Few police are even charged in killings
Despite videos and outrage, cops almost never convicted
Prosecutions of police officers for homicides are rare. Convictions are even rarer. Even when the killings are captured on video.
No charges were filed against Daniel Pantaleo, the New York officer who put 43yearold Eric Garner in a choke hold in 2014, after arresting him for selling untaxed cigarettes, and held him down with other officers as Garner gasped “I can’t breathe” with his final breaths, later seen by viewers nationwide.
There was equal outrage, though no video, when prosecutors declined to ask a grand jury to charge Darren Wilson, the Ferguson, Mo., officer who fatally shot Michael Brown, an unarmed 18yearold black man, in 2014. Likewise when prosecutors filed no charges against two Sacramento officers who shot and killed another African American, Stephon Clark, 22, in his grandmother’s backyard in March 2018, saying they thought he was holding a gun. It turned out to be a cell phone. There are no known prosecutions of murder or manslaughter against San Francisco police.
By contrast, the videotaped events in Minneapolis on May 25 — when a police officer knelt on George Floyd’s neck for nearly nine minutes, as two other officers held Floyd down and a third stood nearby — led swiftly to charges of murder and manslaughter against Derek Chauvin and charges of aiding and abetting against the other three, while igniting global protests against police misconduct. But legal analysts said it may still be a long road to any guilty verdicts, because the officers will probably be judged by a group of civilians far different from those who have taken to the streets.
Many jurors are “quite sympathetic to police officers because they’re reluctant to secondguess decisions made by somebody in a highstress job, facing often significant danger,” said David Sklansky, a Stanford law professor, former federal prosecutor and codirector of the Stanford Criminal Justice Center.
“These weeks of protest and police violence may shift that to some degree, but I think there is longstanding belief and trust in law enforcement, in the police, in the military,” said Joanna Schwartz, a UCLA law professor who teaches courses on police accountability. “That’s something that’s baked into our society.”
In the 15 years before Floyd’s death, 110 officers have been charged with murder or manslaughter for onduty fatal shootings, according to records com
“There is longstanding belief and trust in law enforcement, in the police, in the military. That’s something that’s baked into our society.”
Joanna Schwartz, UCLA law professor
piled by Philip Stinson, a law professor at Bowling Green State University in Ohio. Just five have been convicted of murder, while 37 have been found guilty of lesser crimes. Of the 42 victims, 25 were black.
One recent conviction was in Minneapolis, where Officer Mohamed Noor was found guilty of thirddegree murder last year for fatally shooting Justine Ruszczyk Damond, a white woman who called police in July 2017 to report a possible sexual assault in an alley and was standing at the scene, raising her hand, when police drove up.
Noor was sentenced to 12½ years in prison, the standard sentence for the crime in Minnesota, though far shorter than typical terms for murder convictions in California and other states. The average term for the five officers convicted of murder was 12 years, according to Stinson’s data.
They included Jason Van Dyke, sentenced to 6¾ years for the seconddegree murder of 17yearold Laquan McDonald in Chicago in 2014. As Laquan, who was black, walked away from police carrying a knife that he had used to damage a police car, Van Dyke shot him 16 times, mostly while he lay on the ground. Van Dyke was not prosecuted until a video was released by court order more than a year later.
Videos don’t guarantee convictions, as illustrated by the case of Rodney King, the black motorist whose 1991 beating by Los Angeles police was shown in excruciating detail to jurors and the public. A suburban jury acquitted four officers in 1992 of criminally assaulting King, a verdict that ignited riots, although a federal jury later convicted two of the officers of violating King’s civil rights.
In San Francisco, police have not been prosecuted for murder or manslaughter. The most controversial recent case, captured on video, dates from December 2015, when officers were called to the Bayview neighborhood on the report of a stabbing and encountered Mario Woods with a knife in his hand. As Woods walked along a wall and refused to drop the weapon, five officers pelted him with beanbag rounds and pepper spray, then opened fire.
ThenDistrict Attorney George Gascón declined to file charges, finding insufficient evidence that the officers had acted unreasonably in defending themselves and others.
That standard was set by California law, and lawmakers have tightened it somewhat in response to criticism by Gascón and others.
Sonoma County prosecutors used similar reasoning in declining to charge a sheriff ’s deputy who fatally shot 13yearold Andy Lopez in Santa Rosa in 2013 after the boy, who was walking away from a patrol car, turned around while holding a toy gun that resembled a rifle. The county later paid his family $3 million to settle a lawsuit.
Such cases have prompted calls to take police prosecutions away from district attorneys, who rely on police for investigations, testimony and often electoral support, and reassign them to the state attorney general or an independent prosecutor. Charges in
Floyd’s killing were expanded after Minnesota’s governor called in state Attorney General Keith Ellison to prosecute the case. But when a similar change was proposed in California in 2014, Kamala Harris, then the state’s attorney general, opposed it and said the decision should remain up to locally elected district attorneys.
Probably the most notorious Bay Area police homicide in recent years was the fatal shooting of Oscar Grant, 22, by BART Police Officer Johannes Mehserle as Grant lay face down on the platform at Fruitvale Station in Oakland on Jan. 1, 2009, after a disturbance on a train. Mehserle was charged with murder but convicted of involuntary manslaughter after testifying that he thought he was firing his taser rather than his handgun. He was sentenced to two years in prison, the minimum under the law, and released after 11 months.
As in many such cases, Mehserle’s fellow officers testified in support of his version of events.
While police testify for the prosecution in most cases against civilians, “it’s traditionally difficult to get police officers to testify against each other,” Sklansky said.
It’s also difficult to prosecute officers for fatally assaulting someone who was armed, or appeared to be armed.
“If a civilian has a weapon, in almost every case the prosecution is not going to bring charges,” said Kate Levine, a professor at the Benjamin N. Cardozo School of Law in New York who has researched police prosecutions. In many states, she said, “the law allows them to use deadly force if they see a weapon, or if an officer can credibly claim that they feared for their life.”
That may not be an ironclad defense in California. Partly in response to the fatal shooting of Stephon Clark, California legislators passed a law effective this year requiring police to show that they “reasonably believed” their use of deadly force was “necessary in defense of human life” to justify their actions. Under the previous standard, officers were required only to show that their actions were reasonable.
Still, if a police department manual appears to authorize a specific use of force — kneeling on a prone suspect, for example — a conviction may be difficult or even impossible, said Laurie Levenson, a Loyola Law School professor in Los Angeles and a former federal prosecutor. A similar rationale was apparently behind the decisions by a New York grand jury and federal prosecutors not to charge the officer who fatally choked Eric Garner.
Suing police for damages is equally challenging. A 1982 U.S. Supreme Court ruling grants officers “qualified immunity” — a shield from liability with few exceptions. Even if police actions were obviously wrong, they cannot be sued successfully unless the courts had expressly condemned that conduct in the past.
Harris, now a Democratic U.S. senator from California, is cosponsoring a resolution calling on Congress to abolish qualified immunity, and a bill to that effect has been introduced in the House.
Harris is also cosponsoring legislation, introduced Monday, that would prohibit federal law enforcement officers from using choke holds, require them to use body cameras and dashboard cameras, and broaden the definition of federal police misconduct. In California, Gov. Gavin Newsom has ordered local police to stop training officers in the carotid restraint, a type of choke hold in which police press veins on each side of the neck to render someone unconscious. San Francisco and Los Angeles already prohibit their police from using choke holds.