Policy changes that matter
The most recent incident I’ve seen of a police officer shooting a Black person was reported by Nika Wright on July 19 on the Common Dreams website. According to Wright, and now more widely across news sources, Charles Kinsey, a caregiver at a group home in North Miami, was shot in the leg by a police officer while he was lying on his back, arms stretched straight overhead, fingers straight, clearly holding nothing. Kinsey was trying to talk an autistic client into coming back home. The widely-circulated video shows Kinsey on his back with his hands in the air, head up in a version of a curl so he can plead with his client, who is sitting near him, to lie down. We can hear Kinsey saying to the police that guns aren’t needed, and we hear him pleading with his client to lie down. He says and does nothing threatening by any measure. Even so, a police officer shot him in the leg. In a second video, we see Kinsey lying on his stomach, handcuffed. So, too, is his client. Apparently, Mr. Kinsey was forced to lie on the hot Miami pavement for 20 minutes in that position, bleeding, before he was taken to a hospital.
Afterwards, Kinsey told reporters that when he was searched for weapons, he asked the officer who shot him why: “Sir, why did you shoot me?” In response, the officer said, “I don’t know.” (Commondreams.org, July 21, 2016)
Perhaps the officer didn’t know why he chose to shoot an unarmed man who wasn’t threatening him. What he does know is that he won’t be prosecuted or penalized for making that decision. Writing for CNN, Laura Coates, former assistant U.S. attorney for the District of Columbia and trial attorney in the Civil Rights Division of the Department of Justice, argues that the legal language of “deference”—inserted by the Supreme Court—blocks successful prosecution of cases brought against murdering police officers. She writes, “Supreme Court precedent requires that we defer to the judgment of police officers in determining the amount of force necessary to apply in the performance of their duties.”
“Normal” police practice defensible in court
In practice, Coates explains, this means that when prosecutors bring cases against police officers forward, they discover they must prove that the officer acted not according to a standard of reasonable behavior for civilians, but “by what another officer would do.” When the officer who shot Kinsey said he didn’t know why he shot an unarmed man who wasn’t threatening him, he likely did know that police officers shooting black men passes for “normal behavior” in this country. He doesn’t need a reason—he just needs a norm to justify his behavior.
That’s the line John Rivera, president of the Miami-Dade County Police Benevolent Association, took later in the day after the shooting happened. Rivera called it an accident. According to the Washington Post, in addition to claiming that the shooting wasn’t intentional, Rivera also read a statement written by the officer who shot Kinsey. In it, the officer justifies his action by saying he did what he did in a “split second”—even though the video tape lasts 2.5 minutes before any shots are fired, and in that time, all that is happening is Kinsey calling to both the police and his client, while his client, sitting cross-legged, looks at the toy truck he is holding in his hands.
The need for split second decision making is why the Supreme Court took the position that we have to defer to a different standard for judging police behavior. No one argues that policing is easy, nor that police don’t find themselves in dangerous situations. But, parallel to the Catholic Church’s longstanding, ineffective effort to “handle” the epidemic sexual abuse committed by priests internally, on their own terms, police departments’ records for self-policing are bad. Much more common are incidents where racist officers move from one department to another—Cleveland police officer Timothy Loehmann, who shot 12-year-old Tamir Rice. Equally common are reassignments–the officer who falsely arrested Sandra Bland, Brian Encinia, is on desk duty.
Writing for the National Catholic Reporter last summer, Mariam Williams argued that studying the Catholic church’s response to the abuse crisis can help us learn to combat police terrorism:
“Like priests who were shuffled to different parishes to cover their abuse, these law enforcement officers are shielded by personnel decisions that don’t require they be held accountable for their actions. Taxpayers pay survivors of police abuse in civil lawsuits, but the officers continue working as if nothing happened.”
One thing that helped bring the abuses committed by members of the Catholic Church to light was the long overdue public outcry in support of those who had been abused, coupled with the insistence that abusers be held to account—and not just the abusers, but also their superiors who protected them.
In the current circumstances, it’s nearly impossible to successfully prosecute police officers who shoot people. A significant factor is the “deference” standard—the legal precedent that protects police officers from being judged by the same reasonable standards that apply to all us. Laura Coates argues that until this changes, the shootings will continue, and so too will the outrage agains them:
“Without a legal hook, there can be no meaningful check on an abuse of police power. Protestors are angered by the realization of this futility, and their resulting impotence. Powerlessness is as cancerous as power is addictive. It fuels a desire to reclaim a sense of power, and take the law into your own hands.”
Moving towards more police accountability in Washington
A ballot initiative is underway in Washington State to try to make it easier to prosecute officers who use deadly force. Currently, we have some of the most protective legislation in the U.S. when it comes to judging police officers’ actions. According to our RCW, if officers use deadly force “without malice and with a good faith belief,” they cannot be prosecuted.
How do you prove that an officer’s use of deadly force was accompanied by “malice”? If you can’t make that case, the officer can’t be charged. Since that case can’t be made—no one can witness the officer’s actual state of mind at the time of the shooting, officers can’t be charged.
I-873 would change that, striking the phrase “without malice and with a good faith belief” from the RCW.
Lisa Hayes, Olympia resident, is leading the statewide initiative campaign, which needs 250,000 signatures by December 30, 2016, to make it onto the 2017 ballot. The sponsoring organization, Washington for Good Policing, has about 25,000 signatures as of this writing.
Writing in support of I-873 in the South Seattle Emerald on July 18, Cliff Cawthorn points out that between 2005 and 2013, 213 people were killed by police officers in Washington State, and only officer faced charges, which were later dropped due to the malice clause. He notes that Native Americans are subject to police brutality more than any other group per capita.
Collecting signatures and supporting I-873 feels like a very mediated response to the horrific pattern of police violence against people of color in the United States. Much more needs to be done to right the wrongs of structural inequality and systematic racism. Ta-Nehisi Coates, in his typically insightful and acerbic style, writes in July 2016 issue of The Atlantic that “the policies which the police carry out are not the edicts of a dictatorship but the work, as (Joe)Biden put it, of ‘the greatest democracy in the history of the world.’” He asks us to focus not just on implementing better policing procedures, but to tackle the larger and more important work of “building the kind of equitable society in which police force is used as sparingly as possible.” I agree—and I also think we need to support the change in our RCW proposed by I-873. The un-prosecutable acts of violence have to stop.
Emily Lardner lives and works in Olympia, Washington.
Initiative Measure 873, filed May 20, 2016
AN ACT Relating to the use of deadly force by a law enforcement officer or peace officer; amending RCW 9A.16.040; and creating a new section.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF WASHINGTON:
NEW SECTION. Sec. 1. (1) Washington state has the most regressive laws in the United States regarding the use of deadly force by law enforcement officers. Under the current law, it is impossible to prosecute a law enforcement officer in a use of deadly force crime.
(2) RCW 9A.16.040(3) states that an officer who acts without malice cannot be held criminally liable. However, malice is a state of mind, and cannot be proven. Therefore, the statute as it exists provides a foolproof shield against prosecution of an officer regardless of the circumstances in which deadly force is used.
(3) This act petitions to remove the “without malice and with a good faith belief” clause in the statute.
(3) A public officer or peace officer shall not be heldcriminally liable for using deadly force ((without malice and with a good faith belief that)) if such act is justifiable pursuant to this section.