Policing America

Of course President Obama’s former chief of staff was vacationing in Cuba, when everyone knows that one more year of sanctions and silence, a fifty-fifth year, would topple the Castro regime as the Cuba people would finally be fed up with Fidel and his little brother, Raoul. It could happen, but no, Obama insisted on normalizing relations with Cuba, so we could at least talk. Do we trade and talk with communist China, or Vietnam? Well, we do, but never mind. Obama’s former chief of staff was down there sipping rum in the sun, and probably smoking big cigars, giving aid and comfort to the enemy, and then he wasn’t:

Mayor Rahm Emanuel of Chicago, who has faced calls to resign amid an unrelenting outcry about the Police Department’s handling of fatal shootings, has cut short a family vacation to Cuba and will return to the city, his office said Monday.

A spokeswoman for Mr. Emanuel, Kelley Quinn, said in a statement that the mayor was ending his trip early so that he could “continue the ongoing work of restoring accountability and trust in the Chicago Police Department.”

The guy is in trouble:

Much of the recent criticism of Mr. Emanuel stems from the city’s handling of the investigation into the 2014 death of Laquan McDonald, a black teenager who was shot 16 times by a white police officer.

In an approach that fueled claims of a cover-up, Mr. Emanuel’s administration spent months resisting demands to release a videotape of the shooting. Officer Jason Van Dyke was charged last month with murder, and his lawyer has said that Officer Van Dyke believes he was justified in the shooting and will go to trial. This year, the city agreed to pay a $5 million settlement to Mr. McDonald’s family.

There was no way of making this look good. No other officers on the scene drew their guns. After the fourth or fifth shot, with McDonald lying face down in the street, not moving at all, clearing dying right there, the other officers tried to get Van Dyke to stop shooting the motionless body in the street again and again and again. It was all on tape for everyone to see. Rahm Emanuel slow-walked the investigation of this for as long as he could – an election was coming up – and that was a mistake, because these things keep happening:

For Mr. Emanuel, who was forced into a runoff this year to win a second term, the job of rebuilding confidence in the police has become increasingly urgent, particularly in the wake of an episode on Saturday in which the police killed two people, including a woman who was shot by mistake.

The Los Angeles Times has the details of that:

Family members of two people killed by Chicago police during a weekend shooting joined activists Sunday to call for sweeping changes in the way officers interact with the city’s black residents.

“Police are supposed to serve us and protect us, and instead they kill us,” said Janet Cooksey, whose 19-year-old son, Quintonio LeGrier, was shot and killed early Saturday when police were called to his house for a domestic disturbance. “What’s wrong with this picture?”

Bettie Jones, 55, who lived downstairs from LeGrier, also was shot and killed. The officers were responding to a report of a man carrying a bat, and opened fire after LeGrier became combative, Chicago police said in a statement. Jones was shot by accident, authorities said.

Oops. She’s dead, but the kid had a baseball bat. Janet Cooksey hoped the police would take her son’s bat and calm him down, or arrest him and take him away for a bit – for everyone’s safety. They shot him dead instead. That’s one way of solving that problem, but that didn’t seem right:

Some family members asked city residents to respond to the shootings with calm, while others called for a march on City Hall and for members of the black community to take to the streets to demand action from city leaders. U.S. Rep. Danny K. Davis and Alderman Jason Ervin were among a few elected officials who said they didn’t have any more details than the public.

“Police officers have batons, police officers have Tasers, police officers have pepper spray,” Ervin said. “But I don’t how a bat instantly equals a bullet.”

That is disturbing, but there was that misunderstanding of what the police do:

Sam Adam Jr., an attorney who is representing the Jones family, said family members told him that Jones received a call early Saturday informing her that police were on their way to the residence. She went to answer the door, he said.

“If there’s one person who should feel safe when the police arrive at her door, it’s her,” Adam said. Several shell casings from a police weapon were recovered near the sidewalk, at least 20 feet from the front door, and Jones and LeGrier were reportedly found near the doorway, he said. Police would not have been under immediate threat from that distance, he added.

“That gives me great pause and great concern as to whether this was justified,” Adam said.

Perhaps the police in Chicago are very frightened people, but enough is enough:

Albert Person, LeGrier’s cousin and a friend of Jones’, also questioned why police fired at the two, saying they did so from across the front yard as LeGrier stood in the doorway. He was holding a baseball bat but was not an immediate threat to officers, Person said.

Something odd was going on here. Don’t call the Chicago police for help. Either they get scared very easily and then shoot anything that moves or they find your problems boring and just end them quickly, so they can go home and unwind and play with the kids, like normal people. Either way, the mayor is in trouble:

“This has to stop, and this has to stop now,” said Ja’Mal Green, who has been a leader in protests since the McDonald video release. “We need to put more pressure on leaders to finally change the police culture in our neighborhoods, and to finally change how the police act toward us.”

Green said of Emanuel: “You failed us before, but now is your time to stand up or step down.”

He may stand up when he gets back from Cuba – he certainly isn’t going to step down – but don’t expect much. Policing doesn’t work that way in America. Everyone just learned that again, three hundred forty-five miles to the east, in another gritty city:

A grand jury declined on Monday to charge a Cleveland patrolman who fatally shot a 12-year-old boy holding a pellet gun, capping more than a year of investigation into a case that added to national outrage over white officers killing African-Americans.

In announcing the decision, Timothy J. McGinty, the Cuyahoga County prosecutor, said he had recommended that the grand jurors not bring charges in the killing of the boy, Tamir Rice, who was playing with the gun outside a recreation center in November 2014.

The Cuyahoga County prosecutor told that grand jury not to indict, please, an odd request from a “prosecutor” of course, but he had his reasons:

Mr. McGinty said the fatal encounter had been a tragedy and a “perfect storm of human error, mistakes and miscommunications.” But he said that enhancement of video from the scene had made it “indisputable” that Tamir, who was black, was drawing the pellet gun from his waistband when he was shot, either to hand it over to the officers or to show them that it was not a real firearm. He said that there was no reason for the officers to know that, and that the officer who fired, Timothy Loehmann, had a reason to fear for his life.

It was simply a misunderstanding:

The case began when a caller to 911 said a male was pointing a gun at people in a Cleveland park. The caller added that the gun was “probably fake” and that the person waving it was “probably a juvenile.” But those caveats were not relayed to Officer Loehmann or his partner, Frank Garmback, who was driving the patrol car. Officer Loehmann, who is white, opened fire within seconds of arriving at the park. Officer Garmback was also spared any charges.

The shooting in Cleveland came just two days before a grand jury in Missouri declined to indict a white police officer in Ferguson who fatally shot Michael Brown, an unarmed black 18-year-old.

That last bit was unfortunate, and there has been a series of these things – in New York, Baltimore, North Charleston, and so on – and hundreds of demonstrators denouncing the way the police treat black folks, and birth of the Black Lives Matter movement, but the idea here was that this was different:

Mr. McGinty said that no matter how tragic the circumstances involving Tamir’s death, the law gives the benefit of the doubt to officers who must make split-second decisions.

Not good enough:

“It has been clear for months now that Cuyahoga County Prosecutor Timothy McGinty was abusing and manipulating the grand jury process to orchestrate a vote against indictment,” lawyers for Tamir Rice’s family said Monday in a statement. “Even though video shows the police shooting Tamir in less than one second, Prosecutor McGinty hired so-called expert witnesses to try to exonerate the officers and tell the grand jury their conduct was reasonable and justified.”

That doesn’t matter:

Police Chief Calvin Williams said Officers Loehmann and Garmback would remain on restricted duty until the administrative review was completed. He said the review would look at whether department policies were violated during the encounter, including the actions of the call taker and dispatcher, the shooting itself, and the aftermath. “We’ll look at the incident from start to finish,” Chief Williams said, and consider discipline if violations are found.

Hey, these two could get a reprimand, but that would be it:

Mr. McGinty noted that the officers had never been told that the original caller suggested the gun might be a fake. “Had the officers been aware of these qualifiers, the training officer who was driving might have approached the scene with less urgency,” said Mr. McGinty, who said the officers could not be penalized for what they did not know. …

Mr. McGinty said: “The death of Tamir Rice was an absolute tragedy. It was horrible, unfortunate and regrettable. But it was not, by the law that binds us, a crime.”

But things were still murky:

Mr. McGinty defended his decision to publicly release a series of expert reports he commissioned before the grand jury announcement, saying they made for a transparent process that allowed the public to reach informed conclusions. Those reports found that Officer Loehmann acted reasonably in shooting Tamir, but the Rice family commissioned its own outside reports that reached the opposite conclusion.

And there was this:

Since Tamir’s death, questions have been raised about Officer Loehmann’s qualifications and about the Cleveland police’s standards on the use of force. Records show that Officer Loehmann resigned from another Ohio police department after a “dangerous loss of composure” during firearms training. The Cleveland police did not review that department’s personnel file before offering him a job.

For years, the Cleveland police have been criticized for being too aggressive in their use of force, and for broader failures in management, record keeping and training. In May, the city agreed to a sweeping consent decree with the Justice Department that required changes in how officers use and report force, and placed the police under the supervision of an independent monitor.

The Chicago Police Department will soon be under the same sort of decree, but that doesn’t solve the real problem:

Mr. McGinty presents evidence in all fatal police encounters to a grand jury, but some activists have questioned the fairness of the process, and have noted that indictments are generally unlikely unless one is sought by a prosecutor.

In the Rice case, family lawyers have said for months that they have little confidence that Mr. McGinty wanted the officers charged. The lawyers have called for a special prosecutor in the case and have asked the Justice Department to investigate.

The Justice Department may look into that too. They said they would “continue our independent review of this matter, assess all available materials and determine what actions are appropriate, given the strict burdens and requirements imposed by applicable federal civil rights laws.”

That’s limited relief, and Slate’s Leon Neyfakh points out another issue:

McGinty’s office made the case for the non-indictment during an extended press conference this afternoon. But the central concept in the case – the one that it is crucial to understanding the grand jury’s reasoning – was never mentioned. That concept is known in law enforcement circles as “officer-created jeopardy”: situations in which police officers are responsible for needlessly putting themselves in danger, committing an unforced tactical error that makes them vulnerable – and then using deadly force to protect themselves.

In this case that was this:

As security footage of the shooting shows, Loehmann and Garmback’s car didn’t come to a stop until it was right next to Rice. In fact, the video indicates that the car was still moving when Loehmann opened the passenger side door and jumped out. Faced with a suspect they believed to be armed, in other words, Loehmann and Garmback decided to drive right up to him – thereby exposing themselves to the possibility that Rice could open fire on them with almost no warning.

The question the grand jurors had to answer, then, was whether to take that decision into account when determining the legality of the officers’ actions. Did it matter that no one forced Loehmann and Garmback to approach their suspect so aggressively? Did it matter that, by approaching him the way they did, they were the ones who had created the situation in which it then became necessary, in Loehmann’s view at least, to use deadly force?

There is no legal consensus on this.

That is one BIG problem:

To understand the parameters of this debate, it helps to first look at the set of basic questions that always comes up when a law enforcement officer comes under legal scrutiny for using deadly force against a civilian. Was the officer justified in using deadly force? Was it reasonable for him to fear that the suspect posed a threat of death or serious bodily harm to him or others? Would other officers have acted the same under the circumstances?

As McGinty and assistant district attorney Matthew Meyer explained during Monday’s press conference, these questions arise because of a 1989 Supreme Court ruling in Graham v. Connor, which established the constitutional test by which all use of force cases involving the police must be evaluated in court. The ruling classified use of force as a form of “seizure” – meaning that it was subject to the Fourth Amendment, which protects against “unreasonable” searches and seizures. It also included several key lines that have since been cited endlessly by lawyers defending police officers from excessive force lawsuits.

The first of these key lines stated that use of force incidents had to be evaluated “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” The other said “the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation.”

But there are two possible ways to apply the “reasonableness” standard set forth in Graham to a case like that of Tamir Rice. One looks only at the moment when the officer decided to fire his gun; that’s the view McGinty and the grand jury took in deciding not to indict. The other zooms out and examines the choices that the officers made leading up to that moment.

This is a legal muddle:

This is sometimes referred to as the “final frame” vs. “phases of the encounter” question. And the Supreme Court is vague about how it should be answered: On the one hand the Graham ruling specified that we should consider “the totality of the circumstances,” but on the other hand, it zeroed in on the “the split-second decision” an officer makes when applying use of force.

There is arguably good reason for this apparent ambivalence: Different situations call for different tactics, and the law has to be flexible enough to allow officers to respond to crisis situations swiftly. As Chuck Wexler, executive director of the Police Executive Research Forum, a nonprofit that works with law enforcement agencies around the country, told me recently:

“We expect a lot of our police officers. In an active shooter situation we expect officers to step up and act immediately and get the bad guy. For a police officer to pause in those situations… that’s not what we expect. On the other hand, in these other situations, where they’re dealing with an extremely disturbed person, or a homeless person, our expectation is different. There we expect them to step back, to slow down, to get additional resources if necessary. Resolving that situation right away is not what is needed – what is needed is a more balanced slow-down step back and calling in additional resources.”

That might have helped in Chicago too, and there’s choosing which it will be, without a legal standard:

In an email, University of Virginia School of Law professor Rachel Harmon explained that while the Supreme Court’s “whole orientation is on the moment of force,” it has not “precluded looking at reckless conduct by the police officer himself or by the department … that could contribute to making force reasonable.” The matter is, consequently, unresolved, with some circuit courts having ruled that the moments leading up to a deadly confrontation cannot be taken into account, and other circuit courts saying they have to be. Even within the 6th Circuit, whose jurisdiction includes Ohio, rulings are split, with one decision, from 2008, concluding that “where a police officer unreasonably places himself in harm’s way, his use of deadly force may be deemed excessive,” and another, from 2007, saying that precedent “instructs us to disregard … events [leading up to a killing] and to focus on the ‘split-second judgments’ made immediately before the officer used allegedly excessive force.”

The prosecutors in the Tamir Rice case clearly favored the latter interpretation – in fact, they cited it in their presentation today. Nevertheless it’s an undeniably confusing state of affairs that leads to inconsistent application of the law, and some policing experts would like the Supreme Court clarify the matter.

Good luck with that:

Maybe the Supreme Court will do that, someday. For Rice and the many other civilians who have lost their lives as a result of officer-created jeopardy, it will be too late.

In the meantime, while we wait, Jamelle Bouie suggests this:

Strip away the rhetoric, and McGinty has made a clear statement about police conduct: If police perceive a threat to their lives then they’ve de facto justified their actions regardless of context, even if it ends with taking the life of a child. That includes situations like the Rice shooting, where police chose to create a confrontation, rather than manage an encounter.

More broadly, police are empowered to take control of all situations by any means necessary, even those that aren’t criminal. They have no obligation to survey a situation to seek the least violent resolution. Taken together, these prerogatives – established time and again, by departments across the country – encourage police to use lethal force as the first resort.

That seems to be the case, and Bouie doesn’t like it much:

It’s tempting to see this with sympathy. Police, after all, are just ordinary people. They want to go home to their friends, partners, and children. Blue lives matter, goes the mantra, police have a right to go home safely. This is true, but only to an extent. Part of policing is risk. Not just the inevitable risk of the unknown, but voluntary risk. We ask police to “serve and protect” the broad public, which – at times – means accepting risk when necessary to defuse dangerous situations and protect lives, innocent or otherwise. It’s why we give them weapons and the authority to use them; why we compensate them with decent salaries and generous pensions; why we hold them in high esteem and why we give them wide berth in procedure and practice.

We may have to rethink that:

What we see with Tamir Rice – and what we’ve seen in shootings across the country – is what happens when the officer’s safety supersedes the obligation to accept risk. If “going home” is what matters – and risk is unacceptable – then the instant use of lethal force makes sense. It’s the only thing that guarantees complete safety from harm.

It’s also antithetical to the call to “serve and protect.” But it’s the new norm. And worse for any accountability, it sits flush with our broad sympathy with police in the courts of law and public opinion. So that, when police kill someone in this relentless drive to reduce risk, it’s almost impossible to hold officers accountable, barring incredible circumstances. The public just accepts that this is what police had to do. (It doesn’t help that prosecutors rely on police officers to build cases, a strong incentive toward leniency.)

Given this status quo, Tamir Rice – his shooting and the officers’ acquittal – is inevitable. Indeed, it’s almost certain to happen again, since the system isn’t equipped to push back on these new norms of policing and the extraordinary benefit of the doubt that police receive.

So we are where we are:

Unaccountable lethal force defines contemporary law enforcement, at least for black Americans and other minorities, and barring a sea change in attitudes among the majority of Americans, there’s little reason to think that will change.

But it could change:

Changing this is in the best interest of police officers. Yes, abandoning “safety at all costs” means accepting additional risk. But it also means an emphasis on de-escalation in policing, which – in communities that need good policing – engenders more trust for police departments. With more trust comes more community cooperation and more resources for solving crime. The same is true for more and greater accountability. In the long run, both create safer environments for citizens and police – which, I hope, is what we all want.

So, when Rahm Emanuel gets back from sunny Cuba, will he suggest abandoning “safety at all costs” policing? That seems unlikely. The police union would have his hide. Those who see black folks as inherently dangerous and quite scary would run him out of office. And more young black men will die, until they and their families and their friends, some of them white, say “no more of this” and demand that our police serve and protect all of us, no matter how hard the job. There are other jobs, after all. Auto repair is relatively risk free. They could do that.