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Why It's So Hard To Hold Police Accountable For Excessive Force

Protesters gather on the steps of the Old Courthouse in downtown St. Louis on Wednesday, November 26, 2014.
Camille Phillips | St. Louis Public Radio

First of two parts.

Two grand juries in two very different cases have refused to indict white police officers for the deaths of two black men. As a result, many people are wondering if it's possible to hold police officers accountable for use of deadly force.

State and federal laws could be reformed to make it easier to punish police officers who misuse deadly force, but legal experts say those changes would face political hurdles and an unfriendly U.S. Supreme Court. 

More effective, many legal and policing experts say, would be better police training, more attention to police-community relations and federal pressure on local departments to reform their practices.

Critics of the current system say the two recent cases demonstrate the inadequacy of the law to address what they consider to be unjust police actions. Grand juries decided not to indict police officers in the deaths of Michael Brown in Ferguson and Eric Garner in New York. 

But even if the laws were changed, the officers involved would have a good chance of avoiding prosecution, legal experts say. That's because laws permit the use of deadly force if an officer feels threatened, as Ferguson police officer Darren Wilson said he did, or when a suspect is resisting arrest, as New York police officer Daniel Pantaleo claimed in the Garner case.

“Police training can be huge,” said David Klinger, a former police officer and a criminology professor at the University of Missouri-St. Louis. Klinger doesn’t want new federal laws criminalizing specific police conduct, but he does want better training that could de-escalate confrontations and avoid force.

“People aren't looking at the critical moment when Officer Wilson decided to back up and confront Brown,” he said in an interview. “That put him at a tactical disadvantage."

Instead, when Wilson noticed Brown was a likely suspect in a convenience store robbery, Wilson should have driven off. He should have called for backup and then confronted Brown when the backup arrived, said Klinger.

The same advice applies to the recent Cleveland police shooting death of a 12 year old with a replica gun, he said. “On the video you see the police car flying into the scene and coming up close, eight to 12 feet. At that point, if the kid shows the gun, the officers have no choice but to shoot. But if they followed appropriate procedure and kept a tactical distance, say 30 feet and behind a tree to talk it out,” then officers could have avoided the shooting.

The Cleveland officers weren’t guilty of a crime, said Klinger, but they should be held accountable for not following procedures.

Limits to legal reform

Legal experts point out that there are constitutional, political and common sense limits to legal reform of police violence.

  1. Not every questionable police act is a crime or can be made into one.Training and professional standards can impose a much higher bar for police conduct than can the criminal code.
  2. The benefit of doubt goes to the police in a close situation. The U.S. Supreme Court has emphasized that it does not want to second-guess difficult, split-second decisions by officers. Nor are prosecutors, judges, juries or grand juries likely to second-guess in close cases.
  3. A police officer must be on notice as to what actions are criminal. The U.S. Supreme Court has emphasized the requirement that a law be clear enough that a police officer doesn’t have to guess if he or she is acting illegally.
  4. Constitutional limits restrict the reach of some laws on police misconduct. The court has imposed a high burden of proof on the federal criminal civil rights law used to prosecute police. The court also protects municipal police departments from lawsuits where renegade officers violate department policy. The court provides individual officers with qualified immunity from civil suits, which means an officer can’t be required to pay damages unless he violated a civil right that is well-established in the law.
  5. Police, unlike civilians, are authorized to use force – sometimes deadly force – to make arrests, and they have no obligation to retreat.Because of the special role that police officers perform on behalf of society, they are given extra authority to use force.

Should police have greater power than civilians?

A common refrain from Ferguson protesters has been that police should not have any greater power to use deadly force in self-defense than civilians have.

Marcia McCormick, a criminal law professor at Saint Louis University, is sympathetic to the argument. She wrote in an email: “Perhaps because of the power we give officers, they should be held to a higher moral standard. The criminal law is an expression of what conduct the community finds blameworthy, and so it might be appropriate to align police officers a bit more with the standard for ordinary citizens, at least when it comes to the use of deadly force.” 

'The reason I have a job is that too often police officers treat the lack of duty to retreat as a directive rather than permissive. Just because they don't have to, does not mean they shouldn't on occasion.' - Steve Ryals, a civil rights lawyer in St. Louis

Combining that privileged position with other legal protections for officers makes it hard to hold them accountable, she said. “Police officers have an expansive authority justification which also makes them absolutely immune in a state civil wrongful death or battery lawsuit; a fairly protective qualified immunity defense to civil liability for civil rights violations; and no affirmative duty to act to protect people. That combination pretty thoroughly insulates them from the consequences of much of their conduct.”

Steve Ryals, a civil rights lawyer in St. Louis who sues police, added, “The reason I have a job is that too often police officers treat the lack of duty to retreat as a directive rather than permissive. Just because they don't have to, does not mean they shouldn't on occasion. Taking Officer Wilson's account as true, he had the ability to disengage rather than do battle. He could have put his truck into drive and pulled away to give him distance and an opportunity to use some of the tools he had at his disposal short of deadly force. I'm not suggesting, necessarily, that Officer Wilson should have disengaged. I am suggesting that police training would likely have taught him that to retreat is not an option. Officers are trained to control the situation with force, if necessary, and to prevail in any violent encounter.”

Klinger agreed that Wilson should have disengaged. But he strongly believes that police should not have a legal duty to retreat. To put police and civilians on the same legal plain regarding self-defense “makes absolutely no sense unless you are giving up on the state having a monopoly on legitimate violence.”

St. Louis County Prosecuting Attorney Robert McCulloch announces on Nov 24, 2014, that the grand jury declined to indict Darren Wilson on any of five counts that were presented to it.
Credit Bill Greenblatt | UPI
St. Louis County Prosecuting Attorney Robert McCulloch announce on Nov. 24 that the grand jury declined to indict Darren Wilson on any of five counts that were presented to it.

A police officer has a duty to arrest and no duty to retreat. “Saying a police officer has a duty to retreat, you can’t do that because no one would be arrested,” said Klinger.

“We operate under the basic notion that the police are the institution in our society that we have deemed to be the law enforcers and the peace keepers and we want a group of professionally trained people to be more forceful than the normal citizen. We don't want the wild west.”

Tony Dillof, a law professor at Wayne State University, put it this way on a law listserv: “It seems to me that there is an argument that where (1) a person’s job is to perform an important public service, (2) the performance of that service regularly involves the use of force, and (3) the circumstances of its use frequently make it difficult to determine whether it has been used correctly, prosecutors should not aggressively pursue an indictment based merely on probable cause as they might if a member of the public had used similar force. Facing criminal charges should not be a part of a police officer’s job."

Half a century ago, a legal expert, Egon Bittner, concluded that use of force is the defining characteristic of police. He wrote that police respond to extraordinary events involving “something that ought not to be happening and about which someone had better do something now!”

Missouri reform

One reform that just about everyone agrees on is that Missouri should revise the outmoded law giving officers the right to use deadly force to stop the escape of an unarmed fleeing felon. That law is inconsistent with both U.S. Supreme Court precedent and Missouri jury instructions. This week, Attorney General Chris Koster added his voice to those advocating the revision.

The U.S. Supreme Court decision that conflicts with the law was the 1985 Tennessee v. Garner decision. The court ruled that police cannot use deadly force to capture an unarmed, non-dangerous fleeing felon. A Memphis police officer’s shooting of an unarmed 15-year-old African-American boy as he escaped from a burglary with a purse amounted to an unconstitutional seizure, the court ruled.

But Missouri didn’t change its law then -- or recently when it adopted the new criminal code. The Missouri Supreme Court did make changes. It adopted jury instructions consistent with Garner – no shooting a fleeing, unarmed non-dangerous felon.

The resulting situation is confusing. Some legal experts say the jury instruction trumps the state law; other experts say the law trumps the jury instruction.

When the status of the law came to the attention of the prosecutors running the Wilson grand jury, they told the grand jury to disregard the Missouri law, which the prosecutors had given the grand jurors earlier in the proceedings. Instead, the prosecutors said the grand jurors should follow the Tennessee v. Garner standard that does not allow police to shoot an unarmed suspect to effect an arrest.

The bottom line is that the grand jurors made their decision based on Tennessee v. Garner – the ruling that sets a higher bar for use of force -- and still decided that Wilson had not committed a crime. So changing Missouri's law to conform with the Garner decision wouldn’t have led to an indictment.

It’s not surprising that Missouri has been slow to change. It was one of the last states to stop police from using deadly force to stop misdemeanants. Nor is Missouri the only recalcitrant state. An academic study conducted a decade after Tennessee v. Garner found that nine states still had conflicting laws. That study also found that police homicides had declined by 16 percent during that decade.

Grand juries and local prosecutors

The St. Louis County and Staten Island grand juries have generated a torrent of criticism for using state grand juries and local prosecutors for police investigations.

The St. Louis County grand jury was handled much differently than the typical grand jury, causing critics to maintain that the differences are a sign of unfairness. David Harris, an expert on police misconduct at the University of Pittsburgh Law School, has made this point.

The typical grand jury in a criminal case hears from an investigating police officer and quickly approves the prosecutor’s recommendation for an indictment. The Wilson grand jury met for three months, heard testimony supportive of the defense, including Wilson’s own testimony and did not receive a recommendation from the prosecutor.

Grand juries almost always indict in non-police cases. Bureau of Justice Statistics show that about 162,000 federal cases were presented to a grand jury in 2010; grand juries declined to indict in only 11.

But police cases, particularly controversial ones involving conflicting witness testimony, are much different from typical grand juries. They are longer and often receive exculpatory information. Grand juries overwhelmingly refuse to return indictments.

A fact sheet prepared after the Ferguson decision by Columbia Law School professors Jeffrey Fagan and Bernard E. Harcourt noted that in Houston, Tex., local grand juries have cleared police of shootings in 288 consecutive cases. 

In St. Louis County, Prosecutor Robert McCulloch has taken five police shooting cases to grand juries; none has indicted. A Missouri Lawyers’ Weekly story found that McCulloch has prosecuted police in 33 cases, getting convictions in 20 with five cases pending.

FBI statistics since 1976 show that St. Louis County Police have killed 186 civilians, reporting self-defense in about half of them and fleeing suspects in most of the others. In the past two decades, about 70 percent of those shot in St. Louis County have been black.  

A few legal experts, such as Mae Quinn, a law professor at Washington University Law School, advocate that the differences and conflicts inherent in the Wilson grand jury justify a new grand jury run by a special prosecutor appointed by the presiding judge of St. Louis County Circuit Court. A second grand jury would not be double jeopardy because jeopardy does not attach at the grand jury process.

Quinn cites a murder case involving Faye Copland, where a prosecutor was replaced by a judge because he had represented Copland and shown signs of leniency. Other legal experts point out, however, that there has been no evidence that McCulloch had a similarly direct conflict of interest.

More broadly, Ferguson protesters and some state legislators favor passage of a new law to provide for special prosecutors in police cases, noting that prosecutors work hand-in-glove with police and cannot be fair in handling police abuse cases. 

McCormick at Saint Louis University said: “A special prosecutor might go a long way to preserving the appearance of fairness and preventing what look like conflicts caused by the close relationship between the police and prosecutors. At the same time, there might be other reforms that would be more successful, like a citizen's review board.”

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. Previously, he worked for the St. Louis Post-Dispatch for 34 years, serving as assistant Washington Bureau Chief and deputy editorial editor. He covered the U.S. Supreme Court while in Washington. He is a graduate of Kirkwood High School, Stanford University and Washington University Law School. He is a member of the Missouri Bar.