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How Should We Handle Police Shootings in Post-Ferguson America?

Now that the feds have declined to press civil rights charges against Officer Darren Wilson for killing Michael Brown, police reformers are mulling their next move.

by Justin Glawe
Mar 4 2015, 8:30pm

Photo via Flickr user Ted Eytan

In the eyes of the law, Darren Wilson is not responsible for the shooting death of Michael Brown. The Ferguson, Missouri police officer acted in self defense, a St. Louis County grand jury decided in November, and he did so without racial motivation, the Department of Justice concluded Wednesday.

In summarizing the August incident, the feds exonerated Wilson as follows:

As detailed throughout this report, several witnesses stated that Brown appeared to pose a physical threat to Wilson as he moved toward Wilson. According to these witnesses, who are corroborated by blood evidence in the roadway, as Brown continued to move toward Wilson, Wilson fired at Brown in what appeared to be self-defense and stopped firing once Brown fell to the ground. Wilson stated that he feared Brown would again assault him because of Brown's conduct at the SUV and because as Brown moved toward him, Wilson saw Brown reach his right hand under his t-shirt into what appeared to be his waistband. There is no evidence upon which prosecutors can rely to disprove Wilson's stated subjective belief that he feared for his safety.

While Wilson gets off scot free, the DOJ on Wednesday also announced the results of its findings from a months-long examination of policing practices by the Ferguson Police Department. As teased by multiple media outlets on Tuesday, the feds' report details an environment of racial discrimination has existed for years in the St. Louis suburb of Ferguson, and that both the town's government and police force were complicit in enforcing laws and regulations that overwhelmingly targeted African Americans.

Neither announcement comes as much of a surprise, but both beg the question of how the investigations' findings will affect police-involved shootings going forward. Following Brown's death, and the deaths of Eric Garner in New York and scores of other killings of men of color by police, that was the question the country grappled with over the summer. For insight into that issue, we can look to the findings of President Barack Obama's Task Force on 21st Century Policing, which called Monday for independent investigations of police-involved shootings.

The task force suggested such investigations could be handled by neighboring jurisdictions, or state or federal law enforcement agencies, which is often already the case when police are accused of excessive force or misconduct. In fact, many of the suggestions are already in place. What's missing is a national protocol for how these incidents are investigated. As it stands now, police-involved shootings are handled in piecemeal fashion, with myriad paths for investigators, family members of the deceased, and community members to go down. In anticipation of the reports released today by the Justice Department, VICE began examining these various means of investigation in January, and has compiled them below.

Civil Lawsuits

The Windy City of Chicago may provide some of the best examples of this method of justice, as unsatisfying as it may be for the families of those killed by cops. If you had to guess, how much money do you think Chicago paid in excessive force and police misconduct claims in a single year? From the Better Government Association:

"In 2013 alone, the city shelled out $84.6 million—the largest annual payout in the decade analyzed by the BGA, and more than triple the $27.3 million the city had initially projected to spend [in 2013]."

Last year, the city paid $50 million for misconduct cases, "more than the budget for the offices of the mayor, the city treasurer, the city council, the council committees and the department of human resources—combined," according to Truth-Out.

Among those paid by the city are the families of some of the 116 people killed by Chicago police since 2007. Last year, the Chicago Police Department was responsible for the deaths of 18 people, my own examination of databases, media reports and police documents obtained by Freedom of Information Act requests suggests. (The FBI does not require law enforcement to report police-involved shootings, and I could find no comprehensive list of those killed by Chicago police among area media outlets.) A few of those deaths raised the ire of the black community in the wake of Michael Brown's death, but none garnered much in the way of national attention.

So what would a civil lawsuit mean for the Brown family, and families of future victims of police bullets? Not much, according to University of Missouri Law Professor Ben Trachtenberg. Families of those killed, wounded or mistreated by police must prove the offending officer was unjustified in his or her actions. That has been the recourse for many in Chicago, as the above figures indicate. For the Brown family, should they file a civil lawsuit, they'll have to prove what no one else has been able to—that Officer Wilson acted irrationally or with some form of bias in killing Brown.

The family "must still convince the jury that Wilson broke the law," Trachtenberg told me in an email about a possible civil suit. "If the jurors believe his self-defense story, Wilson should win in civil court."

Independent Investigations

Depending on who's performing an investigation into a police-involved killing, the level of independence can vary widely. St. Louis County Prosecutor Bob McCulloch's ties to law enforcement created a massive conflict of interest in the minds of many following Brown's death. But critics of McCulloch and his handling of the case must at least concede that the final decision was up not to him, but a jury (even if jurors were misled—more on that later.)

While grand juries might seem like the norm for police-involved shootings and deaths, many of those incidents must first go through review boards that sometimes have strong ties to law enforcement. Again, Chicago provides a good example of this. There, the Independent Police Review Authority (IPRA) is, at least according to the reform advocates I spoke to, no better than its predecessor, the Office of Professional Standards, an in-house unit that had cops investigating their peers over misconduct and excessive force complaints.

Who handles those investigations now? Ex-cops, you likely won't be surprised to hear. From WBEZ-Chicago:

City records obtained through a Freedom of Information Act request show that IPRA's management now includes six former cops—officials who have spent most of their career in sworn law enforcement. Those include the agency's top three leaders.

"Complaints may be seen not through the eyes of the citizen but through the eyes of a police officer," said Paula Tillman, a former IPRA investigative supervisor who was a Chicago cop herself in the 1970s and 1980s. "The investigations can be engineered so that they have a tilt toward law enforcement and not what the citizen is trying to say."

Without bodies like IPRA, investigations of police are often handled by local prosecutors, who decide whether to proceed with criminal charges. That's the situation in New Jersey right now, where the January death of 36-year-old Jerame Reid is being looked into. The South Jersey Times used an Open Public Records Act (OPRA) request to obtain video of the fatal shooting of Reid—which occurred at a traffic stop and while Reid's hands appeared to be empty and in front of his chest. That county prosecutor, by the way, has recused herself from the case because she knows one of the officers who shot Reid. And the video—irrefutable evidence of the exchange between Reid and the cops who killed him—would never have been released if not for a reporter's diligence, according to Capt. Michael Giamari of the Bridgeton Police Department.

"In absence of the OPRA request this video would not be released to the public out of respect for the family of Jerame Reid, basic human dignity and to protect the constitutional rights of all those involved," Gaimari told the South Jersey Times.

The Reid case is still being mulled over by the Cumberland County Prosecutor's Office, and community members have called for the state's attorney general to step in.

Also in New Jersey, Newark Mayor Ras Baraka has created a "citizen review board" that will investigate claims of police misconduct independently of law enforcement by employing residents as watchdogs. But in Atlanta, Georgia, the effectiveness of a citizen review board is in question because it cannot investigate "allegations of discrimination, abuse of authority, lack of service or discourteous behavior," according to WXIA-Atlanta, and cannot accept anonymous tips. In Salt Lake City, Utah, the mayor has criticized the handling of reports compiled by a citizen review board, going so far as to pen an op-ed to the local paper.

"The presumption should be that the board's reports are considered public documents," not the other way around, Mayor Ralph Becker wrote, adding, "In the meantime, I have issued an executive order directing relevant city staff to expect that, unless there is a compelling need for privacy in a particular case, board reports will be made public when there is a substantial public interest in the matter at hand."

Defining what is of "substantial public interest" may be the tricky part, as anyone who has tried to avoid fees charged by government agencies responding to Freedom of Information Act requests has found. Public interest is in the eye of the beholder, and it can sometimes take a substantial public outcry to force accountability.

Jury Trials

Don't expect to see too many of these. Besides Albuquerque, New Mexico—where the local district attorney decided to sidestep the grand jury process, instead leaving it up to a judge to determine what charges to slap on two cops there for the death of knife-wielding homeless man James Boyd—cops rarely end up in court for on-duty killings (with one recent exception). The move by DA Kari Brandenburg in Albuquerque can be taken one of a few ways: It represents a passing of the buck to the judge who must decide whether to indict the officers; it creates more transparency by bringing witnesses into open court instead of a locked grand jury room; or it marks a dangerous precedent for future cases. That's the contention of the local police union vice president, Shaun Willoughby, who told KOAT-Albuquerque in January that the cops there "[...] are terrified" and "afraid to do their job."

For her part, Brandenburg said at the time that the decision to bring the officers before a judge was directly related to the aftermath following Michael Brown and Eric Garner's deaths.

"Unlike Ferguson and unlike in New York City, we're going to know. The public is going to have that information."

Regardless of the outcome for the two officers, Albuquerque's cops are now under the watchful eye of criminal justice expert Dr. James Ginger, appointed by the DOJ to oversee police reforms there.

Since announcing she would pursue charges, Brandenburg's case has hit a few snags, including conflict of interest allegations on both sides. Most recently, the attorney representing one of the officers who shot Boyd has been accused of having a conflict of interest because he represented both cops during the police department's own probe of the incident.

More Transparent Grand Juries

Grand juries are secretive by nature. In order to protect the identities of those deciding whether or not to charge someone with a crime—especially one as contentious as a cop killing an unarmed teenager—we're not guaranteed the names of those who serve. But at least one juror who helped to determine Darren Wilson's fate wants to go public with their experience, which currently would be a crime. "Grand Juror Doe" has filed a lawsuit in an attempt to speak publicly about the Ferguson grand jury proceedings. Carlton Lee, Michael Brown, Sr.'s pastor and a friend of the family, vehemently expressed his support for the juror in question when VICE reached him in January.

"McCulloch put people on the stand who lied," Lee told me, noting McCulloch's admission that he knew some grand jury witnesses were less than truthful in their grand jury testimony. "So, we know about these lies, and then you put a lifetime ban on the jurors who say 'Let us speak out about what we saw, let us speak about what we heard'? No, let these people talk."

Lee continued with more pointed criticism.

"He's a compulsive liar," Lee said of McCulloch. "So I think with [grand jurors] coming out, with them being able to speak out about this, we will hear how they were misguided, how McCulloch's office lied."

With so little trust between communities of color, law enforcement and the justice system in general, there is one other way to avoid situations like the one that consumed Ferguson by fire and national attention by news this past summer.

Police Outreach

As part of their annual meeting in late January, the US Conference of Mayors, like Obama's task force, called for "outside investigators" to look into police-involved shootings. Sounds like a solid recommendation, except that in both cases, it's just that: There are no guarantees that it will happen, and as of today no law has been inked that would require outside groups to take responsibility for investigating police-involved shootings.

Other than the DOJ—a body that people like Lee feel slighted by following the news that Wilson won't be charged with violating Brown's civil rights—there is no one entity that oversees deaths at the hands of police. Instead, there's just a hodge-podge conglomeration of review boards and watchdog groups, reporters and media outlets interested in the issue, and families who are looking for answers about the deaths of their loved ones.

Efforts by police to reach out to communities of color might help. But if the results of investigations into the deaths of black men remain similar to the one reached by the DOJ in Wilson's case, Lee is ready to dismiss law enforcement outreach as nothing more than lip service.

"To me, I feel like it's all for show, to appease people" he said of the DOJ's findings on Brown's death. "Over and over and over and over again we have been let down the same way."

For the pastor and his allies, it's not necessarily that the cops are solely to blame for the deaths of Michael Brown, Eric Garner and others. The police in those cases were performing as actors in a society where people of color are treated differently, and with more suspicion. The cops are part of a larger, systemic problem, Lee told me. It's a situation that can't be addressed by just one of the alternative methods for investigating police misconduct listed above, but possibly by all.

Brown may not have had his hands up, but that's besides the point, according to Lee. And, simple as it may sound, he and others have pointed to the case of Aurora movie theater shooter James Holmes as indicative of how suspects are treated differently based on their skin color.

"You mean to tell me that a murderer in a movie theater in Colorado can walk out of there after killing all those people and go to trial, but Michael Brown is killed because of a damn pack of cigarillos?" Lee said. "Give me a break."

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