Law and Order in the Spotlight

Highly publicized cases of excessive force, with grand juries not indicting the officers, are prompting discussions about how to improve the justice system.

(photo: Shutterstock)

NEW YORK — Police, prosecutors and the U.S. justice system have taken a beating in the public eye over police use of lethal force captured on video and shared through social media.

In the aftermath of two high-profile deaths related to police use of force, protestors allege justice is being denied, police feel their reputations under siege, and officials are scrambling to reassure the public that the courts treat officers and citizens alike when it comes to crimes.

But experts say the truth about the state of law and order in the United States may reside in the middle, between the extreme views that either generalize the justice system as broken or as working perfectly.

“[People] are under the impression that it is collapsing, but it is not the case,” said Maria Haberfeld, chairwoman of the Department of Law, Police Science and Criminal Justice Administration at John Jay College.

The United States has more than 18,000 police departments operating across 50 states. Haberfeld said there should be consolidation to create uniform professional standards and better train police, but she said social media is amplifying local situations to a national level and inducing what sociologists call “moral panic” in the public.

While the public continued to debate the Nov. 24 decision of a grand jury not to indict the officer involved in the shooting death of 18-year-old black youth Michael Brown, a Staten Island grand jury declined on Dec. 3 to indict a New York Police Dept. officer in the death of Eric Garner, a heavyset, 43-year-old unarmed black man who was trying to talk officers out of arresting him for selling illegal cigarettes. The officer’s takedown led directly to the man’s death, whose desperate pleas of “I can’t breathe” were caught on camera.

At the same time, other emerging cases of recent police-related shootings emerged: Tamir Rice, a black 12-year-old boy playing with a plastic toy “airsoft” gun was shot Nov. 22 by a rookie officer moments after exiting his vehicle; Rice died the next day. In Brooklyn, an NYPD rookie officer patrolling the dark stairwell of an apartment building on Nov. 20 shot in the chest and killed Akai Gurley, 28, who was walking the stairs below because the elevator was broken.

Grand juries will have to decide whether to indict the officers involved in the Rice and Gurley shootings and allow those cases to proceed to open trial.


Trust Turned Toxic

The Brown and Garner cases have hurt the perception of the integrity of the justice system. A NBC/Marist poll showed that 43% of Americans have less confidence in the system as a result of the verdicts, and among blacks, seven out of 10 said their faith has diminished.

Incidents involving excessive use of force also cross racial lines on both the officer and victim sides. Robert “Ethan” Saylor, a 26-year-old, heavyset white man with Down syndrome, was killed in January 2013 by three off-duty sheriff’s deputies in Frederick, Md., who left him cuffed face down for one or two minutes, resulting in his asphyxiation, according to the medical examiner. The deputies were arresting him in a theater for failing to leave after a movie had ended, even though Saylor’s 18-year-old caretaker had asked them to “wait it out” because he would “freak out” if they touched him. A grand jury also refused to indict.

The grand jury is a check on prosecutors and police and an inquisitorial tool in cases involving possible felony crimes, according to Mary Leary, a criminal-law professor at The Catholic University of America and a former prosecutor of state and federal cases for 10 years.

“You [as a prosecutor] can only ask for indictment on charges you think you can prove,” she said.

While the job of a trial jury is to determine whether “reasonable doubt” is involved, as to the guilt of the accused officer, the grand jury’s job is to determine “probable cause” that the evidence shows a crime may have happened and the defendant committed it.

“The grand jury is a citizen voice saying the case should go forward,” Leary said.

But Erwin Chemerinsky, dean of the University of California at Irvine’s School of Law, said juries and grand juries give an enormous amount of deference to law enforcement. He added that prosecutors (who have to make the case to the jury) in general should not be relied upon to prosecute the police officers in their jurisdictions.

“There’s an affinity of interest,” he said, pointing out that the local prosecutor depends on his police to provide him with evidence for his cases.

Regarding the way St. Louis County prosecuting attorney Robert McCulloch ran the grand jury in Ferguson for the Brown case, the dean said, “He didn’t ask for an indictment, which is what prosecutors do; but he just said, ‘Here’s the evidence; go decide for yourselves.’”

In Chemerinsky’s own experience looking into the Los Angeles Police Dept.’s Rampart division scandal — where officers framed suspects and committed illegal shootings — he saw prosecutors fail to challenge the lies their officers told them.

Appointing a special prosecutor, or having the attorney general or a prosecutor from a neighboring district take over the case, he said, could eliminate such a conflict of interest.

“I think whenever there’s a question of whether a police officer committed a crime through the excessive use of force, it would be better not to handle it through the regular prosecutor’s office in the jurisdiction,” he said.



Leary agrees that handing off a case might be helpful in some instances, but she cautioned against over-generalizing “all prosecutors” as the same. She noted the relationship between the police and prosecutors’ offices can vary greatly from jurisdiction to jurisdiction and disagreed that all district attorneys are incapable of mounting a vigorous case against police who use excessive force.

“We prosecute police on the local level all the time,” she said, noting that she herself prosecuted an officer for committing a crime on the job.

In fact, around the same time the Staten Island grand jury refused to return an indictment in Garner’s death, a South Carolina grand jury indicted the white former chief of Eutawville, a majority-white town, on a murder charge for shooting and killing Bernard Bailey, an unarmed black resident, during a May 2011 arrest.

A North Carolina grand jury also indicted Det. Bryon Vassey of the Southport Police Department on a count of voluntary manslaughter for killing Keith Vidal, a white mentally ill teenager, in January.

“If there is a situation or a jurisdiction where a prosecutor is not going to put forward evidence before a grand jury because of his ‘allegiance,’ that’s improper,” said Leary, adding that skewing the evidence could lead to an ethics investigation and disbarment for the prosecutor.

Although the practice is not universal, Leary said presenting all evidence to the grand jury, as recommended by the U.S. attorney’s manual, is “generally a good practice.”

“Certainly, as a prosecutor, that is what I would do,” she said.


Preventing More Tragedies

Restoring confidence in the police and justice system may depend, ultimately, in preventing tragedies from occurring in the first place by creating uniform training standards and rethinking how police communicate when an incident occurs.

According to John Farrell, a 26-year veteran officer with the Las Vegas Police Dept. and project director for the Justice Database at UCLA’s Center for Policing Equity, police training can range from anywhere between six months in the academy with six months’ field training to just 15 weeks (400 hours).

“It is [also] constant training throughout the year,” he said, adding that most police departments do “mandatory in-service training, about 30-40 hours a year.”

Haberfeld said the preparation time is too short, with more than 100 hours of training spent on teaching officers just the technical aspects of using their weapons. She said there needs to be much more time and emphasis on training officers how to evaluate and approach different scenarios and better supervision of new officers.

She noted that, in Finland, police officers go through three to four years of education before hitting the streets.

“We need training, training and more training,” she said. “It’s not enough what is offered right now.”

Haberfeld said the minimum age for a mature recruit should be 25.

“We know you’re still developing emotionally and psychologically until the age of 24 or 25,” she said, arguing that it is “ridiculous” to expect a person younger than that, “with a minimal amount of training,” to have the discretion needed to police well.

Farrell said that policing is “tough, especially in a dangerous world,” but emphasized the answer is “always Yes” that police can be trained better when it comes to discretion and the use of force.

At UCLA’s Center for Policing Equity, Farrell is working on creating a database to catalogue the “outliers” where police make bad judgments on the use of force. Gathering this type of data from police departments helps them “to find areas where they can improve” in their training and their tactics, so that everyone is treated fairly in police-civilian interactions.

“In Vegas for example, we found that 25% of our use of force happened after we started chasing somebody on foot,” he said. Farrell said the solution was found in training the pursuing officer, whose blood and adrenaline are pumping, to “be hands-off as much as possible” and let the backup officers coming to help him “be the ones to go hands-on.”

Another area they worked on improving was “mistake of fact” shootings, where an officer incorrectly believed a person had a gun or a knife. To correct that, they emphasized “hand-manipulation sight training,” where an officer stands in the room, and people jump out at him with something in their hands, and he has to correctly react.

“What we’re teaching there is how to identify what the threat is and pull whatever weapon or tool you need to defuse the situation,” he said.


Building Relationships

Farrell noted that police departments have to adjust to the realities of the 21st century: building their relationships, telling their good stories, such as highlighting their officers’ good deeds in the community through social media, and practicing transparency.

“They don’t sell themselves on all the good deeds that they are doing,” he said. “But one bad use-of-force shooting or whatever can bring down years of trust-building in the community. So you have to be open and honest all the time.

“The police are going to have to be more forthcoming with their information to their community, and quicker, so that all rumors can be dispelled quickly.”


Peter Jesserer Smith is the Register’s Washington correspondent.