Commentary: One Pound of Flesh Is Not the Answer to Cure Policing

Stephen Maturen/Getty Images

By David M. Greenwald

As the defense wraps up in the Derek Chauvin trial and the news emerges first about Daunte Wright and now about young Adam Toledo, we return to the vexing problem of how do we police the police.

While things like body-worn cameras are helpful, it is also worth noting that those tools have not succeeded in preventing police misconduct—in part because we are still stuck in the same place as before, namely what is the mechanism for holding them accountable?

Right now, police officers face firing or, in the case of Kim Potter who killed Daunte Wright, she resigned.  There are lawsuits, but because of qualified immunity, police officers generally cannot be held personally civilly liable for their actions.  New Mexico this week became the second state to do away with qualified immunity, but the Supreme Court has thus far not taken it up.

That has left criminal proceedings.  But there are two problems with criminal proceedings.  First, the state laws, with few exceptions, give police officers broad discretion on the use of even deadly force.  And for the most part, jurors have given officers the benefit of the doubt.  There are some notable exceptions, but those are rare.

Even in the case of Laquan McDonald, Jason Van Dyke, convicted of second degree murder which in California would be an automatic 15 to life, was given just seven years in Illinois.

In the Daunte Wright case, it has been interesting reading the comments.  While not everyone buys into the notion that mistaking a gun for a taser was legitimate, for the most we will accept her version of events.

It is important to understand the difference between an accident and negligence.  If you are carefully walking down the street and slip on a piece of ice and fall, that’s a clear accident.  On the other hand, if you are running down the sidewalk under hazardous conditions and fall, that’s negligence.

Under the law, there are various forms of murders and while, under Minnesota law, first or second degree murder involves an intentional act, there is a reason why they have second degree manslaughter, also known as involuntary manslaughter.

“This charge covers situations where a person’s negligence created an unreasonable risk or where a person consciously took a chance resulting in the death of a person. If convicted, you can face up to 10 years in prison and not more than a $20,000 fine.”

Officers are trained to put a taser and their service weapon on opposite sides, among other things, in order to avoid the mistake made.  Moreover, grabbing a weapon and firing without knowing which one they are firing is, in fact, negligence.  Furthermore, this wasn’t harmless error.  Someone died.

From the standpoint of the law, therefore, this seems to fit the legal definition of negligent homicide or second degree manslaughter (manslaughter is a specific form of homicide).  The prosecution will have to prove beyond a reasonable doubt that she acted negligently and the defense will have an opportunity to put on an affirmative defense.

Someone asked how long she deserved to go to prison for this action.  It’s a fair question.

But, increasingly, I do not support the notion that prison is an appropriate punishment for people unless there is a clear danger to society.  There is a caveat to this notion, because embedded within the notion of danger to society is a whole bunch of unconscious and conscious racial bias that we would have to work through to get to a workable system.

Nevertheless, I think locking people in a cage is antiquated except for those in society who represent a true danger—there are some, but they are the exception rather than the rule.

Creating a true system of rehabilitation.  Job training.  Education.  Mental health treatment.  Drug treatment.  We spend $85,000 a year to lock someone in a cage and we have a recidivism rate that sees nearly two-thirds of them released only to commit another offense.  Why not spend that money affirmatively?

But in the case of Kim Potter, the answer here seems to be something along the lines of a restorative process.  I have been involved in one such process and they can be very powerful.

Instead of having her on trial, where she and her attorneys attempt to minimize her responsibility and defend her, imagine Potter sitting around the table with Daunte Wright’s family and having a discussion where she has to listen to the harm her decision caused and, at the same time, she can express the harm that she has suffered.

At the end of the discussion or series of discussions, the participants can outline the harms suffered and come to an agreement about what can be done.

I see this as an opportunity.  Kim Potter could become—if she wanted to—an agent for change.  She could go around and talk about her experience.

I am reminded of another situation, the case of Ronald Cotton and Jennifer Thompson.  Thompson was brutally raped as a young woman.  She ultimately identified Ronald Cotton as her perpetrator.  She was certain she was right—but it turned out she misidentified Cotton as her rapist.

Cotton spent 10 years in prison for a crime he didn’t do before being exonerated.

The amazing thing about their story is that they ended up meeting, Cotton forgave Thompson and they now go around the country talking about the danger of wrongful convictions and eyewitness misidentification, from the vantage points of a victim of a crime and the victim of a wrongful conviction.  It’s a powerful story and it’s difficult to leave their talk with a dry eye.

Imagine if, instead of trying to find new ways to extract a pound of flesh, we empower people—victims and perpetrators—to become the agent of change themselves.

There are all sorts of opportunities here that can be born from horrible tragedies.

—David M. Greenwald reporting


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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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24 Comments

  1. Bill Marshall

     for the most we will accept her version of events.

    Who is WE?  ‘Royal form’?

    You, 180 degrees opposite of me, in this… are you buying into her lie because she is a woman?

    Chauvin is more credible, but he is not, at all…

    Have you even ever handled a handgun?

    1. Keith Olsen

      If one watches the video with an open mind I don’t feel they can come away with any other conclusion than Officer Potter thought when she pulled the trigger that she was firing a taser gun.

      Take Tiger Woods.  An investigation into his recent crash revealed that the computer chip in his car showed that Tiger had pressed the accelerator by accident instead of the brakes.  Now I’ve got to believe that Tiger knows the difference between the two but he panicked and hit the wrong pedal.

    2. Tia Will

      Have you even ever handled a handgun?”

      I have never handled a handgun. But I understand taking full responsibility for what is in your hand during crisis situations. During emergency cesareans, it is common for instruments to be left within the surgeon’s reach instead of being handed to them one by one. It is incumbent on the surgeon, no matter how much urgency they are experiencing, to make sure they are holding the right instrument. For example the clamp instead of the knife. They are different in appearance and feel. Making sure you are holding the clamp and not the knife can make the difference between saving a life, and killing the patient. To act with the wrong one in hand is clearly negligence, even if you mean no harm.

        1. Tia Will

          No. Wrong-site surgery is a different issue from using the wrong instrument. The marking pen is to ensure the procedure is being done in the right location before the procedure is ever started.

          Looking at your hand and what is in it every single time you have laid your instrument down and picked it or another up again is critical for not confusing your scalpel for your clamp or retractor. This has to become automatic in the OR, and should be automatic for police as well.

    1. Tia Will

      Chris,

      This is a very interesting comment. Why would either of you want to “fight liberals” as opposed to presenting us with information or your perspective?

       

  2. Edgar Wai

    You are assuming that experience makes it impossible to make error.  But that assumption is why experienced people do make errors.

    In the case of grabbing the wrong weapon, one person making a cognitive error (blinded by their experience) can cause fatality.  That is sub-standard in term of safety design, which would normally require at least 2 people independently checking.

    For example, the protocol could be that if a partner is on scene and conscious, the one holding the taser needs confirmation before she is allowed to fire a weapon.

    Officer A: draws weapon and says “Taser drawn”

    Officer B: visually confirms that A is holding a Taser, and says “Taser confirmed”

    Then for an officer to fire the wrong weapon, it takes two conscious people to make cognitive errors instead of just one.

    1. Keith Olsen

      Officer A: draws weapon and says “Taser drawn”
      Officer B: visually confirms that A is holding a Taser, and says “Taser confirmed”

      Criminal shoots and kills Officer A and B while the two officers are confirming Officer A’s weapon.

      1. Bill Marshall

        Potentially true… but in the case at hand, the precedent incident, there is clearly enough time to do what Edgar suggests…

        If I was the ‘bad guy’, thinking that the officer was aiming a taser at me, while I was ready to use a gun, I’d shoot the officer… old expression:  “don’t bring a knife to a gunfight”…

      2. Edgar Wai

        I think this protocol applies to situation when the officer has upper hand.

        If the situation calls for a pistol then there is no need to do this check.  But the officer should say why the weapon is drawn and why he fired so that the reason can be recalled on body camera.

        An officer that is consicious should know why they did they.  If they don’t record the rationale, they leave more opportunity for lying.

        They could record that while firing or after firing as soon as they could catch a breath.

        The record on the reason of why guns are drawn when they were just approaching confirms to dispatch whether they understood/misumdetstood the situation.

  3. Ron Oertel

    Not sure if the conclusions are supported, but a surprisingly reasonable article.

    However, probably should refer to David’s earlier acknowledgement, regarding the relatively small number of people killed by police under controversial circumstances.

    And compare that to the vast number of people assaulted and/or killed by non-police.

    That’s the problem that society is up against, and is the reason for police and the justice system.  I doubt that the underlying reasons for that will ever be addressed.

    And when race gets thrown into the mix, it further complicates the effort.

  4. Tia Will

    And compare that to the vast number of people assaulted and/or killed by non-police.”

    I do not feel this is ever a valid comparison. These are two different problems with different underlying causes. It is like saying ignoring diabetes is justified because more people are killed by cardiovascular disease. While the statement is true, it ignores the fact that both are significant problems and both should be addressed.

    I guess it would come as no surprise to anyone that I agree with David’s argument against incarceration while demanding some form of accountability ( restorative justice/ community service…) as atonement for one’s wrongful act, whether deliberate or not.

    1. Ron Oertel

      I do not feel this is ever a valid comparison. These are two different problems with different underlying causes. 

      There’s one way to test that theory.

      Get rid of the police, and release all of the people in prisons.

      Then see if assaults, murders, and other crimes goes up. If not, then you’ll know that all of the police killings (which occurred as part of that process) were for naught.

      But if so, then the evidence would point to that system preventing further crime. And a connection between the two statistics.

    2. David Greenwald

      You’re viewing the options here as binary.  What Tia and I are talking about is moving away from incarceration while still having components of accountability.  And I’m not suggesting that we do away from incarceration – some people no doubt need to be incarcerated but I am convinced that that number is far smaller than the number we currently have incarcerated.

      1. Ron Oertel

        Seems to me that a binary option was being presented by Tia.

        Your theory could be right.  But (in my opinion), not without some other drastic changes in high-crime areas. So far, the primary message seems to be to simply release people from prison, and stop arresting them in the first place.

        1. David Greenwald

          Not if we implement programs in their place. Think about it – we spend as much money to incarcerate for one year as someone does to attend Harvard, it seems to me there are better uses for that money than locking most people in cages.

        2. Ron Oertel

          I don’t fully trust those numbers.

          Regardless – public investment will probably not occur in a manner which resolves the problems to a significant degree. This type of discussion has been occurring for decades.

          I do think that the “correctional system” itself could be vastly improved, in terms of incentivizing prisoners to help themselves (and society). And to prepare for their release, as appropriate.

          On a somewhat more hopeful note, it does seem that society at large is becoming more integrated.

          “Just my humble opinion”, to quote someone else on here.  🙂

    3. Edgar Wai

      Tia’s comparison is less valid than Ron’s.

      The relationship between the police using force against a suspect and a suspect, is that the suspect could be about to harm someone.  If the police doesn’t act, someone could get hurt. If the police acts, someone WILL get hurt, but the bet is on the injury is done to stop even bigger injury.

      The question was on if something goes wrong, how much could you blame the officer for trying to do something good, versus how much you could blame the violator for creating an unnecessary situation to begin with?

      Tia’s comparison completely desregarded such relationship, it wasn’t even close.

      A closer comparison should be a surgeon operating on a wounded civilian from a terrorist attack. The surgeon needs to cut the victim and apply drugs, there could be complication. The surgeon is operating under stress and if the surgeon’s hand slipped or made a genuine error, killing the victim, how much blame do you place on the surgeon versus the terrorist who caused the mass casualty to begin with?

  5. Tia Will

    Ron,

    I place a lot of blame on the surgeon that does not look to see what instrument she is holding before applying it. This is simply part of being a competent surgeon. As an OB/Gyn, I frequently operated under extreme stress knowing moving too slowly could cost two lives. I never once failed to check what instrument I was holding before using it. That is what we are trained to do. We are also trained to double-check if the scrub tech is handing us instruments. The protocol is for the surgeon to request the instrument they want by name. The tech then puts the instrument in their hand saying its name. You look at your hand to be sure and only then do you use it. To not follow these protocols is to put the patient’s life at risk.  This amounts to negligence. To not be just as certain, for a police officer is to endanger the suspect, and also others in the vicinity as Duante’s loss of control of his car and collision with another demonstrate.

    I also want to clarify another point. I am not proposing a binary solution. I am well aware there are individuals too dangerous not to be confined. But many people we choose to keep incarcerated are not at all dangerous. For those, I do not believe incarceration is either needed nor the most cost-effective solution.  As always, I believe prevention is the most cost-effective approach. Incarceration is not a good means of prevention except in the cases of the actually dangerous individual.

    1. Edgar Wai

      As an OB/Gyn, I frequently operated under extreme stress knowing moving too slowly could cost two lives.

      Since those lives do not include that of the surgeon and the assistants, if you call that extreme stress, the stress for police work would just be even higher.

      You said in a surgery there is an assistant handing the tool. That is a dual check mechanism.  For some reason police protocol does not have that.

      Unless you can show that such dual check can be implemented in police protocol, due to the higher stress of the work environment, you have to conclude that a shooting error by the police should be held less accountable to a medical error by a surgeon.

      Those are two separate factors that the law should be more lenient to the police than to surgeons:

      1) more stressful (hostile) situation.

      2) lack of existing dual check protocol.

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