Eye on the Courts: Why So Few Police Officers Are Charged with Fatal Shooting

police-blueThe Washington Post this weekend in an analysis found that, of the thousands of fatal shootings by police since 2005, only 54 officers have been charged. Most of these were acquitted.

Writes the Washington Post, “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.”

For the majority of cases wherein the officer was charged, “the person killed was unarmed. But it usually took more than that.” In order for a charge to occur, there also needed to be “a victim shot in the back, a video recording of the incident, incriminating testimony from other officers or allegations of a coverup.”

“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 who studies arrests of police. “It also has to be a case that prosecutors are willing to hang their reputation on.”

But, even then, most are not convicted. And when they are, they have typically received less than four years. “Jurors are very reluctant to punish police officers, tending to view them as guardians of order, according to prosecutors and defense lawyers.”

The Post also explains the role of race, writing: “Identifying the exact role of race in fatal shootings and prosecutions is difficult. Often, prosecutors pursued charges against a backdrop of protests accusing police of racism. Race was also a factor in court when federal prosecutors stepped in and filed charges­ against officers for allegedly violating the victims’ civil rights. Six officers, all white, faced federal civil rights charges for killing blacks.”

The Post interviewed 20 prosecutors across the county who said that “race did not factor into their decisions to bring charges against officers. The prosecutors said they pursued cases­ based on the legal merits.”

But the Post talks to defense lawyer Doug Friesen, who represented a white officer convicted in 2013 for fatally shooting an unarmed black man. He said that “it would be naive” for prosecutors to say race isn’t a consideration.

“Anytime you have politicians that have to make charging decisions, realistically that is part of their decision-making process,” Mr. Friesen said. “They are asking themselves, ‘Is there going to be rioting out in the streets?’ ”

In three-quarters of the cases the Post reviewed, the race of the officer was white while the victim, in two-thirds of the cases, was black. “In none of the cases did a black officer fatally shoot a white person.”

“Most of the time, prosecutors don’t press charges against police — even if there are strong suspicions that an officer has committed a crime. Prosecutors interviewed for this report say it takes compelling proof that at the time of the shooting the victim posed no threat either to the officer or to bystanders,” they write.

They quote a former South Carolina prosecutor who basically says that the burden is: “Can the evidence disprove the officer’s story that he was defending himself or protecting the public?”

Mr. Hodge “recounted one case he had prosecuted in which a sheriff’s deputy said he had opened fire on an unarmed suspect who grabbed for his gun. The autopsy report, Hodge said, told a different story.”

“You don’t shoot someone in the back four times and then claim self-defense,” he said. “They can’t be going for a gun if they are running away.”

“In half the criminal cases­ identified by The Post and researchers at Bowling Green, prosecutors cited forensics and autopsy reports that showed this very thing: unarmed suspects who had been shot in the back.”

The Post added, “Not that long ago, police had wide latitude to shoot fleeing felons. But a 1985 Supreme Court decision changed that. In Tennessee v. Garner, the justices ruled that it was not justifiable for officers to shoot simply to prevent a suspect’s escape. The suspect had to pose a significant threat of death or serious harm to either law enforcement or innocent bystanders for the shooting to be legally justified.”

One-third of the cases had videos that showed “the slain suspects had posed no threat at the moment they were killed. The videos were often shot from cameras mounted on the dashboards of patrol cars, standard equipment for most police departments.” In one-quarter of the cases, “an officer’s colleagues turned on him, giving statements or testifying that the officer opened fire even though the suspect posed no danger at the time.”

Writes the Post, “Such testimony carries almost unequalled weight with judges and juries because police officers are considered highly credible eyewitnesses as well as experts in the proper use of force, according to prosecutors and defense attorneys. Moreover, because officers so rarely cross the ‘thin blue line’ to testify against a colleague, their evidence can be especially powerful.”

Walter Scott Death is Different

One might have noticed that Walter Scott’s case contained all of the elements identified by the Washington Post – it was captured on video, it showed the man unarmed, shot in the back as he fled, and the officer attempted to lie about critical details to cover it up.

Peter Moskos, a former Baltimore police officer who is an associate professor at John Jay College of Criminal Justice, writes in an op-ed this week, “Think Walter Scott’s death is ‘another Ferguson’? Cops don’t.” “Tis one is different” he writes.

He writes, “Walter Scott was killed — shot multiple times in the back — by North Charleston, S.C., police officer Michael Slager last weekend. Scott, already running away, was no threat to the officer when the first shot was fired. He was even less of a threat when Slager paused and fired the eighth and final round.”

To non-police, he says, “Scott’s death may look familiar.” However “to law enforcement officers observing the North Charleston tragedy, the case is nothing like ‘another Ferguson’ — and that’s where the police perspective and the civilian perspective on these events diverge.”

Mr. Moskos believes that “all credible evidence supported officer Darren Wilson’s account of a justified, legal and necessary shooting. Brown robbed a store, fought for the police officer’s gun and then physically charged the cop. In North Charleston last weekend, all Scott did was drive with a broken taillight and run from the cop who pulled him over.”

For him, “There’s a tremendous moral and legal difference between a person dying during an altercation with police and an officer willfully using lethal force. Policing can be bad and mistaken, both tactically and morally, and still not be criminal. Garner’s and Scott’s deaths were both tragedies, but only Scott’s was a crime.”

Mr. Moskos relates the words of a New York City officer who wrote to him to say, “This cop also just shot all of law enforcement in the back.”

He writes, “Too often, the public criticizes police for using any force at all or simply doing their job. Brown had robbed a store: Absolutely, he might fight an officer to avoid arrest. Sometimes people do fight cops, and sometimes cops need to fight for their lives. To police, Wilson’s account rang true.”

“Without the North Charleston video, most cops would have similarly given Slager the benefit of the doubt,” he continues. However it was not that Mr. Scott was unarmed, but that “Scott was running away.”

He writes, “Slager could have chased Scott or let him run away (worse things have happened). But instead, Slager drew his gun and shot. This is why cops see this case so differently: The criminal was the police officer. And Slager was arrested and charged with murder. That is the way the criminal justice system is supposed to work. (Slager was also fired immediately, which can happen only in states hostile to labor unions and civil-service protection.)”

Mr. Moskos continues, “What the deaths of Garner, Brown and Scott do have in common are individuals who didn’t want to go to jail and cops who wanted to take them there. So one logical way to reduce potentially deadly arrest situations — whether the deadly force involved is justifiable, questionable or criminal — is to stop criminalizing so many people. More productive than blaming police for enforcing existing laws would be to change and soften our laws in a way that does not jeopardize public safety.”

When Cops Cry Wolf

Frank Serpico (yes, that Frank Serpico) writes in Politico this past weekend, “Police have been setting up suspects with false testimony for decades. Is anyone going to believe them now when they tell the truth?”

Mr. Serpico was once a NYPD Detective before his whistleblowing on corruption forced him to retire very early. He calls it “testi-lying.”

He writes, “It has been a regular practice in police forces across the United States, at least since I served on the NYPD: official testimony that is made part of a police after-action report but is a pure lie, an invention. In the old days police would carry a ‘drop gun’ or a ‘drop knife’—an inexpensive weapon cops would bring along on patrol to drop onto or next to a suspect they had taken out so they could say he had threatened them. Today you don’t even need to do that; all you have to do to justify the use of deadly force if you are a police officer is to say that you feared for your life, for whatever reason. If the victim dies, that just means there will be one less witness around to contradict the testi-lie.”

Mr. Serpico observes that “he could have gotten away with simply declaring, as he did in his radioed report, that Walter Scott ‘took my Taser,’ and in the after-action report he would have said simply that he had felt threatened by Scott.” But he says that Mr. Slager “perhaps felt that he needed a little help explaining what he was up to. So he apparently dropped his Taser next to Scott’s body, which would obviously help to make the case that Scott ‘took my Taser.’”

Mr. Serpico argues that this case is not unique.

He reiterates his line he spoke more than 40 years ago before the Knapp Commission investigating corruption in the NYPD: “Unless we create an atmosphere where the crooked cop fears the honest cop, and not the other way around, the system will never change. Unless honesty is rewarded more often than corruption, the police will lose credibility altogether.”

Mr. Serpico continues, “In the era of citizen videotaping, police credibility is at stake as never before. If enough testi-lying is uncovered, then who is going to believe the police even when they are telling the truth? They will be seen as crying wolf.”

He argues that there is really only one solution: “The good cops really have to step up, and the system needs to reward them, rather than punish them.” Instead, “you habitually get police union representatives defending these police officers no matter what they do.”

Mr. Serpico cites the NYPD detective caught on camera abusing an Uber driver with threats and foul language. He writes, “This was truly disgusting behavior. Yet predictably enough the detective union leader, Michael Palladino, was out there making excuses for him, suggesting that, well, it was only one incident, and everyone has a bad day. “

“Cops are just like everyone else,” he said. The detective “is a person of good character. … He really should not be judged by one isolated incident.”

Mr. Serpico points out, “What Palladino overlooked was there there were numerous other incidents in that officer’s file that were not caught on tape.”

Mr. Serpico notes, “It’s important to make the point that we shouldn’t make cops feel that as a whole they’re under attack. There are plenty of legitimate incidents where police believe, correctly, that their lives are in danger. I was in a few of those situations myself during the course of my career.”

However, “unless the police forces and society as a whole take action we’re not going to be able to distinguish between the legitimate claims and the made-up testimony.”

So, taking three pieces in total we see a pattern here. The reason that police are not prosecuted more is that they are given the benefit of the doubt unless the incident is extremely clear cut and is usually caught on video, and police officers are willing to look the other way and defend all but the most egregious and indefensible conduct.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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25 Comments

  1. Frankly

    And Slager was arrested and charged with murder. That is the way the criminal justice system is supposed to work. (Slager was also fired immediately, which can happen only in states hostile to labor unions and civil-service protection.)”

    This is a good point and one that demands consideration.  Unionization in general results in a larger percentage of bad employees due to the difficulty for managers to fire rank and file employees.  We see it in the education system.  It is the same in law enforcement.  The difference is that a bad teacher destroys lives in a less violent way.

    Said another way… unions foment racism.

    1. hpierce

      “unions foment racism.”  Wow!  As someone who has/will never be a member of a ‘union’ (except, my marriage), that is an incredible (unbelievable) statement. And, drifting off-topic… not there yet, but drifting.

      1. Frankly

        Instead of reacting so emotionally to what was obviously a provocative statement, why not use that large and capable thinking apparatus and respond to the actual points made.

        If it is more difficult to fire a bad employee, there will naturally be more bad employees working.  And as the work culture develops acceptance of more bad employees, it would foment more bad performance in general.

        If that bad performance includes racism, then it would foment racism.

        Just think about it.  You are a lieutenant responsible for managing the patrol officers.  You know you have one or two that are bad… making off color and racist comments.  But these guys are smart and don’t break any of the hard rules that you could use to fire them.  These are the hard rules that the union demands as the bar for firing. So you just do your best to ignore them.  But these two bad employees infect the new recruits… causing them to note the behavior as apparently acceptable since the two more senior officers don’t get called out for it.  And eventually it would be you against the majority of your subordinates if you were to take any action.  So you just accept the bad and hope it does not lead to anything serious.

        Without the union protection you could more easily discipline and terminate these bad employees and prevent the degradation of the larger performance bar.

        1. Davis Progressive

          because the lesson i want you to start learning is that the more provocative your statement is, the less people will listen to your valid points.

          i think moskos and serpico make your point better than you do.  there are reasons why you would want a union rather than allow police officers to be at-will employees and fireable.  all you have to do is imagine the public pressure following an officer-involved shooting and that cop could be right and get fired.

          so your solution is not a good one from either the public perspective or the police perspective.  serpico doesn’t say no unions, he tells the unions to stop defending crappy decisions because in the end, defending those decisions undermines public trust which hurts them all.

        2. Frankly

          I disagree 100%.  Yours is an ideological self-serving perspective, but not based on the reality of employee performance management.

          Make it harder to discipline and fire and you get fewer cases of unfair management practices (although I think current labor law adequately protects employees these days) but you get more bad employees, more bad performance behavior and a work culture that accepts it.

        3. Davis Progressive

          i find it ironic, that you call it “ideological self-serving perspective,” when yours is not only an “ideological self-serving perspective,” not only a less nuanced position than mine, but also based on little practical experience as a union member in a public sector position.

          you’ll notice i’m not defending the union’s conduct here, i agree that police unions are part of the problem, but i think throwing out the unions will result in a lot of unintended consequences that you personally do not like.

          are you willing to get right of pobr?  are you willing to allow more public scrutiny on police officer’s by opening up their personnel files further than they are right now?  have you ever tried to get a pitchess motion?  do you know what you get access to in a pitchess motion?

          my guess is that you’re not willing to change any of this – you just want to slam the unions.

          so what i see is a bunch of self-serving ideology against unions but a far less than full understanding of what exactly gets protected?

        4. Frankly

          97% of working people are not represented by a union.  There is very good reason that is the case.  There are adequate employee protections within the labor code so good employees will not get fired.  Unions are useless these days except for their influence in politics.  Hence my point about ideological bias.  If I saw unions providing a net benefit I would support them.  I don’t have any ideological bias against labor.  I am part of labor.  I have always been part of labor since I was 10 years old.  I want what is best for the American worker, but not at the expense of the system.

          Of all the reasons that unions were once a good thing, none of them are valid any longer.  Now they are just a problem.

        5. Tia Will

          Frankly

          “So you just do your best to ignore them”

          Now why would you do that ?  Surely there are not only two options available to you, firing vs ignoring. Surely as a supervisor you have many venues through which you could address this issue. You could discuss the behaviors as unacceptable to the individuals directly. You could discuss their behaviors with their union representative. You could specifically address new recruits ( who would still be subject to dismissal) to inform them that although there are hard and fast rules the breaking of which will result in termination, there are “softer” but equally expected behaviors that they are expected to also adhere to.  I am not speaking from ignorance here. I am speaking from 10 years administrative experience dealing with both unionized and non unionized employees. This is simply not a fire or ignore situation that you have painted.

        6. Don Shor

          You know you have one or two that are bad… making off color and racist comments. But these guys are smart and don’t break any of the hard rules that you could use to fire them. These are the hard rules that the union demands as the bar for firing.

          Seems to me that the police officers in San Francisco are being fired (the chief has made that recommendation to the police commission), and the union is not objecting.

        7. Frankly

          Don – after this got out to the media the unions made a political decision to support the firing.  Had it been inside the police machine, the union would have fought to prevent the firing and the mangement of the police organization, knowing this, would be less likely to pusue it.

        8. Frankly

          Yup.  I don’t any problem with the media reporting facts as long as they don’t editorialize reporting.  But even though I might value a report of facts, I might still complain about the media bias in what stories and facts they report.  I also see that as editorializing.

        9. hpierce

          OK, Frankly, because you are, I call BS on your 97% non-union working folk as active workers.  (12:58 post). but I wouldn’t mind seeing that kind of number as I tend to despise unions, but not for the reasons you probably do.  Most, take big dues from members, pay their leadership the “big money”, etc.  Yet, some unions have protected folk from unsafe work practices, exploitive/unsafe working conditions.

          Yet to say that only 3% of the working population are represented by a “union”?  Not even in the private sector, much less true in the public sector that you like to trash.

        10. Frankly

          Oops.  Hpierce you are correct. Total union labor is 11.1 % of the total. I meant that public sector unioned labor is 3% of total non-unionized labor.

          So let me change my screed to say that 89.9% of all labor seems to be fine without union support.

          And your retort is?

          Note, I think unions were justified at one time.  Now they are just problematic.  Management science has advanced and so has labor code/law.  There is no need for unions… just add professional HR.

  2. Davis Progressive

    i understand the point that moskos makes when he argues that ferguson and north charleston are nothing alike, but he then writes: “Without the North Charleston video, most cops would have similarly given Slager the benefit of the doubt,”

    here’s the problem – we don’t have a video in ferguson.  to me the key question in ferguson is the kill-shot and none of the forensics really addressed the question of how far brown was from wilson when he fired the kill shot.  with a video, we would have more reliable account as the witnesses were either unreliable or self-interested, that includes wilson.  all the forensics does is present mr. wilson’s story as plausible and the police defenders jump all over that.

  3. Biddlin

    On April 2nd, in Tulsa, OK, 44 year-old Eric Harris was killed by 73 year-old reserve deputy Robert Bates, who claims he mistakenly fired his service weapon, thinking it was his stun-gun.

    On a police video, a deputy can be heard, “I need you to roll on your stomach.”  , “Stop fighting.”A shot rings out and Bates says,  “Oh, I shot him. I’m sorry.”

    As Mr. Harris screams, “He shot me. Oh, my God,” a deputy replies: “You f–ing ran. Shut the f– up.”

    When Mr. Harris says he’s losing his breath, a deputy replies, “F– your breath.”

    Harris was treated by medics at the scene and died in a Tulsa hospital.

    The family said in a statement that it was “saddened, shocked, confused and disturbed.”

    “Perhaps the most disturbing aspect of all of this is the inhumane and malicious treatment of Eric after he was shot,” the family wrote. “These deputies treated Eric as less than human. They treated Eric as if his life had no value.”

    That is what is wrong.

    Reserve deputies are generally volunteers, often with other full-time jobs. Bates is an insurance company executive assigned to a violent crimes task force. Reserve deputies have full powers and authority of a deputy while on duty, and are commonly assigned to such hazardous duties. An internal investigation concluded that Bates had been so engrossed in the stress of the moment that he did not think clearly about what he had in his hand.

    The district attorney’s office will decide whether or not to charge Bates.

    The fact that we can scarcely go a single day without learning of another questionable killing by police should sound the alarms, for intelligent folk.

    ;>)/

  4. Davis Progressive

    the other day, someone posted that we hadn’t heard the whole story yet… i guess they are correct:

    A North Charleston cop who appears to be Michael Slager can be heard laughing about the adrenaline he was feeling shortly after he killed Walter Scott. Slager has since been charged with murder and fired from the force.
    “By the time you get home, it would probably be a good idea to kind of jot down your thoughts on what happened,” another officer tells him. “You know, once the adrenaline quits pumping.”
    “It’s pumping,” Slager replies and then laughs.
    When asked by the British newspaper whether Slager was the person recorded laughing about the shooting, spokesman Thom Berry, with the South Carolina Law Enforcement Division, acknowledged “it appears that way” but cautioned “I have not been able to independently confirm.”
     

    Read more: http://www.businessinsider.com/audio-reveals-officer-describing-adrenaline-rush-in-aftermath-of-walter-scott-shooting-2015-4#ixzz3XE4OhiFr

     

  5. TrueBlueDevil

    The Left would do themselves some good to stop bringing up Ferguson, a losing case for them (like many).

    Serpico is decades removed.

    Statistics of officer-involved shootings then, and now, would be more helpful than his 5 decades old anecdotes.

    What happened to the undercover cops who helped terrorize and beat up a couple who tried to escape a motorcycle gang in New York a few years back?

     

  6. Davis Progressive

    “The Left would do themselves some good to stop bringing up Ferguson, a losing case for them (like many).”

    since i don’t really care about the politics of it, i’ll just argue what i believe.

  7. Miwok

    The Washington Post this weekend in an analysis found that, of the thousands of fatal shootings by police since 2005, only 54 officers have been charged.

    You almost lost me right there, as the “facts” just kept coming. Oddly enough I turned on the radio and Tom Sullivan was quoting FBI statistics where 52% of shootings were white, 31% black. He mentioned something under “thousands” = my lookup of 2014 data said 593, with about 400 “justifiable” (obviously a questionable number, but not “thousands”). I think his numbers were about that.

    This is almost like going to the Onion for my news, or the Daily Show.

    Does the Vanguard take every new source, this time the Washington Post, at face value? It reads more like the NY Post.

    When you say the FBI is not reporting as they should, I agree. When you say Police are not reporting as they should I agree. When you say the system rewards the wrong people, I agree. Argue that, great. Don’t quote trumped up political articles with exaggerated statistics. It just deflates your opinion.

  8. Tia Will

    Miwok

     my lookup of 2014 data said 593, with about 400 “justifiable” (obviously a questionable number, but not “thousands”).”  

    What you did not provide in this citation is over what amount of time. You merely stated that this was a lookup of data from 2014 with a total number of 593. From what you have provided, it is unclear to me how that is inconsistent with “in the thousands” if his numbers include a 10 year span. To me it seems like these numbers could be compatible.

  9. PhilColeman

    There has been a depiction or suggestion that police management is powerless, or at least impaired, from exercising its responsibility in enforcing policies and procedures. The reason given is that police unions possess such vast power that they intimidate (my word, my interpretation) attempts by management to due its required oversight and control.

    In terms of style, the story was beautifully told, and outwardly persuasive to anybody unaware of the police culture.

    I can only speak from a California perspective. Conceivably, this might be true somewhere else. But in California, I’ve never seen any police union have that level of power to where the police management responsibility is rendered ineffective. I will concede that in isolated cases, a particular weak police manager may use that “excuse” to not perform his/her duty. As an institution, however, such dereliction of duty is not condoned. I’ve never seen or heard any credible reports of this happening. BTW, the above weak manager is scorned at every level and rank in the department.

    Police unions quite possibly have less influence in California than some departments on the Atlantic Seaboard. In chatting with Big City department members of all ranks from back east, a strong union influence–inside a city government, and outside in the community–is strong. Nothing comparable exists in California from 35 years of professional observation as a practicing police supervisor, manager, and administrator.

     

  10. tribeUSA

    Yikes, heard on the news this eve another shooting of a black suspect by a white officer, who says he mistakenly grabbed his gun and instead of his taser (like the BART case).

    How about this hypothesis/speculation as to a reason why more suspects have been getting shot by the police lately: the demands for impeccable performance of our police officers have been getting stronger and stronger; where once moderate (and of course large) errors in judgement on the part of an arresting officer were reprimanded and corrective action sought; in recent times even small errors in judgement are called out and reprimands issued (particularly if the arrest involves a suspect who is a minority or another politically protected class). These demands put tremendous stress on officers, like all of us they are not perfect all of the time, and perhaps many of them are in pressure-cooker type environments. Then when a stressful arrest situation arises and the adrenalin starts to flow; all that pent up tension is released in a most inappropriate manner, and we get these incidents of egregious excessive use of force.

    Would be interested from Vanguard readers if this sounds like a reasonable explanation for some of the excess force incidents? I’m not trying to excuse the behavior, but to understand why this happens.

    In short, the perfect is the enemy of the good. I don’t know where the best balance lies; we certainly don’t want the cops to be in a pressure cooker environment where they are bound to blow their tops at some point, and perhaps one way we can help relieve this is not to demand perfection in all the little things; to just let minor cases of misjudgement go without official reprimand and focus on preventing the big mistakes from happening.

     

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