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10 Ways the System Is Rigged to Protect Cops Who Kill
By Steven Rosenfeld, December 3, 2014, AlterNet
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 Pantaleo 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 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 accountability for abusive actions.
9. Occasionally, 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.
[Steven Rosenfeld covers national political issues for AlterNet, including America's retirement crisis, democracy and voting rights, and campaigns and elections. He is the author of "Count My Vote: A Citizen's Guide to Voting" (AlterNet Books, 2008).]
The American Justice System Is Not Broken
By Albert Burneko, December 3, 2014, Deadspin
In July, New York police officer Daniel Pantaleo choked unarmed black man Eric Garner to death, in broad daylight, while a bystander caught it on video. That is what American police do. Yesterday, despite the video, despite an NYPD prohibition of exactly the sort of chokehold Pantaleo used, and despite the New York City medical examiner ruling the death a homicide, a Staten Island grand jury declined even to indict Pantaleo. That is what American grand juries do.
In August, Ferguson, Mo., police officer Darren Wilson shot unarmed black teenager Michael Brown to death in broad daylight. That is what American police do. Ten days ago, despite multiple eyewitness accounts and his own face contradicting Wilson’s narrative of events, a grand jury declined to indict Wilson. That is what American grand juries do.
In November 2006, a group of five New York police officers shot unarmed black man Sean Bell to death in the early morning hours of his wedding day. That is what American police do. In April 2008, despite multiple eyewitness accounts contradicting the officers’ accounts of the incident, Justice Arthur J. Cooperman acquitted the officers of all charges, including reckless endangerment. That is what American judges do.
In February of 1999, four plainclothes New York police officers shot unarmed black man Amadou Diallo to death outside of his home. That is what American police do. A year later, an Albany jury acquitted the officers of all charges, including reckless endangerment. That is what American juries do.
In November of 1951, Willis McCall, the sheriff of Lake County, Fla., shot and killed Sam Shepherd, an unarmed and handcuffed black man in his custody. That is what American police do. Despite both a living witness and forensic evidence which contradicted his version of events, a coroner’s inquest ruled that McCall had acted within the line of duty, and Judge Thomas Futch declined to convene a grand jury at all.
The American justice system is not broken. This is what the American justice system does. This is what America does.
The Atlantic‘s Ta-Nehisi Coates has written damningly of the American preference for viewing our society’s crimes as aberrations-betrayals of some deeper, truer virtue, or departures from some righteous intended path. This is a convenient mythology. If the institutions of white American power taking black lives and then exonerating themselves for it is understood as a failure to live out some more authentic American idea, rather than as the expression of that American idea, then your and my and our lives and lifestyles are distinct from those failures. We can stand over here, and shake our heads at the failures over there, and then return to the familiar business, and everything is OK. Likewise, if the individual police officers who take black lives are just some bad cops doing police work badly, and not good cops doing precisely what America has hired and trained them to do, then white Americans may continue calling the police when black people frighten us, free from moral responsibility for the whole range of possible outcomes.
The murders of Michael Brown, Eric Garner, Sean Bell, Amadou Diallo, Sam Shepherd, and countless thousands of others at the hands of American law enforcement are not aberrations, or betrayals, or departures. The acquittals of their killers are not mistakes. There is no virtuous innermost America, sullied or besmirched or shaded by these murders. This is America. It is not broken. It is doing what it does.
America is a serial brutalizer of black and brown people. Brutalizing them is what it does. It does other things, too, yes, but brutalizing black and brown people is what it has done the most, and with the most zeal, and for the longest. The best argument you can make on behalf of the various systems and infrastructures the country uses against its black and brown citizens-the physical design of its cities, the methods it uses to allocate placement in elite institutions, the way it trains its police to treat citizens like enemy soldiers-might actually just be that they’re more restrained than those used against black and brown people abroad. America employs the enforcers of its power to beat, kill, and terrorize, deploys its judiciary to say that that’s OK, and has done this more times than anyone can hope to count. This is not a flaw in the design; this is the design.
Policing in America is not broken. The judicial system is not broken. American society is not broken. All are functioning perfectly, doing exactly what they have done since before some of this nation’s most prosperous slave-murdering robber-barons came together to consecrate into statehood the mechanisms of their barbarism. Democracy functions. Politicians, deriving their legitimacy from the public, have discerned the will of the people and used it to design and enact policies that carry it out, among them those that govern the allowable levels of violence which state can visit upon citizen. Taken together with the myriad other indignities, thefts, and cruelties it visits upon black and brown people, and the work common white Americans do on its behalf by telling themselves bald fictions of some deep and true America of apple pies, Jesus, and people being neighborly to each other and betrayed by those few and nonrepresentative bad apples with their isolated acts of meanness, the public will demands and enables a whirring and efficient machine that does what it does for the benefit of those who own it. It processes black and brown bodies into white power.
That is what America does. It is not broken. That is exactly what is wrong with it.
[Albert Burneko is a columnist at Deadspin.
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