An Ongoing Parade of Police Violence

The country of late has been front-and-center witness to an ongoing parade of police violence, particularly against young black men. Since the August 2014 shooting of Michael Brown in Ferguson, Missouri, to Freddie Grey’s death in a Baltimore police van in April of this year, there has been a steady stream of fatal incidents involving the police and black men, for the most part, young men. And these are just the incidents that have made national headlines.

At the center of these violent endings to black lives lies the violation of a trust that we, the American public, have long chosen to place in the men and women that are charged with enforcing our laws. That trust entails only enforcing the law, does not include the power of judge, jury, and executioner as a small number of officers seem to think. It goes without saying that the job of police officers is a highly dangerous one, sometimes requiring split-second life or death decisions. Yet, almost all of the recent headline grabbing killings have resulted from circumstances in which there was no split second decision, there was an opportunity for a choice.

A notable example is the South Carolina killing of Walter Scott. The incident appeared on cell phone video almost as if it was some sort of demented police shooting range exercise. The officer fully assumed his proper shooting stance and placed multiple rounds in the victim’s back. Incredibly, the officer later stated he feared for his life. Only the revelation days later that a cell phone video of the killing existed convinced authorities to press charges against the officer after they had remained silent for days.

For very good reasons, we give police officers broad powers to carry out their duties. However, there are limits to these powers. Subject to some interpretation, the Constitution and other laws establish just how far police can go in trying to enforce the law. Over the past few years in a series of controversial police assaults and killings of unarmed victims – including Michael Brown, Tamir Rice, Eric Garner, and Freddie Gray – there have been some official actions taken largely due, it appears, to public pressure. Sometimes, even the public is strongly divided over some cases. But, by and large, most cases go un-prosecuted. It almost appears that there is an unwritten law against prosecution in most cases. Just what does it take for officers to face criminal charges? Only in rare cases do prosecutors and grand juries decide that the killing cannot be justified.

The Slim Chances for Prosecution

The Washington Post conducted a thorough analysis on this lack of prosecution in conjunction with Bowling Green State University. Their findings paint a disheartening picture of the reality of just how little justice is delivered in police shootings.

The newspaper’s analysis on the subject of police being charged in fatal shootings arrived at a rather amazing and depressing finding. The Post analysis found that, “Among the thousands of fatal shootings at the hands of police since 2005, only 54 officers have been charged. Most were cleared or acquitted in the cases that have been resolved.”

This analysis, based on a wide range of public records and interviews with law enforcement, judicial and other legal experts, sought to identify for the first time every officer who faced charges for such shootings since 2005. These represent a small fraction of the thousands of fatal police shootings that have occurred across the country in that time.

In an overwhelming majority of the cases where an officer was charged, the person killed was unarmed. But it usually took more than that.

When prosecutors pressed charges, The Post analysis found, there were typically other factors that made the case exceptional, including: a victim shot in the back, a video recording of the incident, incriminating testimony from other officers or allegations of a cover up.

“To charge an officer in a fatal shooting, it takes something so egregious, so over the top that it cannot be explained in any rational way,” said Philip M. Stinson, a criminologist at Bowling Green State University who studies arrests of police. “It also has to be a case that prosecutors are willing to hang their reputation on.”

And when they are convicted or plead guilty, they’ve tended to get little time behind bars, on average four years and sometimes only weeks. Jurors are very reluctant to punish police officers, tending to view them as guardians of order, according to prosecutors and defense lawyers.

Civil Rights Laws and Police Misconduct

When the many followers of high profile cases like that of Michael Brown fail to see justice from local police and the DA, they turn to the federal government and the Department of Justice for an investigation. Indeed, the victims of police misconduct may have recourse through federal laws. One primary purpose of the nation’s civil rights laws is to protect citizens from abuses by government, including police misconduct. Civil rights laws even allow attorney fees and compensatory and punitive damages as incentives for injured parties to enforce their rights.

A United States Code statute known as Section 1983 is the primary civil rights law victims of police misconduct rely upon. This law was originally passed as part of the Civil Rights Act of 1871, which was intended to curb oppressive conduct by government and private individuals participating in vigilante groups, such as the Ku Klux Klan. It is now called Section 1983 because that is where the law has been published, within Title 42, of the United States Code.

Section 1983 makes it unlawful for anyone acting under the authority of state law to deprive another person of his or her rights under the Constitution or federal law. The most common claims brought against police officers are false arrest (or false imprisonment), malicious prosecution, and use of excessive or unreasonable force.

These federal civil rights laws don’t however allow for the kind of criminal charges that people usually think of, like murder and manslaughter. Such laws concern civil rights violations which are difficult to prove, in part because the federal standards for intent to violate civil rights are so high. To obtain a conviction in the Michael Brown case, federal prosecutors would have to prove Brown was deprived of his constitutional rights — the right to life — because of his race. In the Brown case, they ultimately decided against filing charges for the killing and turned to investigation of racism in the local police department.

Despite the fact that federal action in these cases is infrequent and seldom effective when it is taken, there remains at least on very high profile cases in which the feds did have a hand in administering justice, albeit mostly unnoticed by the public.

The Rodney King Case

The videotaped beating of Rodney King in March of 1991 in Lake View Terrace in the far reaches of the San Fernando Valley, was a shocking display of police violence to almost all who saw it. The beating, with its kicks and its 56 baton swings, was shown over and over on television. It immediately became one of the most visible uses of force by police in this country’s history and put the issue of police brutality on the national agenda.

Within just over a year of the beating, a worldwide audience watched 6 days of rioting by thousands of people in Los Angeles, claiming 53 lives, causing countless injuries, and over one billion dollars in damage.

Four LAPD officers were ultimately charged in the beating and a closely watched trial ensued in April of 1992. After hearing seven weeks of detailed testimony and studying the 81-second amateur videotape of the beating, the jury concluded that the policemen, all of whom are white, had not broken any laws when they clubbed and kicked the mostly prone black motorist, Rodney G. King.

The jurors said it had taken only a day to reach their acquittals on the main charges against LAPD officers Stacey Koon, Laurence Powell, Theodore Briseno, and Timothy Wind. Jurors had after six more days of deliberation remained deadlocked on a charge against Powell of use of excessive force. Prosecutors said they would seek a new trial on that charge, but said later that they would reassess their plans.

The Justice Department had monitored the trial and the acquittals led to the federal government’s obtaining grand jury indictments for violations of King’s civil rights. The trial of the four in a federal district court ended on April 16, 1993, with two of the officers being found guilty and subsequently imprisoned. The other two were acquitted again.

The mixed results of the DOJ’s actions offered little satisfaction for many observers. Some justice was imposed but it was greatly tempered by the acquittal of two of the officers.

Where Do We Go From Here?

For many in this country, people of all races, gender, and age, have come to a turning point on the all too frequent occurrence of police violence towards those whom a small minority of officers feel they may freely apply whatever degree of force they deem necessary. We can and must turn to a path where the fundamental respect of all people is always exercised by those who elect to serve in law enforcement. Merely mandating police tactics and adopting body cameras won’t change what is really at the core of this violence.

All concerned members of our society — citizens, law enforcement officers at every level, and public officials — must steadfastly adhere to the idea that all people must receive respectful, humane treatment at the hands of police. Police, in particular, must not tolerate any behavior that violates this principle and be willing to expose the perpetrators when it happens. Prosecutors must be willing to take a clear eyed look at any transgressions and prosecute officers suspected of unwarranted violent behavior. Citizens must remain vigilant and calmly point to all incidents of police violence in their communities. If we can achieve this goal, we can end this ongoing national tragedy.

Daniel R. Perlman, Esq.

Law Offices of Daniel R. Perlman