Cops rarely prosecuted, convicted in Arizona
In 600 shootings, police cleared in 94% of cases
Community members for years have tried to bring attention to fatal police shootings and in-custody deaths in Arizona.
They have called on leaders to hold officers accountable.
Their pleas have largely been ignored.
The killing of George Floyd in Minneapolis has brought new scrutiny to other deaths, other cases of excessive use of force.
In August 2014, Phoenix Sgt. Percy Dupra shot and killed 50-year-old Michelle Cusseaux, who suffered from bipolar disorder, schizophrenia and depression. Police had arrived at her house to take her to a mental health facility. Cusseaux answered the door with a hammer above her head. Dupra was demoted, but not criminally charged.
In January 2016, Mesa police Officer Philip Brailsford shot and killed Daniel Shaver, a man who was on his hands and knees begging for his life. Shaver was not armed. Brailsford was fired and charged with second-degree mur
der, but a jury acquitted him.
In July 2016, Tempe police Officer Edward Ouimette shot 19-year-old Dalvin Hollins in the back, killing him. Hollins had run away from police after a drugstore robbery where witnesses said the robber simulated a weapon. But he was not armed. Ouimette, who did not turn on his body camera until after the shooting, was not criminally charged.
In January 2017, Muhammad Abdul Muhaymin Jr., cried, “I can’t breathe,” as four Phoenix police officers had their knees on his back, neck and head. He died while they held him down. The interaction started because he wanted to bring his service dog into a public restroom. He was not armed. None of the officers were criminally charged.
In January 2019, for Tempe officer Joseph Jaen shot and killed 14-year-old Antonio Arce, who was running away. He was holding a toy airsoft gun. Jaen resigned from the department. He was not criminally charged.
In May 2019, Phoenix police Officer Christopher Meyer pointed a gun at Dravon Ames in front of Ames’ then-pregnant fiancee and children, one of whom was suspected of shoplifting a doll. Meyer was fired, but has not been criminally charged.
The names and the details of each case change. But the outcome stays the same: The officers are almost never convicted of any criminal wrongdoing.
An Arizona Republic analysis showed that in 600 police shootings statewide from 2011 to 2018, officers were cleared of criminal wrongdoing 94.5% of the time. The rest are pending, or The Republic could not confirm an outcome.
Since 2017, 35 people have died in the custody of a police department in Maricopa County. In 28 of the cases, officers were cleared of wrongdoing. Seven are pending a review or decision, according to the Maricopa County Attorney’s Office.
Protests, marches, investigations and sometimes lawsuits followed many of these high-profile encounters. A few were disciplined; even fewer were fired.
In the hundreds of police shootings and in-custody deaths since 2002, The Maricopa County Attorney’s Office has charged three officers. One of those was convicted.
Often, public officials promise significant changes. And there has been some: more body cameras, more training and more transparency.
But the underlying system that protects law enforcement officers from being held criminally responsible for their actions remains the same.
Local and national experts hope the response to Floyd’s death could be the turning point.
Almost two weeks of protests in Phoenix and across the country have stoked a desire for change.
“Community protesters in certain places are worn out. They’ve been doing these protests and trying to advocate for change and falling on deaf ears,” Robert Durán, an associate professor of sociology at Texas A&M University in College Station, said. “To see other people take part in the protest is encouraging. Seeing other people saying it’s not right, I think that gives me hope.”
The officers involved were quickly fired and criminally charged days after a video of Floyd’s killing was widely shared.
In Arizona, experts say common flaws in the current system emerge as deadly force is investigated, as prosecutors handle such cases, as police unions weigh in, and as juries interpret the lethal force law and weigh who is most believable. Politics plays a role as well, because the top prosecutor in all 15 Arizona counties is the county attorney, who sets the tone for the office and who depends on public support to get reelected every four years.
That makes them susceptible to the scrutiny of influential police unions and other political groups. Their success with other cases — also a key factor in their electability — depends on their relationship with police departments.
Laws that allow officers to respond with lethal force if they fear for their lives or the lives of others are open for loose interpretation.
And historically, police officers have held an elevated position in society, making juries reluctant to convict them for actions taken in the line of duty.
Usually, after a police shooting or an in-custody death, the police agency will start two investigations.
One determines whether the officer’s actions were within policy. The second is a criminal investigation that is then submitted to a prosecutor who decides whether any criminal charges should be filed against the officer.
Sometimes, outside agencies take over one or both of these investigations.
In Maricopa County, a panel of prosecutors from the County Attorney’s Office reviews the case and makes a recommendation to the county attorney, who decides whether charges should be filed.
The professors interviewed by The Republic said it has historically been a challenge to charge an officer because prosecutors work with police departments daily, creating a potential conflict of interest.
“They often hold their responsibility more toward the police department rather than the citizens or residents of the county,” Durán said. “Most of the time, they’re not holding police officers accountable.”
Kate Levine, a law professor at the Cardozo School of Law at Yeshiva University in New York, said a conflict of interest often exists between local prosecutors and police departments because prosecutors rely on police officers to be their key prosecution witnesses in other criminal cases.
“This is a systemwide problem with the criminal legal system that’s not isolated,” she said.
If a prosecutor does charge an officer in connection with an on-duty shooting or another deadly force incident, politically powerful police unions and departments often attack the head of the prosecutor’s office, the professors said.
When former Maricopa County Attorney Bill Montgomery charged Brailsford with second-degree murder for killing Shaver, the Mesa police union vehemently defended the officer.
During his trial in 2017, union officers showed up every day in support, giving interviews to journalists and accusing Montgomery’s office of playing politics.
In 2010, former Phoenix police Officer Richard Chrisman killed 29-year-old Danny Frank Rodriguez. Chrisman’s partner, Officer Sergio Virgillo, who was at the scene and told detectives Rodriguez didn’t pose a threat, was heavily criticized by the union for his statements.
During Chrisman’s trial, Virgillo told jurors he successfully de-escalated the situation and was encouraging Rodriguez to leave on his bicycle when Chrisman shot Rodriguez twice in the chest. Chrisman also shot and killed the man’s dog.
A jury convicted Chrisman of aggravated assault for holding a gun to Rodriguez’s head but failed to reach a verdict on a second-degree murder charge. Chrisman later pleaded guilty to manslaughter to avoid a second trial. He was sentenced to seven years in prison.
The thousands of protesters in different cities, including Phoenix, currently demanding accountability of officers could put a new kind of political pressure on prosecutors across the country, said Rod Brunson, a professor at the School of Criminology and Criminal Justice at Northeastern University in Boston.
“Prosecutors should emphasize that they are going to be fair and impartial in upholding (the law) and hold police accountable,” Brunson said. “Those are not necessarily messages that the rankand-file officers and their unions are comfortable with.”
Candidates running to lead the prosecutor’s office should address the issue as a campaign topic, Brunson said.
“It doesn’t mean these prosecutors don’t respect the police or are out to vilify the police,” he said. “But they also understand that they have a responsibility to the community at large. Messages like that, that reinforce that prosecutors have a responsibility to citizens and not individual organizations, are needed, especially in a time like this.”
Juries give benefit of the doubt
If a prosecutor does charge an officer, there’s an even greater challenge: a jury.
Americans typically have held police officers in high esteem, and it has been a challenge to convince a group of jurors that police officers can commit crimes, too.
In some cases, attorneys paint victims of police violence in a negative manner so they look unfavorable to a jury, said Kami Chavis, a law professor at Wake Forest University.
In the Mesa case, police reported that Shaver had been intoxicated. In the Tempe shooting of Antonio Arce, the teen had been possibly rifling through a vehicle that didn’t belong to him. Muhaymin had a warrant for his arrested and then resisted the officers.
Chavis said she believes that some prosecutors have neglected their responsibility to charge officers.
“We have a problem with prosecutors failing to bring these cases,” she said. “But then, even where we see prosecutors bring these cases, like in the case of Freddie Gray and others, we see a lot of acquittals.”
The U.S. Supreme Court has ruled that officers can use deadly force when a “reasonable officer” would do the same in a similar situation. This broad criterion has made it difficult to challenge an officer’s decision to shoot, especially if officers fear they could be killed.
In 2002, former Chandler officer Dan Lovelace was charged with second-degree murder for fatally shooting 35year-old Dawn Rae Nelson.
Lovelace had responded to a report that Nelson tried to fill a forged prescription at a pharmacy’s drive-thru window. When Nelson moved her vehicle forward, Lovelace ran to the driver’s side window and fired into the vehicle, killing her. Her 14-month-old son was in the back seat.
Lovelace claimed he feared Nelson would run him over. He was acquitted.
In Brailsford’s case, the defense successfully convinced the jury that Brailsford acted reasonably when he decided to shoot Shaver, who was on his knees, begging for his life. Brailsford had no idea that Shaver was unarmed and his split-second decision was based on fear for his own life and the lives of his fellow officers, the lawyer argued.
The acquittals, Chavis said, often come because police officers can fall back on a similar defense time and time again: “I was in reasonable fear of my life.”
Cynthia Lee, a criminal law professor at George Washington University, said jurors will often give officers the benefit of the doubt if they claim they feared for their life. Juries should also focus on a police officer’s actions, Lee said.
“Not only should the jury think about whether or not the officer’s belief was reasonable, but they should also be asked to assess whether the officer’s actions were reasonable,” she said.
Floyd’s death has spurred conversations about police shootings and race among the candidates for Maricopa County Attorney’s Office.
All the Democratic candidates say they would seek more public input or change how police shootings are reviewed in the County Attorney’s Office.
The lone Republican candidate said she would continue using the same panel of prosecutors but would hold officers accountable if she believes they committed a crime, just as she would any other person.
Current Maricopa County Attorney Allister Adel, a Republican tapped to run the office after Montgomery was appointed to the state Supreme Court, said she will hold officers accountable when there is evidence that demonstrates they should be criminally charged.