Monday, April 2, 2018

This won't help make it stop

Many factors contribute to our police brutality problem. Systemic racism, widespread gun ownership, fear. But one factor that doesn't get talked about enough is the way our courts and prosecutors are overly deferential to police. All a police officer has to say is, "I had a fear for my safety."

Those magic words almost always work to get a prosecutor to say the case is unchargeable, as in the case of Alton Sterling. No charges were filed even as video showed the police officer threatening to kill the man, which would seem to show something criminal attorneys call premeditation and intent. Or to get at least one juror to refuse to convict, as in the death of Walter Scott. A juror steadfastly refused to vote to convict that police officer even as video showed the police officer shooting a man in the back as he ran away.

And they work to get a majority of the United States Supreme Court to confer qualified immunity on a police officer, as in today's case Kisela v. Hughes. Police responded to a call of a woman acting erratically, hacking at a tree with a knife. The majority calls it a large knife while Justice Sotomayor, in dissent, calls it a kitchen knife. I picture one of my standard chef's knives I use almost daily. Upon arrival, police saw a woman holding a knife facing another woman, about 6 feet apart. They saw no threatening movements, no brandishing of the knife, heard no threatening words. They asked the woman to put the knife down, without identifying themselves as officers, but it didn't appear she was even aware of their presence. Two of the responding officers saw no immediate threat. But the third opened fire. Through a chain-link fence.

The victim, who fortunately did not suffer life-threatening injuries despite being shot 4 times, sued the police officer, alleging a violation of her Fourth Amendment rights. The district court granted summary judgment to the officer and dismissed the case. Now, that sentence means a lot to me, but I went to law school. Summary judgment is when the district court rules for one party in a civil suit (usually the defendant) without trial. The standard is supposed to be that the court views all facts in the light most beneficial to the other party, or that the facts are not in dispute, and viewing the facts that way, there is still no way that party can prevail. It is supposed to be a very stringent standard, aimed at claims that fail legally, not claims that fail if a finder of fact believes one party's version of the facts over another's.

The Ninth Circuit Court of Appeals looked at the facts of this case and found this wasn't a proper vehicle for summary judgment. That court reversed the district court and remanded the case for a trial, where a jury would decide whether the officer's actions had been reasonable. It was hardly a radical decision from that court to say, you know, if she was just standing there holding a common kitchen tool at her side, not screaming or seeming agitated, not threatening anyone, the woman she was talking to didn't feel threatened, she may not even have been aware the officers were there, and the other two officers didn't see any reason to shoot, maybe a jury should get to decide whether the officer's actions were reasonable.

But the Supreme Court thought that was unreasonable. The high court reversed the Ninth Circuit's reversal of the district court's summary judgment. So the victim doesn't get a trial. A jury doesn't get to decide if the officer's actions were within the boundaries of what we want our police officers to do.

And so police officers who shoot people will continue to face very little scrutiny. It's not even that they don't face consequences; they don't face scrutiny.

It doesn't have to be this way. There is nothing in the text of the Fourth Amendment that says police officers can't be sued in civil court for shooting people. But 7 members of the nation's top court choose to see it this way, so here we are for now. We have a lot of work to do.

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