. Grant, unarmed, was pronounced dead the next
day. This event was captured on video and widely disseminated.
In 2010, Mr. Mehserle was charged
with murder, and he resigned his position. In July, the jury returned a verdict
of not guilty of second-degree murder and voluntary manslaughter. He would be
found guilty of involuntary manslaughter and was sentenced to two years and
released in June of 2011, having served 11 months.
These types of decisions
represented conventional wisdom at the time. Even when prosecutors were
inclined to charge police officers with crimes, they feared juries would side
with the police.
However, an Atlantic article this
week finds that, over the past five months, 14 police officers have been
charged in on-duty killings – a rate that represents five times the previous
rate for charging.
This week, a judge ordered
Albuquerque officers to stand trial for killing a homeless man as he appeared
to surrender. The same day, “two former East Point police officers were
indicted on charges that they murdered a 24-year-old father by repeatedly using
their Tasers on him while he was handcuffed and sitting in a creek,” the
Atlanta Journal Constitution reported.
On Monday, the Washington Post
reported that a “former Fairfax County police officer was charged with
second-degree murder, nearly two years after he shot an unarmed Springfield man
who stood with his hands raised in the doorway of his home.”
In July we had the prosecution of
Ray Tensing for the killing of Samuel DuBose, in June Michael Slager was
charged with the killing of Walter Scott, and in May six officers were indicted
on homicide charges connected to the death of Freddie Gray.
The Washington Post cataloguing
of police murders found that “American police officers kill orders of magnitude
more people than their counterparts in other western democracies.” The Atlantic
reports that “the number of U.S. cops arrested for killingsin the last five
months exceeds the total number of people shot and killed by cops in England
going back five years. This is particularly extraordinary, given how reluctant
many U.S. prosecutors are to file charges against police, and how much
deference police reports are given in the absence of video or forensic
evidence, like a bullet in the back, that blatantly contradicts their story.”
In a seven-year period ending in
2011, just 41 officers were charged in connection with on-duty shootings, the
Wall Street Journal reported in 2014, citing research by Philip Stinson, an
assistant professor of criminal justice at Bowling Green State University.
“That figure works out to an average of 5.8 officers charged per year, but
excludes officers charged in non-shooting deaths.”
The Atlantic notes, “And while it
may be that the five-month period we’re in now will look like just an unusual
cluster, if the rate at which cops are indicted for killings continues at this
pace, then we’re witnessing a sharp disjuncture with the recent past.”
If this trend continues, then it
would appear that the protests and awareness brought by the #Blacklivesmatter
movement will have led to policy change. If it reverts, then it will just have
been a momentary blip, soon forgotten.
—David M. Greenwald reporting
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