You can’t indict a cop

2014-11-30 15:00

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How do we stop trigger-happy white police officers shooting black people in the US?

Police form a line on a street under a festive season sign in Ferguson, Missouri, after a grand jury returned no indictment in the shooting of Michael Brown, while protesters (below) demonstrate against the verdict in New York
Picture: Reuters

How to police the police is a question as old as civilisation now given special urgency by a St Louis County grand jury’s decision not to indict Ferguson police officer Darren Wilson in his fatal shooting of an unarmed teenager, Michael Brown.

The result is shocking to many and depressingly predictable to more than a few.

Can the cops be controlled? 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.

Police shootings in the US

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. Homicides committed by on-duty law enforcement make up 3% of the 14?196 homicides committed last year.

The FBI’s police homicide statistics are fuzzy, and are surely an undercount, given that they come from voluntary reports from police departments across the country. That the federal government does not keep a strict national tally shows just how seriously they take this problem.

Licence to kill

Chapter 563 of the Missouri Revised Statutes authorises deadly force “in effecting an arrest or in preventing an escape from custody” if the officer “reasonably believes” it is necessary “to effect the arrest and also reasonably believes 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. Authorising deadly force is something called “objective reasonableness”.

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.

“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 judgements of panic-fuelled police officers.

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.

Not surprisingly, then, that legal experts find “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.

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 regulations and the law are not the same thing. 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.

The reality is that it is extremely difficult to get law enforcement to police itself and self-regulation here – as it is in poultry processing or coal mining – is 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.

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.

Don’t make a federal case 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 government a second chance to prosecute on different charges.

Will US President Barack Obama’s justice department 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 Wilson’s version of the shooting — which would make the federal standard of wilful misconduct difficult to prove.

The department of justice has signalled with its leaks that it is backing away from a federal case against the officer.


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.

But, just as often, these videos end up illustrating just how much leeway police have in opening fire on a suspect.

There really is no courtroom miracle nor a 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 overcriminalisation is going to have to look beyond criminal prosecutions of individual police and take in the big picture.

The militarised police response to the mostly nonviolent demonstrations in Ferguson and elsewhere has appalled not only progressives, but many conservatives.

The army’s provision of weapons surplus ought to be easy to end.

Gun control advocates would do well to lobby hard and publicly for arms control measures applied to the police as well – undisciplined but armoured cops are part of what drives many otherwise sane private citizens to build their own private armouries.

Wanton overpolicing had poisoned relations between the people and their government well before Wilson shot dead the unarmed teenager.

The local government in Ferguson has been treating its residents and neighbours less like free people with rights than like revenue dairy cows to be exploited to the maximum.

Citations and fines for petty offences are profligately inflicted on residents, particularly black ones.

Not surprisingly, high on the list of demands at one Ferguson community forum was an end to the “overpolicing and criminalisation of poverty”; an amnesty for old, unpaid warrants; new fines proportional to income; and a state law capping municipal revenue from court fees at 10%.

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 militarised, that shocked the world over the summer, when much of the state’s use of force against demonstrators was of dubious legality.

These big-picture reforms are fundamentally political solutions that will require a long-term effort, coalition politics that span race, ethnicity and political affiliation — these are a challenge, but also a necessity. – The Nation

Madar is a civil rights attorney and the author of The Passion of Bradley Manning: The Story Behind the WikiLeaks Whistleblower

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