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. 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