Why It’s Im­pos­si­ble to In­dict a Cop

The Star (St. Lucia) - - LOCAL -

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.

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. 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.

Per­haps the most dis­turb­ing thing about these po­lice killings, many of them of un­armed vic­tims, is that our courts find them per­fectly le­gal.

Chap­ter 563 of the Missouri Re­vised Statutes grants a lot of dis­cre­tion to of­fi­cers of the law. 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. 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.

“Ob­jec­tively rea­son­able”—what could be wrong with that? 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. 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. 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.

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. It would cer­tainly be a good thing if po­lice depart­ments in­vested less in mil­i­tary gear and more in dash­cams and GoPro cam­eras; with the right depart­ment pro­to­cols and prac­tices, these cam­eras strengthen po­lice ac­count­abil­ity.

Riot po­lice in Ferguson, Missouri (AP Photo/Jeff Rober­son)

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