Published on Portside (https://portside.org)
The Laws and Rules That Protect Police Who Kill
David A. Graham
Tuesday, December 29, 2015
The Atlantic
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 [1] 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 [2]. Finally, and
most gallingly to many observers, on Monday a grand jury in Cuyahoga
County decided not to indict [3] 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 [4]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 [5]: 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 [6]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 [7], 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 [8], 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 [9], “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 [10] 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 [11] 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.
Links:
[1] http://www.theatlantic.com/national/archive/2015/12/freddie-gray-william-porter-mistrial/420858/
[2] http://www.theatlantic.com/national/archive/2015/12/sandra-bland-texas-indictment/421599/
[3] http://www.theatlantic.com/national/archive/2015/12/tamir-rice-indictment/422049/
[4] http://www.theatlantic.com/national/archive/2015/12/the-fbis-plan-to-track-police-shootings/419574/
[5] http://www.theatlantic.com/politics/archive/2015/12/officer-porter-mistrial-police-culture/421656/
[6] http://www.theatlantic.com/national/archive/2015/07/how-many-sandra-blands-are-never-caught-on-video/399173/
[7] http://www.cleveland.com/metro/index.ssf/2014/12/cleveland_police_officer_who_s.html
[8] http://www.theatlantic.com/politics/archive/2015/11/report-vindicates-police-in-tamir-rices-death/415731/
[9] http://www.cnn.com/2015/12/28/us/tamir-rice-shooting/
[10] http://www.theatlantic.com/politics/archive/2015/06/tamir-rice-case-cleveland/395420/
[11] http://www.nbcnews.com/news/crime-courts/cleveland-officer-michael-brelo-found-not-guilty-car-hood-shooting-n363696
[2] http://www.theatlantic.com/national/archive/2015/12/sandra-bland-texas-indictment/421599/
[3] http://www.theatlantic.com/national/archive/2015/12/tamir-rice-indictment/422049/
[4] http://www.theatlantic.com/national/archive/2015/12/the-fbis-plan-to-track-police-shootings/419574/
[5] http://www.theatlantic.com/politics/archive/2015/12/officer-porter-mistrial-police-culture/421656/
[6] http://www.theatlantic.com/national/archive/2015/07/how-many-sandra-blands-are-never-caught-on-video/399173/
[7] http://www.cleveland.com/metro/index.ssf/2014/12/cleveland_police_officer_who_s.html
[8] http://www.theatlantic.com/politics/archive/2015/11/report-vindicates-police-in-tamir-rices-death/415731/
[9] http://www.cnn.com/2015/12/28/us/tamir-rice-shooting/
[10] http://www.theatlantic.com/politics/archive/2015/06/tamir-rice-case-cleveland/395420/
[11] http://www.nbcnews.com/news/crime-courts/cleveland-officer-michael-brelo-found-not-guilty-car-hood-shooting-n363696
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Donations can be sent
to the Baltimore Nonviolence Center, 325 E. 25th St., Baltimore, MD
21218. Ph: 410-366-1637; Email: mobuszewski [at] verizon.net. Go to http://baltimorenonviolencecenter.blogspot.com/
"The master class
has always declared the wars; the subject class has always fought the battles.
The master class has had all to gain and nothing to lose, while the subject
class has had nothing to gain and everything to lose--especially their
lives." Eugene Victor Debs
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