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.

Tuesday, March 27, 2018

This has to stop

It just keeps happening. Faster than we can learn the names.

Stephon Clark. Murdered in his own back yard in Sacramento. Holding a super threatening cell phone.

Danny Ray Thomas. Gunned down in the middle of a Houston street in broad daylight while he was clearly in a state of great emotional distress and in need of help and understanding.

And so many others, some whose names we've already let slip our minds despite our best efforts to remember. We try to remember, but there are just so damn many of them. Unfortunately, in so many of these awful cases of police slaughtering black men in our streets, the name of the victim has been surpassed by so many new names, we barely notice when the authorities quietly announce that there will be no charges or other repercussions for the murderers. I mean officers of the law.

As we learned today, the officers who murdered Alton Sterling will face no charges. Because of course they won't. Because we long ago decided that officers can act as judge, jury, and executioner based on their own fear, as long as its reasonable. But we long ago decided to accept it when they say they acted based on their own fear and that fear was reasonable no matter what. And, of course, we long, long, long ago decided that it's inherently reasonable to fear black men.

This has to stop. It has to stop. We have to make it stop. And we can. We the people actually have the power to make it stop. That's the thing that so many people don't seem to get. The police and prosecutors don't get to dictate to us the rules by which they do this job we pay them for. We can tell them this isn't acceptable. We have that power. It's way too many forgotten names past time for us to use that power.

I don't have any words of wisdom or ideas for how to make this stop. I'm too tired to fight right now. I'm just sick to death of trying to remember these names. There need to be no more names for me to try to remember.

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