Police defenders will undoubtedly say “I told you so,” in arguing that the prosecutor overreached in charging the officers with manslaughter, but the hung jury this week in the Freddie Gray case may not be as cut and dried as people want to think.
Slate has an outstanding analysis of the verdict that puts the heart of the problem at the concept of “reasonable officer standard.”
Leon Neyfakh, staff writer at Slate, writes, “The judge overseeing the trial told jurors on Monday that in order to find Porter guilty of involuntary manslaughter, the most serious of the four crimes Porter was charged with, they would have to determine that the officer’s conduct on the day Freddie Gray was fatally injured reflected a ‘reckless or wanton disregard for human life,’ and was a ‘gross departure’ from what a ‘reasonable police officer’ would have done in a similar situation.”
The problem, as Mr. Neyfakh puts it, is what exactly is a reasonable police officer and how a jury is supposed to correlate the defendant’s conduct with what a reasonable officer may or may not have done under hypothetical circumstances.
Or, as critic Radley Balko put it in his Washington Post column, “Depending on how you view police culture, the ‘reasonable police officer’ standard could be quite a bit lower than the ‘reasonable person’ standard.”
The Supreme Court, in Graham v. Connor, made the determination that an objective reasonableness standard would apply to claims that officers used excessive force in making an arrest, an investigator stop or a seizure of a person. Graham held that determining the “reasonableness” of a seizure “requires a careful balancing of the nature and quality of the intrusion on the individual . . . against the countervailing governmental interests at stake.”
The key is how “reasonableness” is defined.
In this case, writes Mr. Neyfakh, “The prosecution stressed the police department’s clear and well-publicized rules, laid out in official emails and training booklets, on when to call for medical attention and when to use seatbelts on detainees. A reasonable police officer would have followed those rules, the prosecution argued, and the fact that Porter didn’t do so characterized him as a callous and careless officer. He acted unreasonably, in other words, by flouting the rules set forth by his department.”
He continues, “Lawyers and witnesses for the defense had a different message for the jury: Official department policy doesn’t matter in Baltimore, they suggested, because no one at BPD really knows it by heart or follows it to the letter. Witnesses—including several current BPD officers—testified that a number of rules that exist on paper are, in practice, routinely ignored in the department. Much more important than official rules, according to captain Justin Reynolds, is common sense, which ‘prevails over everything else’ in the BPD, he said—including general orders that it doesn’t always make sense to follow. Mark Gladhill, one of Porter’s fellow officers, testified that the seatbelt rule had traditionally been one of these formal directives that weren’t followed. Having participated in some 75 arrests in his time on the force, Gladhill said, he couldn’t remember once seeing a detainee buckled while being transported in a police van.”
That the defendant failed to seatbelt Freddie Gray, the defense argued, “didn’t make him a criminal, was the point of this testimony—it made him normal.” As the defendant’s attorney put it in his opening statement, “Officer Porter didn’t even know there was a rule. You can’t hold him accountable for what nobody did.”
As the Baltimore Sun’s Ian Duncan wrote in an his analysis, the defense “portrayed a dysfunctional police department that rushes officers to the streets without proper training, forcing them to learn as they go and follow the advice of veterans rather than standards and rules.”
Mr. Neyfakh added, “In a department where officers are guided in their actions by personal discretion and social norms rather than the rules they learned in the police academy, the defense argued, Porter could not be held criminally responsible for following the example of his peers and superiors.”
As he puts it, “This is a somewhat frightening notion, suggesting as it does that ‘other people were doing it’ is a plausible defense of misconduct. While it may be true that ‘everyone’ in the BPD routinely violates policies designed to keep the people in their custody safe, that doesn’t mean that doing so is reasonable, or acceptable.”
“The … standard is ‘what a reasonable officer would do,’ not ‘what a reasonable police officer with the Baltimore Police Department would do,’ ” said Jeffrey Noble, who served as the deputy police chief in Irvine, California, and who testifies frequently in cases involving police use of force. “If you have an agency that’s behaving poorly across the board, you can’t say, ‘We all act badly in this department, therefore what we do is OK.’ ”
As Mr. Balko put it, “There is a very obvious problem with this line of thought. An acquittal on these grounds basically tells cops that they can ignore the rules, so long as everyone else is ignoring them.”
But Mr. Balko sees a more “pernicious possible consequence.” For the most part, he explains, “the Supreme Court doesn’t determine police policies and guidelines, it only sets limits on what the police can do.”
He notes that “this is an entirely new challenge, and one that may not have a solution. The Supreme Court has long been deferential to police officers, refusing to second guess their motives, and in many contexts giving them passes for ‘honest mistakes.’”
Here the defense shifts the standard, saying that “the reasonable in the reasonable police officer standard should be defined by the culture of policing — even a really localized culture — and not by the rest of us. It’s asking that juries assume ‘typical’ and ‘reason’ have the same definition.”
This, he says, “is a really dangerous idea. It’s basically an invitation to let policing be governed by and ultimately only accountable to cop culture. It risks giving destructive policing traditions like the ‘blue wall of silence’ or ‘street justice’ the force of law. Worse, it basically puts police officers above the law — or at least more above the law than they already are.”
That danger aside, for us, the bigger problem is that enough of the jurors bought into it to hang the jury. Of course, the prosecution gets another bite as this apple and it is clear that they will have to attack this theory head on.
—David M. Greenwald reporting