Call for a “Bill of Rights” to protect civilians from police use of excessive force
“A public officer or peace officer shall not be held criminally liable for using deadly force without malice and with a good faith belief that such act is justifiable.” So announced White Thurston County Prosecutor Jon Tunheim, September 2, in his decision not to prosecute White officer Ryan Donald in the shooting of two young Black males living in Olympia who were considered “armed” with their skateboards. What comparisons might we make with Tunheim’s conclusion with the reasoning of the U.S. Department of Justice (DOJ) in exonerating White officer Darien Wilson in the killing of unarmed Black 18-year old Michael Brown?
In the case of Ferguson’s officer Wilson, the DOJ concluded,
“Darren Wilson’s actions do not constitute prosecutable violations under the applicable federal criminal civil rights statute, 18 U.S.C. § 242, which prohibits uses of deadly force that are ‘objectively unreasonable,’ as defined by the United States Supreme Court.”
To go forward with a prosecution of Wilson or of any cop under 18 U.S.C. § 242, the DOJ explained that the feds would have to prove “Wilson fired the shots with the requisite ‘willful’ criminal intent.” Citing Supreme Court cases, the DOJ stated, “The use of deadly force is justified when the officer has ‘probable cause to believe that the suspect pose[s] a threat of serious physical harm, either to the officer or to others.’” Furthermore, “Federal law requires that the government must also prove that the officer acted willfully, that is, ‘for the specific purpose of violating the law.’”
In other words, if police officers can claim that that they were threatened and acting in self-defense, they can unload deadly force on civilians whether or not they are actually armed with a weapon. Even stupidity and ignorance is protected under 18 U.S.C. § 242, according to the DOJ: “Mistake, fear, misperception, or even poor judgment does not constitute willful conduct prosecutable under the statute.” To go forward with prosecution, the DOJ contended, “The only possible basis for prosecuting Wilson under Section 242 would therefore be if the government could prove that his account is not true.” The DOJ prefaced that remark with “Wilson’s account of Brown’s actions, if true” – which is an admission that Wilson’s version of events serve as the benchmark that must be proved as false “beyond a reasonable doubt.”
Like Darien Wilson, Olympia officer Ryan Donald’s primary defense is his “good faith belief” in the use of lethal force was done “without malice.” According to the Thurston County Prosecutor, “Officer Donald was in actual fear of injury or death if struck with the skateboard and/or otherwise incapacitated or disarmed.” Therefore, “The degree of force used was necessary in light of the imminent and direct threat of serious physical harm.”
The Prosecuting Attorney cited Washington State law as the legal standard that allowed Officer Donald to shoot his two victims “armed” with their skateboards.
To summarize, in both the Olympia and Ferguson cases “the Constitutional right at issue is the Fourth Amendment’s prohibition against unreasonable seizures, which encompasses the right of an arrestee to be free from ‘objectively unreasonable’ force,” according the DOJ. Police and supposedly prosecutors determine what is “objectively reasonable” use of excessive force. Objectivity in both cases rests primarily on the subjectivity of the cops. If they feel threated in any manner, shot-to-kill is “reasonable.”
Because the nation-state “is usually defined by its monopoly over the legitimate use of violence,” geographer David Harvey explains, use of force by police rarely results in legal action against a police officer. The deck is definitely stacked in favor of the subjective judgment of cops in such shootings of civilians, especially when no investigation is conducted separately from police agencies and, most certainly, not by an independent, democratic process.
Washington state, however, can take the lead in providing state laws and requirements about what is “objectively reasonable” under federal statue 18 U.S.C. § 242 for police use of excessive force. As a start, we need a “Bill of Rights to Protect Civilians from Police Use of Excessive Force.” Here are some elements for concerned citizens to consider:
- Police officers must demonstrate actions that result in the least-harm in all encounters with civilians.
- Police use of excessive force is prohibited when non-lethal weapons would suffice.
- Police use of excessive force is prohibited when the reason for police pursuit of a civilian is based on a suspicion of a non-violent, non-lethal crime.
- When civilians are not a danger to public safety but confronted by police threatening the use of excessive force, civilians can stand-their-ground in self-defense against police violence to protect themselves.
Together, let’s build on this draft of a Bill of Rights to protect unarmed civilians from police and judicial processes that currently provide police impunity from criminal charges in nearly any kind of violence that cops choose to inflict.
As I suggested in the September issue of Works in Progress (“Changing State Laws to Prevent Police Use of Excessive Force”), we need to seriously work with any sympathetic legislators to take steps to change laws in Washington State that look to protect civilians rather than just the police. The alternative is the continuation of police violence on vulnerable populations.
Dr. Michael Vavrus lives in Olympia and is a professor at The Evergreen State College. He is the author of Diversity and Education: A Critical Multicultural Approach (2015). For more information about Michael, including his recent commentaries, go to http://www.michaelvavrus.com/
Thurston County Prosecuting Attorney. (2015, September 2). Officer involved shooting – Press conference, p. 6. Retrieved from http://www.co.thurston.wa.us/pao/
United States Department of Justice. (2015, March 4). Department of Justice Report Regarding the Criminal Investigation into the shooting death of Michael Brown by Ferguson, Missouri Police Officer Darren Wilson, p. 5. Retrieved from http://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/doj_report_on_shooting_of_michael_brown.pdf
U.S. DOJ, p. 10.
U.S. DOJ, p. 10.
U.S. DOJ, p. 11.
U.S. DOJ, p. 78.
U.S. DOJ, p. 78.
Thurston County Prosecuting Attorney. p. 9.
U.S. DOJ, p. 10.
David Harvey (2014). Seventeen contradictions and the end of capitalism. New York: Oxford University Press.; also, Human Rights Watch. (2014, October). Submission to the United Nations Committee Against Torture. Retrieved from http://www.hrw.org/news/2014/10/20/submission-united-nations-committee-against-torture