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‘The First Priority is to do Justice’

From Andrew McCarthy, former federal prosecutor, writing over at National Review Online:

It is not possible to have the rule of law unless those charged with executing the laws are held accountable when they are derelict. And it is not possible to have accountability when the processes for discovering derelictions do not work.
Those processes have to be mended. It is beyond time to reinvigorate the principle that law enforcement’s first priority is to do justice. Not only must government officials follow the rules; their adherence must be monitored — not to harass the law-abiding but to root out the corrupt. Examples must be made of those who abuse their powers. It is not sufficient that the system achieves justice most of the time.
Read the whole thing.  Nice to see this from the Right.  More please.

A New Report from the American Constitution Society Explores Barriers to Police Accountability

ACS has released a new issue brief, authored by Kami N. Chavis and Conor Degnan, exploring the difficulty in holding police officers accountable in excessive force cases.

The report focuses on the conflicts of interest that confront prosecutors who bring charges against officers they work with, the difficulty of overcoming qualified immunity in excessive force lawsuits, and the federal government’s reluctance to intervene in police departments with patterns and practices of abuse.

This Issue Brief summarizes some of the traditional mechanisms for holding police accountable for misconduct, offers a critique of each, and ends with suggestions for the future of police accountability. Part I focuses on some of the legal and structural impediments to police accountability including the inherent conflicts of interest that frequently prevent local prosecutors from prosecuting police officers accused of using excessive force. Part I also discusses how the doctrine of qualified immunity shields officers from civil liability when a suspect is harmed or dies in police custody. Part II explores how the Department of Justice (DOJ) has failed to properly leverage its authority to investigate patterns or practices of unconstitutional policing to increase police accountability. Part III discusses potential solutions, including the impact police-worn body cameras, prosecutorial independence, and increased civil oversight may have on police accountability.

The full report can be found here.

National Police Misconduct Newsfeed Daily Recap 4/21/17

Here are the seven reports of police misconduct tracked for Friday, April 21, 2017:

  • Rochester, New York: Two officers were suspended after the use of force against a man who was riding a dirtbike. At least one body cam was not activated during the incident. ow.ly/ZZqF30b33H7
  • Southington, Connecticut: An officer was suspended 30 days for letting his intoxicated girlfriend drive. She caused a fatal accident and was criminally charged in the case. ow.ly/mjq630b34JN
  • Dallas, Texas: An officer was charged with burglary and stalking for an incident against his estranged wife in October. ow.ly/XGuD30b3cnv
  • Colorado Springs, Colorado: The City settled a racial profiling lawsuit for $212,000. ow.ly/yv9F30b3cUP
  • Parma, Ohio: A now-former officer pled guilty to identity fraud and obstruction charges for lying to officials while at a casino off duty. He and the woman he was with were using false identities when they cashed out. ow.ly/Wyrw30b3dny
  • Update: Federal Bureau of Investigation (Las Vegas) (First reported 12/21/16): A now-former agent was sentenced to 135 days in jail and probation for the off-duty shooting in the direction of Grand Rapids, Michigan police. No one was injured during the incident. ow.ly/JLSc30b3dOG
  • Update: Delaware County, Oklahoma (First reported 1/21/16): A now-former deputy was sentenced to three years, suspended, and ordered to register as sex offender for propositioning a teen. ow.ly/q5jy30b3eQK

Police Shooting Case at Supreme Court

Today, the Supreme Court declined to review an appeal in the case of Salazar-Limon v. City of Houston  (scroll down). Of course, the Court declines most appeals and can only review a small fraction of the cases brought to it.  What is noteworthy about this case is the dissent filed by Justice Sotomayor.  She wanted to explain why the Court’s denial was a mistake.

The case involved a police shooting in Houston.  The man, Ricardo Salazar-Limon (SL), survived the shooting and later sued for excessive force.  Unfortunately, his lawsuit was thrown out before there was even a trial.  That was Sotomayor’s objection–the case was improperly decided by a judge before trial when a jury should have heard the controversy.  Salazar-Limon was shot by the police and now the government has tossed away his legal claim of excessive force.  By allowing the lower court ruling to stand uncorrected, the law is now tilting against the victims of police misconduct and puts dangerous power in the hands of police.

Here’s the background: SL was driving on a Houston freeway around midnight.  He had been drinking.  Officer Chris Thompson pulled him over, and asked for his license.  Thompson checked for warrants, but there were none.  SL was asked to exit his vehicle –probably for a sobriety test.  It seems that when Thompson moved to put handcuffs on SL, things escalated fast and their stories diverge.  SL says he started walking away, and that he was shot in the back just seconds after Thompson had called out to him to stop.  Thompson claims that SL responded to his order by turning around and making a motion toward his waistband as if he were about to draw a gun, so Thompson, who had already drawn his weapon, shot SL.   SL had no gun.

As noted, an excessive force claim was filed.  The police officer asked the district judge to resolve the case in his favor prior to trial, arguing that he was immune under the doctrine of qualified immunity.

When the facts are disputed, cases typically go to the jury.  When there is no real factual dispute, a judge might decide the case based on the law.  That’s what happened here, but it remains controversial.  Officer Thompson and the lower courts took the position that since SL did not deny reaching for his waistband, the court could decide the case without a jury.  In that situation, the courts said Thompson would have been justified in using deadly force–even if no gun is found later.  The perceived threat is sufficient.

Sotomayor said the courts were making an awful mistake.  SL’s legal claim did dispute the facts–that he did not turn to Officer Thompson till he was shot in the back.  SL is basically saying that he got shot for disobeying an order given just seconds earlier and that’s excessive force.

Sotomayor isn’t saying that Officers Thompson was wrong to shoot.  She is making a more modest argument.  The jury should have heard both sides and then decided the case after hearing all the evidence.  She believes the courts are deciding too many of these kinds of cases prematurely and that the victims of police misconduct are having their claims improperly rejected.  She’s right.  Alas, only Justice Ginsburg joined Sotomayor’s dissent.  Still, the dissent raised the profile of the problem and will help ignite a debate in this important corner of the law.

We should note that Sotomayor cites this article by Radley Balko that collects cases of persons shot by police where the justification was “reaching for the waistband” and it turned out there was no gun.  That is just too thin a basis for the use of deadly force on people.  To be clear, the officer could draw his weapon and he could take cover and issue more commands to a suspect to show his hands.  But opening fire without seeing a gun in such circumstances seems wrong.  At the least, the jury should have decided whether the shot was truly justified.

 

National Police Misconduct Newsfeed Daily Recap 4/20/17

Here are the ten reports of police misconduct tracked for Thursday, April 20, 2017:

  • University of Nebraska-Lincoln: An officer was charged with drunk driving off duty and resigned. ow.ly/oAmI30b0ZTM
  • Alamo, Texas: An officer was arrested for felonious assault on a family member. ow.ly/Evxu30b16NT
  • Update: Auburn, New York (First reported 4/3/17): The deputy chief pled guilty to DWI. He was originally charged with aggravated DWI because his BAC level was more than twice the legal limit. ow.ly/tpJx30b17o7
  • Dinwiddie County, Virginia: A deputy was fired and charged with aggravated sexual assault of a child in 2015. He was employed as a law enforcement officer at the time of the offense, but it is unclear which department he was working for at the time. Before coming to Dinwiddie County in 2016, he had been employed by the Richmond and Petersburg police departments. ow.ly/gIw930b18gn
  • Fairfield, Alabama: A detective was placed on leave without pay after a video showed him punch a suspect at a gas station. Previously, he had worked for the Birmingham Police Department, from which he retired. ow.ly/9sQZ30b1ad1
  • Baker, Louisiana: An officer was charged with 16 counts related to doctor shopping for opioids and amphetamines. He resigned. ow.ly/AirJ30b1tB2
  • Frankfort, Kentucky: A detective was suspended six months without pay for alleged sexual misconduct with an informant and withholding evidence.  ow.ly/jALO30b1uh3
  • Update: Montgomery County, Maryland (First reported 6/17/16): An officer pled guilty to attempted child solicitation after being caught in a Prince William County, Virginia sting operation. ow.ly/mRqd30b1uzF
  • Fentress County, Tennessee: A sheriff pled guilty to honest services fraud and civil rights charges. He sexually abused female jail inmates. ow.ly/Qfbz30b1VkL
  • Providence, Rhode Island: A man filed a lawsuit against police after he was acquitted of assaulting the officer who bloodied him. He alleges that he was charged with resisting arrest and assaulting an officer to cover up for the abuse he suffered. The officer in question is over six feet tall and the defendant-turned-plaintiff is 4’11”.  ow.ly/NMZi30b1vr2

National Police Misconduct Newsfeed Daily Recap 4/19/17

Here are the 15 reports of police misconduct tracked for Wednesday, April 19, 2017:

  • Update: Woonsocket, Rhode Island (First reported 4/4/17): A suspended officer pled guilty to assaulting a high school student while volunteering at school. He is still employed at the department despite his conviction for abusing his little sister several years ago. ow.ly/w3N930aYQA3
  • Lake County, Minnesota: A deputy was placed on leave after a fatal crash that resulted from a high-speed chase that crossed the county line. ow.ly/dnpH30aYXE9
  • Houston, Texas: An officer was arrested on a methamphetamine possession charge. Reports conflict on whether the man he was arrested with was a roommate or romantic partner, who was charged with selling various drugs, but the officer admitted to using meth and other drugs himself earlier in the day. ow.ly/u7Hn30aZ2ns
  • Portland, Oregon: An officer was arrested for an off-duty DUI ow.ly/MyAm30aZiXZ
  • Austin, TX officer who runs breathalyzer at jail fired for coming to work drunk. Supervisor suspended 60 days ow.ly/QdPe30aZmHN

Utah Peace Officer Standards and Training Council sanctioned six now-former officers from six departments for misconduct. ow.ly/fZ7z30aZn0F:

  • Roy, Utah: An officer resigned and pled no contest for attempting to steal $50 from the scene of a burglary investigation. He was fined and given one year of probation. The POST Council suspended his law certification for two and a half years.
  • Layton, Utah: An officer was charged with official misconduct for using his position as a law enforcement officer to gain entry to a hotel room he believed his girlfriend was in with another man. The POST Council suspended his certification for a year. He was demoted to desk duty and retired.
  • Morgan County, Utah: A now-former deputy had his certification suspended for one year after using a law enforcement database to check-up on people he suspected were involved with his wife.
  • Weber County, Utah: A now-former deputy pled guilty to disorderly conduct for striking his 7-year-old child in the forehead, causing a bruise. His certification was suspended for nine months.
  • Box Elder County, Utah: A deputy admitted to smoking marijuana and eating cannabinoid edibles while vacationing in Colorado, where both the activities are legal. He was fired and his certification was suspended for two years.
  • Brigham City, Utah: An officer lied to investigators about who crashed his car to protect his wife from a DUI charge. He was fired and his certification was suspended for three years.
  • Bexar Co., Texas: A deputy was indicted for oppression and assault for actions against a prisoner in her custody. ow.ly/862G30aZnar
  • Newcomerstown, Ohio: An officer was fired after he admitted he made up the story that he was shot during a traffic stop, prompting a manhunt. Criminal charges are possible. ow.ly/VO2X30aZnRM
  • Colorado City, Arizona & Hildale, Utah: A federal judge ruled that both police departments engaged in widespread misconduct and religious discrimination. Both “sister cities” are effectively run by adherents of Warren Jeffs’ fundamentalist Mormon sect and the judge ruled that the police and other municipal agencies actively violated the civil rights of residents who were not in the sect. ow.ly/P0Fz30aZOVN
  • Clark County, Washington: A detective resigned while he was under investigation for official misconduct. He will not face criminal charges. ow.ly/vkEy30aZo9I

National Police Misconduct Newsfeed Daily Recap 4/18/17

Here are the eight reports of police misconduct tracked for Tuesday, April 18, 2017:

  • Chatham, New Jersey: An internal investigation found that an officer was discourteous and failed to report and record an incident on his body camera during an incident in which he threatened a security guard with a gun, though he did not use excessive force. He was, however, demoted for leaving his fully loaded weapon and law enforcement credentials on a private lawn after a night of drinking. ow.ly/50MU30aWGuG
  • Denver, Colorado: The City recently settled two excessive force lawsuits. One suit was settled for $47,o00 after an officer broke a woman’s wrist during her arrest. Previously, the City agreed to pay $999,999 to the surviving family of a teen who was fatally shot while attempting to flee an officer.  ow.ly/zKeo30aWGSc
  • El Paso, Texas: An officer was indicted for manslaughter for fatally shooting Erik Sanchez in the back in 2015. ow.ly/YlHn30aWUgG
  • Forrest County, Mississippi: A deputy was arrested for sending sexually explicit pictures to a 13-year-old child. ow.ly/HY9X30aWRdb
  • Update: Gwinnett County, Georgia: A prosecutor dismissed 89 cases filed by a pair of deputies who were recently fired for beating a motorist. ow.ly/C7an30aWRCS
  • Austin, Texas: An officer was suspended 15 days for an off-duty road rage incident. ow.ly/ApYZ30aWSa8
  • Waynesboro, Tennessee: An officer was charged with theft and misconduct for pawning department-issued guns. He resigned and was hired by the Wayne County Sheriff’s Department before his arrest. ow.ly/droY30aWSUV
  • Spring Valley, New York: An officer was arrested for DWI and drug possession with a child in the car after being stopped for erratic driving. ow.ly/oDaH30aWTJn

National Police Misconduct Newsfeed Daily Recap 4/17/17

Here are the seven reports of police misconduct tracked for Monday, April 17, 2017:

  • Bexar County, Texas: A deputy was arrested for off-duty DWI. ow.ly/yjKa30aTE0n
  • San Antonio, Texas: Two officers were arrested for DWI on the same day. One rear ended a truck, the other was pulled over for bad driving. Both were off duty at the time of their respective arrests.  ow.ly/t4CM30aTEbG
  • San Juan, Texas: An officer was suspended without pay after he was indicted and arrested for lying to federal investigators. It is unclear what the underlying criminal activity is.  ow.ly/bLXm30aTEj7
  • Lexington, Kentucky: Two officers were suspended for causing traffic accidents while on duty.  ow.ly/6o7z30aTECv
  • Update: Franklin, Indiana (First reported 10/25/16): An officer was not charged by the prosecutors after his felony domestic violence arrest last year. The chief only had the power to suspend him for five days but recommended his termination to the City committee that can terminate him. ow.ly/1Vyi30aTEFi
  • Louisville, Kentucky: Two officers were indicted for sexual abuse while they were involved the police Explorer program. The Explorer program for people in their teens and early 20s who are thinking about becoming police officers. One officer resigned when allegations first surfaced; the other was terminated following the indictment. ow.ly/tBTu30aTER4
  • Roy, Utah: The department is being sued for the fatal shooting of a man who was appearing to flee after a brief peaceful encounter at a convenience store. The police released body cam footage of the incident. Footage does not show any sign of imminent danger to the officers.  ow.ly/7U3q30aTF3h
  • Oceanside, California: An officer was suspended after his arrest for domestic battery. ow.ly/q5F430aTFve
  • New York, New York: An officer was arrested after punching an kicking adult in a home while off duty. She faces an additional charge for doing it in front of young children.  ow.ly/RLwL30aTFKM
  • Denver County, Colorado: A deputy was suspended 10 days for tasing an inmate against policy. A second deputy was suspended four days for verbally abusing an unruly child.  ow.ly/LCiR30aTG10

National Police Misconduct Newsfeed Daily Recap 4/14/17

Here are the eight reports of police misconduct tracked for Friday, April 14, 2017:

  • Adams County, Colorado: A deputy was charged with second-degree assault for pushing a suspect off of a roof. ow.ly/ai5X30aRgMV
  • Gwinnett County, Georgia: Two deputies were fired after being recorded punching and kicking a cuffed suspect in the head while he was on the ground. ow.ly/jNWW30aRh94
  • Mandeville, Louisiana: An officer was fired after being found drunk in her police car while off duty. ow.ly/Tfmn30aRhic
  • Update: East Cleveland, Ohio (First reported 3/6/17): An officer was fired and indicted for sexually assaulting women he pulled over. ow.ly/IZI830aRhyQ
  • Update: Shreveport, Louisiana (First reported 2/16/17): The officer who was charged with accessory after the fact for texting a suspect about a murder investigation has been fired. ow.ly/dWSr30aRi7n
  • Update: Bay County, Michigan (First reported 11/15/16): A now-former deputy pled no contest to tampering for trying to cover up his accidental gun discharge in the school where he was an SRO. The bullet went through a wall and struck a teacher, though without serious injury. If he successfully completes his probation, the felony conviction will be replaced by two misdemeanors. ow.ly/MPMh30aRiLB
  • New York, New York: Two officers were suspended for covering up that a handcuffed suspect had escaped their custody. The incident was brought to light by a bystander’s video of the escape. ow.ly/VLmX30aRkjG
  • Jackson, Mississippi: An officer has been accused of sexual assault. He remains on duty during the administrative and criminal investigations. ow.ly/vK1A30aRZ8t