10 Ways the System Is Rigged to Protect Cops Who Kill
December 7, 2014
Steven Rosenfeld / AlterNet & Faiza Patel / Al Jazeera America
As passions and protests flared on the streets of New York City following a Staten Island grand jury's decision Wednesday not to indict the white NYC police officer whose chokehold and rough arrest killed Eric Garner, an unarmed black man, a key question emerges: why is the justice system so biased against holding abusive officers accountable?
10 Ways the System Is Rigged to Protect Cops Who Kill
Steven Rosenfeld / AlterNet
(December 3, 2014) -- As passions and protests flared on the streets of New York City following a Staten Island grand jury's decision Wednesday not to indict the white NYC police officer whose chokehold and rough arrest killed Eric Garner, an unarmed black man, a key question emerges: why is the justice system so biased against holding abusive officers accountable?
The answer is both simple and complex. On the simple side, the system is substantially rigged in favor of letting officers off the hook for using excessive force in the line of duty -- especially if they say they needed to protect themselves. On the complex side are how the various stages of the process tilt toward covering up what abusive police have done, as well as biases built into the legal system that shield police from prosecution.
The evidence presented to the Staten Island grand jury has not yet been released. It soon may be, but what is so disturbing is that the incident was caught on video , allowing the public to watch a police squad act with impunity as they arrested Garner for the minor crime of selling cigarettes.
Let's walk though 10 ways the system is predisposed to let NYPD Officer Daniel Panteleo off the hook, just as Darren Wilson, the white Ferguson police officer who shot and killed another unarmed black man, Michael Brown, last week escaped charges by a local grand jury.
1. There is a double standard for charging citizens and police.
Everybody knows that police are authorized to use force in ways civilians are not. But if a civilian shoots a person outside his car window -- as was the case in Ferguson -- you can bet that shooter would be arrested, charged and have to defend his actions in court, David Rudovsky, a civil rights attorney and author on police misconduct told  Vox.com. But that is not the case when cops are the shooters, he said, because "police are investigating their own."
2. This inherent conflict of interest is all over the Garner case
If you watch the July 20 video by Tiasha Allen posted  on the New York Times website, you see Garner after he is placed on the sidewalk, face-down, hands tied behind his back. A dozen NYPD officers mill around and act as if nothing is unusual or wrong. Forget that this video shows a dying man's final hour, and that the NYC medical examiner concluded  the chokehold and leaving him on the sidewalk face-down killed him.
Look at the cops: this team of officers would include many likely witnesses called before the Staten Island grand jury. "It's often the police department that is charged with investigating a particular incident, deciding who's telling the truth, who used force first, and so on and so forth," Rudovsky said, explaining the first of many conflicts of interest.
3. Then comes the legal framework that protects cops
This is how the law is layered to protect rogue cops. It starts at the very top, as The Nation pointed out , because the standard in a 1985 U.S. Supreme Court ruling that tried to restrict when cops could use deadly force has been twisted by police to defend each other.
The court held that deadly force can be used when a police officer "has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others."
In 1989, the Court tried to be more specific by saying there had to be an immediate threat to their safety or to others. "But in actual courtroom practice, ‘objective reasonableness' [standard] has become nearly impossible to tell apart from the subjective snap judgments of panic-fueled police officers," the Nation said, explaining the loophole. "American courts universally defer to the law enforcement officer's own personal assessment of the threat at the time."
4. Recent Supreme Court decisions only make this worse
Recent rulings by the Roberts Court has tilted the balance further in favor of rogue cops. In one case where cops shot and killed a speeding driver and a passenger, they held that was not "excessive force" that would have violated the victims' constitutional rights. In another case, they sided with a prosecutor who withheld evidence and kept the wrong man on death row for 14 years.
These were just some examples of recent cases cited by Erwin Chemerinsky , dean of the School of Law at the University of California, Irvine, in a New York Times commentary. "How many more deaths and how many more riots will it take before the Supreme Court changes course?" he concluded, linking these cases to the Ferguson grand jury.
5. Rogue cops are more common than you think
If you look at the video  of Eric Garner's arrest and death on July 17, what you see are cops who consider their actions routine. If you look at the Twitter feed  for the National Police Misconduct Reporting Project, you will see a long line of misdeeds, some stupid and some savage. Police drive drunk and hit firetrucks and other cars; cops arrest teenage girls and force them to have sex; cops falsify search warrant requests. And many of these officers are not going to face criminal charges.
6. Cops cover up other cops' misdeeds, including killings
The week, the Wall Street Journal had an investigative report  that documented how hundreds of police killings are not reported to federal law enforcement agencies. This blue wall of impunity keeps a lid on police misconduct and prevents elected politicians from seeing the extent of the nationwide problem of excessive and abusive policing. It's a complete double standard, Jeffrey Fagan, a law professor at Columbia University, told the Journal. "When cops are killed, there is a very careful account and there's a national database," he said. "Why not the other side of the ledger?"
7. Then comes the grand jury process, with its biases
There's the frequent lack of independent witnesses, and a wall of silence from officers who "don't want to be a rat," AtlantaBlackStar.com reported , quoting Tim Lynch of the National Police Misconduct Newsfeed Daily Recap. Prosecutors are reluctant to go after cops, because they need to work with the same departments for their other cases. And local jurors are reluctant to indict local officers from the departments they might be forced to call if they are in a jam.
8. The result is police indictments are very rare
It would be incorrect to say that rogue police officers never get indicted. But as the investigative website fivethirtyeight.com reported , "Allegations of police misconduct rarely result in charges."
Between 2005 and 2011, there were 664 gun-related officer arrests, but only 31 were for murder and nonnegligent manslaughter when a cop was on duty. That's about four a year. In contrast, in 2010, about a quarter of the 6,613 misconduct complaints were for excessive force. The overall pattern here confirms that cops largely evade accountablity for abusive actions.
9. Ocasionally, a cop will face murder charges
It can happen, as was the case in the central Virginia town of Culpepper, where an officer lost it  when he confronted a driver in a school parking lot, got into an argument, and shot and killed the woman, saying she closed her car window on his arm and started to drive away.
In that case, the officer's mother, who worked at the police department, tried to destroy evidence. A special grand jury met for a month before deciding to press charges. He was suspended, charged with murder, and jailed while awaiting trial. But this case is an exception, according to the statistics and analysis  on fivethirtyeight.com.
10. The Eric Garner case is not closed, but the odds are long
On Wednesday, New York Sen. Kirsten Gillibrand asked  the Justice Department to open a civil rights investigation into Garner's death, saying the grand jury decision not to indict the NYPD officer who killed him was "shocking." U.S. Attorney General Eric Holder announced later in the day that the Department would do so, just as it has in Ferguson.
But with the entire incident filmed on video, allowing anyone to see what happened between the NYPD and Garner on July 17, it is impossible not to conclude that the justice system is institutionally biased in favor of abusive policing and officers using excessive and sometimes lethal force.
Whether or not Garner's killer will face any individual responsibility remains an open question. But as the public watches what unfolds in coming days in the case, you can be sure there will be little attention focused on reversing the institutional biases that protect rogue cops.
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America Needs a Policing Revolution
President Obama's new policing task force is a welcomed first step, but bolder change is needed
Faiza Patel / Al Jazeera America
(December 5, 2014) -- This week the White House launched a plan for fixing the broken relationship between law enforcement and minority communities. The move was a response to a spate of killings of black men by white police officers -- most notably the shooting of Michael Brown in Ferguson, Missouri, and the choking of Eric Garner on Staten Island in New York. Both deaths have triggered civil rights investigations by the Department of Justice.
The problem, as President Barack Obama and Attorney General Eric Holder have acknowledged, is a national one that extends well beyond the fates of those two men. But if the administration is serious about rebuilding the trust of minority communities in the legal system and police, its current proposals are not enough to help matters much.
Obama's plan calls for investing $263 million in community policing, of which $75 million will be used to encourage police to employ body cameras. These devices are in vogue as a way to create an objective record of police-citizen encounters and find a way through the tangle of conflicting accounts that inevitably accompanies volatile incidents. Pilot programs show cameras can both curb police misconduct and protect officers against false accusations of abuse.
Much depends, however, on how they are used. Can officers turn them on and off at will? How long will recordings, which may take place in the privacy of homes, be kept? Will recordings be used only for police misconduct cases or if they contain evidence of a crime, or will they provide a backdoor for surveillance and tracking? Who will make sure that police are complying with the rules?
Even if these difficult issues are resolved, the Garner case demonstrates that video recordings are no panacea. A video of his arrest recorded by a passerby shows him being put in a chokehold by a New York City Police Department officer, and the medical examiner ruled the death a homicide. But a Staten Island grand jury decided not to indict him -- symptomatic, many say, of a justice system biased against African-Americans.
The second plank of Obama's plan takes aim at the militarization of police forces but falls short of meaningful change. Over the summer, images of cops kitted out like commandos sitting atop Bearcat armored trucks in response to protests in Ferguson focused the country's attention on the militarization of police forces.
The White House's review of federal funding programs concluded that one program alone put 460,000 pieces of military equipment -- such as assault rifles and armored mine-resistant vehicles -- into the hands of police. Other programs provide federal dollars that can be used to buy equipment that local law enforcement deems necessary, with few constraints.
In the next months, Obama will take welcome steps to harmonize standards across funding programs and increase accountability. But the White House review avoids the fundamental question of whether police need military equipment in the first place and shies away from weighing the cost to community relations when cops look like commandos.
The White House established the Task Force on 21st Century Policing to provide an opportunity for developing a more comprehensive response than these single-issue fixes. It is charged with figuring out "how to promote effective crime reduction while building public trust," said a White House official, and reporting back in 90 days.
A central issue that the task force must tackle is one that is at the heart of the Brown and Garner killings: whether police react too aggressively to low-level offenses committed by men of color. Brown was stopped on suspicion of stealing a few cigars, Garner for selling loose cigarettes. This type of policing is common across America, sometimes under the rubric of the broken-windows theory, which promotes cracking down on minor infractions as a way to reduce more serious crime. Its effectiveness is hotly debated, but it has undoubtedly strained relations between law enforcement and minority communities, which feel unfairly targeted.
Nor should the task force confine itself to long-standing issues of racial discrimination. To be relevant for the 21st century, it must cover newer concerns as well. Local involvement in counterterrorism initiatives has damaged relations with American Muslim communities. And police now have access to a range of technology, from data generated by license plate readers and surveillance cameras to the body cameras in which the White House is putting so much faith. The usefulness of these innovations and their risks to civil liberties need attention.
At least the timing is right for the White House's initiative. The nation's attention is riveted on policing. And with crime at all-time lows and an emerging consensus on the need for criminal justice reform, a task force may be able to make headway.
Of course, there's no point in developing a blueprint for modern policing if it just sits on a shelf. Obama promises that this commission will be different because it has his backing. After all, the federal government exercises significant influence on local law enforcement through a variety of funding programs. The president should boldly use this leverage to ensure that the country learns the right lessons from the tragedies in Ferguson and New York.
Faiza Patel is co-director of the Liberty & National Security Program at the Brennan Center for Justice at NYU Law School. She focuses on U.S. counterterrorism policy, racial and religious profiling, human rights and humanitarian law, chemical weapons and international law.
The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera America's editorial policy.
Police Killings Reveal Chasms Between Races
John Eligon / The New York Times
FERGUSON, Mo. (December 5, 2014) -- In the decade that Ashley Bernaugh, who is white, has been with her black husband, her family in Indiana has been so smitten with him that she teases them that they love him more than her.
So Ms. Bernaugh was somewhat surprised by her family's reaction after Darren Wilson, a white police officer here, killed Michael Brown, an unarmed black teenager. Forced into more frank discussions about race with her family than ever before, Ms. Bernaugh, 29, said her relatives seemed more outraged by the demonstrations than the killing, which she saw as an injustice.
"They don't understand it's as prevalent as it is," Ms. Bernaugh said, referring to racial discrimination. "It's just disappointing to think that your family wants to pigeonhole a whole race of people, buy into the rhetoric that, 'Oh, these are violent protests.' "
It is as if Ms. Bernaugh, a nonprofit organizer living in the St. Louis suburb of Florissant, is straddling two worlds. In one, her black mother-in-law is patting her on the back, saying she is proud of her for speaking out against Mr. Brown's killing. In the other, her white family and friends are telling her to quiet down because "you don't know the whole picture."
Race has never been an easy topic of conversation in America. But the recent high-profile deaths of black people at the hands of police officers in Ferguson, New York, Cleveland and elsewhere -- and the nationwide protests those deaths spurred -- have exposed sharp differences about race relations among friends, co-workers, neighbors and even relatives in unexpected and often uncomfortable ways.
Put bluntly, many people say, they feel they are being forced to pick a team.
In interviews here and around the country, both blacks and whites described tense conversations in office cubicles or across dinner tables about the killings and subsequent protests. Many described being surprised to learn, often on social media, about the opinions -- and stereotypes -- held by family and friends about people of other races. In some cases, those relationships have fractured, in person and online.
Kenny Hargrove, a black man from Brooklyn married to a white woman, said he and his wife confronted one of his in-laws for posting a racially insensitive meme on Facebook around the time Mr. Brown was killed. The relative was so upset that she unfriended them. Now, she is trying to mend fences and has sent a new friend request. But Mr. Hargrove, 36, said he was torn about whether to hit "confirm."
"If I see one stupid thing from you, it's over forever," Mr. Hargrove said.
In fact, the day that a Staten Island grand jury declined to indict a police officer in the chokehold death of Eric Garner, Mr. Hargrove posted this to his Facebook page: "This is for anyone still left on my friends list who's wondering why black people are so angry right now. If you still don't get it, if you still can't see the pattern, if you still think the protests are nothing more than angry thugs who just want free TVs, let me know. I don't have the energy to connect the dots for you, but I do have just enough left to hit 'unfriend.' "
But Peter Weiss, a white resident of Staten Island, said many black people seem unwilling to consider alternative perspectives on police violence.
To illustrate his point, Mr. Weiss, 41, described an encounter on Wednesday at Karl's Klipper, a bar and restaurant in Staten Island, when news flashed on a television screen that the grand jury had decided not to indict. An African-American whom he was friendly with walked over and called him a redneck, Mr. Weiss said.
The acquaintance was normally calm, kind and sensitive, but the news had set him off, Mr. Weiss said. The exchange solidified his belief that people were reaching conclusions about current events based on past racism that, in his view, no longer exists.
"Blacks and whites, we don't hate anymore, there is no real racism anymore for anything real, like who can get a job," he said. "Honestly, people are so stuck on the past, people need to grow up."
Attitudes like that are why David Odom believes that race relations have deteriorated amid the recent police killings, and why he avoids talking to white people about sensitive racial topics. Blacks and whites come from different experiences, so reconciling their world views is too difficult, he said.
Mr. Odom, 50, a black lawyer living in the affluent, mostly white Chicago suburb of Naperville, recalled trying to explain to a close white friend why he thought the grand jury process in Mr. Brown's case was racist.
"He didn't believe it because, in his mind, he believed that the judicial system isn't rigged," Mr. Odom said. "He believed that the judicial system and the criminal justice system generally is fair, and I don't. There's a chasm between us."
A black infantry lieutenant in Texas said he is generally hawkish about foreign policy and conservative on the economy. So some of his white Army colleagues were surprised to hear his reaction to the non-indictment in the Garner case.
Several people came into his office the day it was announced and said, "Can you believe these idiots in New York protesting?" said the lieutenant, Christopher, who asked that his last name be withheld because he was not authorized to speak to the news media. His response, he said, was, "Can you believe these idiots didn't hand out an indictment?"
He got awkward looks in response. "A lot of people at work, they have no idea how to respond to me right now," he said.
Divisions over the killings are not simply black and white. They also run along generational, socioeconomic and geographical lines. Whites have joined blacks in street protests here and across the nation against police violence. And some blacks have joined whites in raising concerns about the behavior of blacks.
Still, in Ferguson, some whites said they felt like blacks had rushed to judgment in condemning them as bigots.
In Old Ferguson, where the police station is, a group of mostly black demonstrators marched down the street one recent, frigid evening, chanting angry slogans, and as they came upon Marley's Bar and Grill, a line of police officers quickly formed between them and the establishment.
The patrons inside were mostly white, and demonstrators stood outside yelling at them. When protesters peered in through a window and took pictures, some of the patrons pulled down a shade.
"We were told many times we were going to burn to the ground because we were white owners," said Kelly Braun, 48, who owns the corner bar with her husband. "They yell stuff at us."
Ms. Braun said her bar usually hosts a diverse crowd. But many black patrons have stayed away recently, dismayed over some of the actions on the street, she said.
"I've had so many apologies from different people -- it's because they're embarrassed," she said.
For some black business owners in Ferguson, the calculation about the protesters' demands and the community's well-being is a more complicated one.
Cathy Jenkins, who owns Cathy's Kitchen with her husband, has experienced the wrath of angry demonstrations -- someone threw a chair through one of her restaurant's windows the night the grand jury decision in the Brown case was announced. But she has also experienced racism: Someone has been calling the restaurant regularly and repeating the N-word when the phone is answered.
Not surprisingly, she was torn about the reaction, sometimes violent, to the Brown killing. "I don't want the community torn up, but I believe in standing up for your rights when it's something that's just," she said.
Montague Simmons expected resistance last month when he and 20 other people slipped into the election night party of the newly elected St. Louis County executive, Steve Stenger, to protest Mr. Stenger's support of Robert P. McCulloch, the prosecutor who many Brown supporters said mishandled the grand jury investigation of Mr. Wilson. But Mr. Simmons, a black union organizer, said he never thought the stiffest opposition would come from people he considered close allies.
As several demonstrators clustered to begin chanting, Mr. Simmons said, some white union members joined in trying to block them, while also identifying them to the police. These were the same white union members, Mr. Simmons said, whom he had worked with to advocate for things like raising the minimum wage and protecting collective bargaining rights.
"In any other setting, any other fight over the last two or three years, we'd be shoulder to shoulder," Mr. Simmons said. "When it comes to race, all of a sudden that's not the case."
Reporting was contributed by Nate Schweber and Mosi Secret from New York, and Manny Fernandez, Mitch Smith, Monica Davey and Campbell Robertson from Ferguson.
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