Tuesday, May 30, 2017

Prosecuting Police Misconduct--Why it will be hard to get a conviction in the Castile case

Note:  For seven years I taught criminal justice classes, including a course that included examination of police  civil and criminal liability.  I also discuss police use of force in the second edition of my civil rights/liberties case book to be published by West Academic this summer.

On May 30, jury selection in the case of police officer Jeronimo Yanez begins.  He is charged with the shooting of Philando Castile.  Many think it will be a slam dunk to get a conviction–after all, there is a tape of the incident that appears to show an unwarranted excessive use of force.  Yet the odds are that it will be hard to win this case.

Why? Part of the cause is that laws on the use of force favor the police, making it difficult to win cases.

Police are legally empowered to use force, including deadly force, if they believe their own safety or the public’s safety is immediately and seriously threatened. Historically, police who use excessive force could be charged criminally or sued under state tort law. Neither option works well. Sovereign immunity bars many suits, prosecutors rarely charge officers, and juries are seldom sympathetic to victims, especially if they are criminals or accused or criminal acts.

The basic legal framework for holding police responsible for excessive use of force was established in 1978 with Monell v. Department of Social Services. In Monell, the Supreme Court ruled that municipalities can be held responsible for police actions when and if plaintiffs (like victims of police brutality, for example) can show that those actions were the product of official police policy or part of a police department’s culture, customs and practices.

The problem is, this is very hard to do – and therefore it’s tough to hold police accountable for misconduct. To hold police civilly responsible for civil rights abuses three elements must be proved. First, the person filing a complaint must be a person protected under the statute. Second, the defendant (police officer) must be acting under the color of the law. Third, the alleged violation must seriously infringe on a constitutional right. Victims also have to show that police acted with deliberate indifference, which is a higher legal standard of proof than negligence. This is a very high bar.

And it gets worse. When it comes to use of force, police have significant latitude. Not all uses of force are illegal, nor are all injuries actionable (of course, this make sense, police sometimes do need to use force for good reasons).

The Supreme Court has issued two major decisions that explain when police use of force is excessive. In Tennessee v. Garner the Supreme Court ruled that the use of excessive deadly force is a Fourth Amendment violation, that is, a kind of illegal search and seizure. To determine police liability, one must balance the citizen’s interest versus the government’s. The citizen’s interest is substantial, of course: not to die. To overcome that interest, police must show that the officer believed that the suspect poses an immediate threat of serious physical harm to the officer or others.

In Graham v. Connor the Supreme Court created an even softer standard for the excessive use of non-deadly force, based on whether the use of force would be justified from the perspective of a reasonable officer with 20/20 hindsight.

Excessive use of force cases are hard to win for all the reasons criminal and state tort liability cases are. Moreover, public fears of crime complicate matters.  So does racism, especially in situations with mostly white officers – and often mostly white prosecutors, judges and juries – and people of color as victims.   Much of this may not apply in the  Castile case.  But another reason why these cases are hard to win is that the law determines excessive force from the perspective of the police officer, not the victim. Few juries are willing or able to second-guess a cop.

While the above framework applies to civil responsibility, it overshadows criminal liability for police conduct.  Effectively a prosecutor will need to demonstrate that a police officer–here Officer Yanez–acted outside the scope of his authority when he used force.  Then the prosecutor will need to prove the elements of the crime second-degree manslaughter and two felony-level counts of dangerous discharge of a firearm–beyond a reasonable doubt.  Taken together, this is a very high bar
for prosecutors to overcome.

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