The failure to indict Ferguson, Mo., police officer Darren Wilson for the death of Michael Brown fits an all-too-familiar pattern of police officers not being held accountable. The reaction to the prosecutor's announcement that Wilson would not be indicted was predictable: Progressives claimed that the decision was unjust and based on racism in the criminal justice system; conservatives defended the grand jury and officer Wilson. These sentiments were expressed before anyone had a chance to review the evidence heard by the grand jury.
If there is to be a discussion of the justness of the grand jury's decision, it must be based on the evidence and whether it was sufficient to meet the relatively low standard of whether there was probable cause to believe that a crime was committed in the shooting of Brown on Aug. 9. Grand juries rarely decide not to indict. For example, of 162,000 federal cases presented to grand juries in 2010, grand juries failed to indict in 11 of them. The question at this stage was not whether Wilson was guilty of a crime, but whether he should have been tried for one.
What I find most disturbing and most in need of attention is the pattern of officers being exonerated, especially when the officers are white, and the victims are young men of color. It is precisely that pattern that led to the immediate condemnation of the Ferguson grand jury and why its decision led to riots there and to protests across the country.
The decision to not indict in Ferguson follows the acquittal a year ago of George Zimmerman, a self-appointed neighborhood watchman, for the killing in Florida of 17-year-old Trayvon Martin. In January, two former Fullerton police officers were acquitted on all charges in the killing in 2011 of Kelly Thomas, a homeless man who had been diagnosed with schizophrenia. Medical records show that bones in his face were broken, and he choked on his own blood; the compression of his thorax by the police made it impossible for Thomas to breath and deprived his brain of oxygen.
Nor is this a new phenomena. Even with a videotape of a savage beating, a state court jury in 1992 acquitted the four Los Angeles police officers who beat Rodney King, and a subsequent federal court jury acquitted two of them. The riots in Los Angeles after the state court acquittals, like the riots last week in Ferguson, reflected the enormous anger and frustration with the failure to hold police accountable.
Why the failure, and, most importantly, what can be done about it? To begin with, there is the reluctance of prosecutors to aggressively prosecute police officers. Prosecutors depend on police officers in their cases literally every day.
More than a decade ago, I did a report on the Los Angeles Police Department in the wake of the Rampart Division scandal, where officers planted evidence on innocent people and then lied in court to gain convictions. I learned of numerous instances where prosecutors did nothing even when they had every reason to know that the police officers were lying. It caused me to conclude that there should be special prosecutors to handle cases of police misconduct rather than depend on prosecutors who rely on keeping a close relationship with police.
The standard for both criminal and civil liability asks whether, from the perspective of the officer at the time, the conduct was reasonable. There is an understandable desire of jurors to give officers the benefit of the doubt, especially when making split-second decisions in what they perceive as life-threatening circumstances.
A problem arises, though, when the jury or grand jury hears from the officer, but not the victim. It is all too easy for the officer, in hindsight, to magnify the perceived threat to justify his or her actions. When the officer is white, and the victim is a young man of color, the reality of unconscious racism also matters as events are interpreted.
A crucial part of the solution must be to require that all squad cars be equipped with cameras and all officers wear cameras so as to maximize the likelihood that events will be recorded. As the Rodney King trial demonstrated, a recording does not end the need for interpretation, but it can provide much-needed evidence.
Also, a series of decisions by the Supreme Court have made it very difficult for those injured by police misconduct to sue for money damages. This undermines police accountability and denies victims of needed compensation.
For example, the Supreme Court has ruled that local governments can be held liable only if it is proven that their own policies caused the excessive force or other constitutional violations by their officers. This is a standard that is rarely met. In almost all other situations, employers are held liable if their employees inflict injuries in the scope of their jobs; the same should be true for cities and their police departments.
The grand jury's choice to not indict Darren Wilson must be seen in the context of a much larger problem with holding police accountable for the use of excessive, even deadly, force. Much can be done to improve this, and these reforms should be the legacy of what happened in Ferguson.
Erwin Chemerinsky is dean of the UC Irvine law school.
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Posted by Unknown on Sunday, December 7, 2014 - Rating: 4.5
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