David A. Graham
December 29, 2015
The Atlantic
Despite the political pressure to prosecute cops in cases like Tamir Rice’s, the current system grants enormous leeway to officers who employ lethal force.
Although 2015 will go down as the year when the United States began grappling with the problem of police violence, it ended with a trio of defeats for reformers.
First, a jury in Baltimore was unable to come to a verdict in the trial of Officer William Porter, one of several officers charged in the death of Freddie Gray. Several days later, a grand jury in Waller County, Texas, decided that there had been no crime committed in the death of Sandra Bland in a jail cell there. Finally, and most gallingly to many observers, on Monday a grand jury in Cuyahoga County decided not to indict two officers in the shooting death of 12-year-old Tamir Rice.
Taken together, these cases—and particularly the Baltimore and Cleveland cases—demonstrate yet again the difficulty involved in holding police accountable when civilians are killed. Even as there is greater awareness about the toll that police killings take, police are seldom prosecuted, and when they are, they are seldom convicted. That was the case before Michael Brown’s death in August 2014, and it remains true today. The reasons for that are various. Prosecutors are reluctant to bring charges against police, because they rely on officers to gather information and serve as witnesses in other cases. Juries tend to be deferential to officers. There are also legal protections: In Graham v. Connor, the Supreme Court ruled that events “must be judged from the perspective of a reasonable officer, rather than with the 20/20 vision of hindsight.” Finally, even when the facts seem clear-cut, the law grants police wide latitude. Although many people who watched dash-cam footage of Bland’s arrest were horrified by Trooper Brian Encinia’s conduct, police experts who reviewed the footage, including some who criticized Encinia’s judgment in no uncertain terms, generally felt he had acted within his legal authority. Many departments employ “use-of-force matrices,” which detail what steps an officer may take during an incident, in some cases giving them the right to use more aggressive action than might be necessary or seem justified to an outside observer.
This was particularly apparent in the Rice case. The boy was shot by an Officer Timothy Loehmann just seconds after he arrived on the scene, sent by a dispatcher who told him there was a report of a man pulling out a gun and pointing it at people. Surveillance footage of the death galvanized and appalled the nation. The 12-year-old being gunned down by the officer so abruptly seemed to exemplify overuse of deadly force, while the ensuing events—Rice’s sister was prevented from reaching him, and officers did little to save his life—clinched the case as a signal injustice. As more information emerged about Loehmann, including his abbreviated, troubled career with another Ohio police department, there seemed to be widespread recognition that he shouldn’t have been wearing a badge and that he had acted inappropriately when he shot Rice.The problem is that although Loehmann’s actions may have seemed obviously inappropriate to a layman, that doesn’t mean that they actually violated the law. Three independent reports, commissioned by Cuyahoga County Prosecutor Timothy McGinty all found that the Loehmann and his partner Frank Garmback had acted within proper protocols and rules for officers. (One report used particularly unfortunate and offensive language, likening Rice’s loss of life to the potential end of Loehmann’s career.) The grand jury’s decision not to indict is simply the latest evidence that no statutory crime may have been committed.
In announcing the grand jury’s decision, McGinty made that argument: What happened was terrible, but I can’t prove it was a crime. “The state must be able to show that the officers acted outside the constitutional boundaries set forth by the Supreme Court of these United States,” he said, and while Rice’s death was a “tragedy,” McGinty said, “it was not, by the law that binds us, a crime.”
That isn’t to say that McGinty couldn’t have procured an indictment—if not necessarily a conviction—if he’d taken a more aggressive strategy. The DA has come in for harsh criticism throughout the case. He took an extremely long time to bring the case before a grand jury—so long, in fact, that Rice’s family and activists dredged up an obscure Ohio law to get a municipal judge to issue at warrant for the officers, circumventing the McGinty’s process. (They received an unsatisfying split decision: A judge ruled that there was probable cause to arrest the officers, but that the law did not actually authorize him to issue warrants.)Activists and other observers accused McGinty of issuing the three independent reports as a way to justify a future failure to indict—a suspicion that Monday’s announcement will only reinforce. McGinty also failed to convict Officer Michael Brelo in the 2012 deaths of Timothy Russell and Malissa Williams, two residents gunned down after a mistaken chase. In short, McGinty seems at best soft on police and at worst ineffective as a prosecutor. “It has been clear for months now that Cuyahoga County Prosecutor Timothy McGinty was abusing and manipulating the grand jury process to orchestrate a vote against indictment,” Rice’s family said in a statement.
But one tough lesson of the William Porter case is that however lethargic McGinty’s approach may have seemed, a more aggressive approach is no guarantee of different results. Whether prosecutors move glacially and timidly or quickly and boldly, it’s hard to hold police accountable because of the way the law is written and the system works. Baltimore City State’s Attorney Marilyn Mosby did practically everything differently: She moved with incredible speed to bring charges against the officers involved in the death of Freddie Gray, and she brought an aggressive slate of charges—including a depraved-heart murder charge against one officer. She quickly obtained indictments from a grand jury and prepared to take the cases to trial.
But once the first trial began, the difficulties facing prosecutors became clear. A central element of the state’s case was an accusation that Porter had failed to restrain Gray with a seatbelt. Yet Porter’s team mounted a convincing argument that although Porter may have violated written policies, what he did was in line with general practice for Baltimore cops. The law was murky enough that it was tough to obtain a conviction, and some analysts felt that prosecutors were lucky to get a hung jury rather than simply an acquittal.
http://portside.org/2015-12-
(2) Police Killings: Why We Must Keep Counting
Editorial
January 31, 2016
The Guardian
At the beginning of 2015, the Guardian began a grim task – to record the death of every person killed by American police officers – for a simple reason: astonishingly, the United States government publishes no such record.
Even as protests and calls for systemic policing reforms continued after the killing of Michael Brown in Ferguson, Missouri, the US Justice Department’s best data scientists could not provide a figure for how frequent officer-involved deaths had become. The government scientists had been starved of funding.
Even as Barack Obama pressed his post-Ferguson policing taskforce on “the need to collect more data” for “appropriate oversight”, the FBI director admitted his agency’s oversight system was broken: “It’s ridiculous that I can’t tell you how many people are shot by police in this country right now,” James Comey said earlier this year.
The Guardian did what the US government by its own admission had failed to do for its own citizens: we counted.
We counted 177 deaths of young black men – 15% of all police killings this year, despite African American males making up just 2% of the country’s population. We counted 246 deaths of people about whom mental health issues had been reported – eight of which were officially ruled a suicide. We counted 124 deaths caused not by gunshot but by some other use of force – including Freddie Gray, who died after sustaining injuries in the back of a police van in Baltimore, where six officers face criminal trials in 2016 in connection with his death.
We have counted 1,134 total deaths at the hands of American police in 2015. That is approaching three times greater than the 444 “justifiable homicides” logged by the FBI’s entire team of government researchers for all of last year.
Just as the police killings have multiplied, so has the powerful protest movement against them – only with too little meaningful change. More than 15 police officers have been charged with manslaughter or murder this year – including one in Virginia first brought to widespread attention by the Guardian, one in Chicago that led the firing of the police chief and the institution of body cameras, and one in South Carolina that, like so many other encounters caught on video this year, went viral. But there seems to be no justice in Cleveland, where the mother of 12-year-old Tamir Rice must now live with the reality of an officer who killed her son going free. And there is no peace for the families of so many people – predominantly men, disproportionately black – whose lives do not register even as a number.
There can be no progress without more comprehensive context.
“It is unacceptable,” James Comey said in October, that “the lead source of information about violent encounters between police and civilians” has become the media – specifically naming the Guardian and the Washington Post, which began publishing a database documenting only fatal police shootings one month after The Counted was released to the public.
“That is not good for anybody,” Comey said. “It’s ridiculous – it’s embarrassing and ridiculous.”
He was right. Indeed, the ongoing absence of appropriate official oversight is an affront and is no longer tolerable.
So the FBI announced plans to overhaul its failed undercount, promising to publish a wide range of data beyond shootings and in relative real-time, with a system resembling The Counted. But that count will remain voluntary for police, and thus grossly incomplete once again. What if only a fraction of the 18,000-odd police departments in the US have the decency to report themselves, when officers kill the people they are sworn to protect?
The Justice Department’s data scientists have restarted their count, too, as the federal government deemed arrest-related deaths once again meaningful enough statistics to log alongside lawn care and peanut consumption. But what if this open-source system, which researchers say could pick up where the Guardian might stop counting, misses significant incidents? What if the world never knew that somebody had died?
Senators Cory Booker and Barbara Boxer have called for the US Congress to mandate that all police departments report when they are responsible for someone dying – which they should. Boxer has called the Guardian’s work “the wind at our back”. But their legislation has languished in the Republican-controlled Senate, as Comey and other Obama cabinet members talk without measurable facts about a “Ferguson effect” of viral videos and anti-police protests leading to more crime.
America’s crisis of police violence is one that those at the highest levels of power have only just begun to comprehend. If the public cannot have a basic understanding of the scale of the problem, how can we begin to properly grapple with the solutions? What good is a body camera if hundreds of uncounted lives do not officially matter?
These unanswered questions compel us to directly hold the government to account by continuing to monitor deaths in parallel with the Obama administration’s two promised official efforts. The Guardian will begin a new count of people killed by US police for 2016, tracking the lethal use of force every day with the help of the community. We will not stop until we are satisfied that the federal government is doing its job, and that we no longer have to do it for them.
http://portside.org/2016-01-
(3) Comment from a former police officer:
"First, for those of you who don’t know, I am a former police officer (14 years) who now works as an attorney handling civil rights matters.
"... there is a multitude of evidence that African American persons get treated differently across the board. From the so-called war on drugs to everyday patrol incidents, black people suffer from simply being black. But I don’t really need to see more evidence. I was a police officer for 14 years (before going to law school and passing the bar), and I stand before you today as a witness—and a person confessing past wrongdoing—that I and almost all of the police I knew discriminated against black people.
"As a young police officer, I wanted to do a good job. That truly was my underlying motivation for my actions. I did not have any particular hatred for black people, but I had been raised (1) to fear and disrespect and misunderstand black people and (2) to believe that black people were 30% of the population and committed 80% of the crimes. My fellow officers and I (and yes, even including the black officers, for the most part) were of the firm belief that if it was 2:00 in the morning and five cars drove by—four of them occupied by white people and one occupied by black people—the one with the black people was the one to follow and the one to stop. Why? Because we were all raised to believe that there was a much higher probability that the black people were up to some sort of mischief.
"While racism can be categorized many ways, I make the argument that one possibility is to divide racist persons into two groups:
"Type A racists are the haters. They seethe with hatred for black people (or homosexuals or whatever) and will go out of their way to see those people come to harm. They love to see the object of their hatred get beaten, taken to jail, etc. I knew police officers like this, but most of the police officers I knew (including me) were not like this. Type A racists are definitely a minority in police work. They are horrible people, and they get away with their wrongdoings because police culture protects them, but they are not in the majority.
"Then there are Type B racists, like I was. These people don’t actually feel hate in their heart, but they feel something. Maybe it is fear, because they grew up believing that black people were the robbers and rapists and killers. Maybe it is simply a numbers thing . . . a degree of probability that black people are more likely to be up to mischief. Hell, I suppose it could even be pity.
"But it doesn’t matter! Whatever it is, it makes those police officers (who, in spite of much propaganda to the contrary, are NOT in the minority among police in our country) treat black people differently. I did. Almost everyone who worked alongside me did. We treated black people differently because we felt it was necessary in order to keep drugs out of our community and to make our streets safe, and then we covered up for each other to keep that fact hidden. It was wrong, and I repent for it now, but it happened then and still happens now every single day, just as certain as the sun will still be burning tomorrow.
"I always hear the same crap: “A few bad apples don’t spoil the whole tree.” Well, that simply is not the case. Sure, if you define “bad apples” as Type A racists only (see above), then they certainly are in the minority. But they are not really the problem, are they? No. They would soon be ejected from law enforcement if all the rest of the police officers would do the right thing and testify and report truthfully against them. But they won’t. I did not (at least, not until my last several months as a police officer) . . . and almost every one of the dozens (if not hundreds) of police officers I became acquainted with over the years did not. (And yes, that even includes a large percentage of minority officers, who seemed to join in the mistreatment of black people in order to fit in and get along.)
"Police culture is ill with racism. It is also (separately, but overlappingly) ill with misconduct in the form of unlawful arrests, self-professed ignorance of the law (as a self-protection device), and excessive use of force. I admit that outside of these Type B racist actions, most police officers are “good people” and want to do a good job, generally speaking. But that is simply not good enough. If we include Type B racists—all of whom treat black people differently, either through action or inaction—then I am a witness here to tell you that police culture is ill to a crippling degree. Indeed, the whole tree is poisoned."
Reggie Koch
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