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.

 

Worst of the Month — January

So for January we have selected the case of Philippe Holland, who was an innocent man shot by Philadelphia police.

According to news reports, here is what happened: Holland was a college student who worked part-time delivering take-out food.  Two  years ago, he was delivering a cheeseburger to a house when two officers in plain clothes responded to the area because of a report about gunshots.  Holland says he thought he was about to get robbed because the officers approached him without identifying themselves.  Frightened, Holland jumped in his car and tried to drive away quickly.  The police officers opened fire and Holland now has a permanent seizure disorder and has bullet fragments in his brain.

Last month, the city agreed to pay $4.4 million to settle a lawsuit brought by Holland, reportedly the largest settlement for a police shooting in the city’s history.

The officers involved in the shooting–Kevin Hanvey and Mitchell Farrell– claim that they feared for their lives and thus had to shoot.  They were not prosecuted.  Even after the passage of two years the department says their discipline is yet “to be determined.”  Hmm.

Tulsa Officer Charged with Manslaughter for Killing Terence Crutcher

Late Thursday afternoon, the Tulsa County, Oklahoma district attorney announced that he filed a charge of first-degree manslaughter against Officer Betty Shelby for fatally shooting Terence Crutcher.

The shooting has garnered national attention as it was captured on both dashcam and police helicopter film. Despite the video evidence, the case is hardly open-and-shut win for the prosecution here. The law is generally on the side of the police officers, as I explained earlier this week at Timeline:

Despite repeated public outcry in highly publicized cases like this one, data shows that police officers are in fact very rarely charged or successfully prosecuted for on-duty shootings or other uses of force. According to aWashington Post investigation, between 2005 and 2015, just 54 officers were prosecuted for shootings. Assuming that the almost 1,000 police shooting deaths recorded in 2015 wasn’t a statistical outlier, that’s 54 cases out of nearly 10,000 fatal shootings.

[…]

Put simply, a fearful police officer is a very dangerous one. If he can articulate a plausible narrative that he believed he or his life was in danger — often involving the suspect making a “sudden” or “furtive movement,” or “reaching for his waistband” as if for a gun — any lack of actual danger or dangerous weapon is not relevant to the officer’s legal culpability.

The prosecutor apparently feels confident that he can win or, perhaps, that the political consequences of a tried and failed prosecution outweigh not bringing charges at all. As the nation saw in the trials of the officers who killed Freddie Gray in Baltimore, simply bringing charges is no guarantee of a conviction.

We’ll keep an eye on this case, as well as the developing stories in Charlotte-Mecklenburg, North Carolina.

You can read the whole Timeline piece here.

 

Is There a War on Police?

Heather MacDonald, who is based at the Manhattan Institute, has a new book out titled, The War on Cops.  Is there a war?  John Stossel notes that the “war on cops” narrative is overblown: “‘War’ means killing.  The attack on officers in Dallas was despicable, but, even including those five deaths, it is still safer to be a cop today than in years past.  According to FBI records, 2015 was one of the safest years ever recorded.”

MacDonald seems to recognize that.  Her primary aim is to push back against the critics of the criminal justice system.  She says we need more proactive policing and stricter incarceration practices to protect our cities from what she calls “mass destruction.”  I have a review of the book over at Reason and outline several problems with MacDonald’s thesis.

Here’s an excerpt:

In 2013, a federal district court ruled that the NYPD’s [stop & frisk] tactics were unconstitutional. The court noted that cops were evaluated by their “productivity”—that is, finding contraband and making arrests. Officers were not disciplined for stops that turned up nothing, and innocent persons had no practical legal recourse for brief detentions and patdowns of their clothing. Thus, the police had job pressures to stop a lot of people, suspicious or not, to see what might turn up. That helps to explain why, of the 4.4 million police stops between January 2004 and June 2012, there was no further action taken, such as an arrest or summons, in a whopping 88 percent. Mac Donald does not address these points.

That 88 percent might actually be an underestimate, because the police do not necessarily file the proper paperwork where a questionable stop turns up nothing. Recall that when NYPD officers roughed up former tennis pro James Blake last year in a case of mistaken identity, they did not report the encounter. As far as police records showed, it never happened. Fortuitously, the incident was captured by a hotel security camera and Blake’s wife urged him not to drop the matter, arguing that it would highlight a type of abuse that black men had been complaining about.

Read the whole thing.  Related items here, here, and here.

The Philando Castile Shooting

Philando Castile was shot and killed by a police officer from St. Anthony, Minnesota, a suburb of the Minneapolis-St. Paul metroplex. According to the video recorded by his girlfriend who was in the car when he was shot, Castile was legally carrying a firearm and was shot after telling the police officer about that firearm.

This case raises questions about police tactics and training. Moreover, that Mr. Castile was black and pulled over for a minor violation that led to his death raises inevitable questions about racial bias in both the initial stop and fatal escalation.

It is too early to know exactly what happened before the camera was turned on, but Mr. Castile’s death is undoubtedly one more in a long list of tragedies that have come at the hands of police officers.

Keep an eye on this space for updates in this case.

The Alton Sterling Shooting

Overnight, cellular phone video of a Baton Rouge, Louisiana officer shooting and killing Alton Sterling went viral. Sterling, who was black, was on the ground when he was shot several times in the back and chest. Protests have started in Baton Rouge and the outrage is palpable all over social media.

Media reports are still coming in, and they are already bringing upsetting, if somewhat predictable, news:

Officers likely had not been interviewed by investigators, as the agency typically gives its lawmen 24 hours before questioning them after this type of incident, he said.

“We give officers normally a day or so to go home and think about it” before being interviewed, [BRPD spokesman Cpl. L’Jean] McKneely said. He said being part of a shooting is a stressful situation that can produce “tunnel vision” for the officers involved and might not lead to the best information.

These “cooling off” periods are common in many departments, and sometimes mandated by legislation known as Law Enforcement Officers’ Bills of Rights. People who are not officers who shoot others, whether in cold blood or self-defense, are not automatically given such grace periods before answering questions. At a time when police need the community’s trust and cooperation most, such double standards can aggravate community tensions, making situations worse after tragic events.

But there is more:

Both officers at the store were wearing body cameras and cars had dash cameras, McKneely said. Muflahi said police also took surveillance footage from his store and seized his entire video system.

McKneely said both body cameras came loose and dangled from the officers’ uniforms during the incident.

Hopefully, the video from all available sources can supplement the cell phone footage to make clear what prompted the officer to shoot what appeared to be a prone man.

We will keep an eye on this case as the story develops.

More Police Transparency, Not Less

Yesterday, the Philadelphia Inquirer published a piece I wrote about pending legislation in Pennsylvania to anonymize officers under investigation for use of force. The proposed legislation is supposed to increase officer safety. A snippet:

Of course, officer safety is important. But there is scant evidence that specific police officers or their families – in Pennsylvania or elsewhere – have been targeted and harmed by criminals because they were named in use-of-force incidents. (While police officers have been the tragic victims of ambushes, including in Philadelphia, the indications are that officers are, as New York City Police Commissioner William Bratton said in 2014, “targeted for their uniform,” not their actions.)

At best, these bills provide a remedy for something that has not been proven to be a problem. At worst, they protect officers with documented histories of violence and, ironically, give the majority of officers a bad rap.

Internal and criminal investigations are by their nature kept from the public eye, and for good reason. But the community should know if its public servants are under investigation for inappropriate violence and who they are. If one officer out of a thousand does something bad, but no one can say who he is, all officers fall under suspicion because the so-called bad apple is indistinguishable from everyone else.

As we saw in the John Geer shooting in Virginia, when police withhold information from the public about inappropriate uses of force, silence can seem like a cover-up. States and police agencies should look for ways to increase transparency after questionable uses of force, not put up new barriers to information.

Read the whole thing here.

Guilty Plea in John Geer Case

Jury selection was scheduled to start today in the trial of former Fairfax County, Virginia officer Adam Torres for the 2013 shooting death of John Geer. Torres instead pled guilty to involuntary manslaughter.

As regular readers of policemisconduct.net may recall, Geer was killed while standing inside the front door of his home with his hands up. The Fairfax County police had been called to the home because of a domestic disturbance.

The Washington Post’s  Tom Jackman has been diligently covering this case since the shooting. Fairfax authorities were reluctant to release the name or status of Torres, waiting over a year to do so and eventually fire and charge him in the case. The delays and secrecy surrounding the incident led to a Post editorial headline that declared the case “looks unmistakably like a police coverup.”

Today’s plea agreement included a recommended sentence of 12 months—Torres is currently held in jail without bond—but Judge Robert J. Smith rejected that sentence and ordered a sentencing recommendation memo and a hearing for June 24.

We will continue to follow this case as it moves to the sentencing stage.

Read Jackman’s full write-up of today’s plea and the case history here.

Washington Post Tallies Fatal Shootings Where Officers Are Not Identified

From the Washington Post:

Nationwide, 210 people were fatally shot last year by police officers who have not been publicly identified by their departments.

In 2015, police in the United States shot and killed 990 people, according to a Washington Post database of fatal police shootings. The vast majority of those killed by police were armed with guns or had attacked or threatened officers or civilians. The Post is continuing to track fatal shootings in 2016, recording more than 250 through March. The Post is also filing open-records requests seeking additional information about each shooting, including information about the officers involved, data that is not tracked by any federal agency.

For 2015, reporters obtained the names of officers responsible for 780 of the 990 shootings. In about 600 shootings, officers’ names were disclosed by police departments in news reports. In a handful of cases, names came to light through lawsuits or leaks to the news media. Where the names remained unknown, The Post contacted the departments and requested the officers’ identities.

In 145 fatal shootings, the departments declined to release the names to The Post, citing pending investigations, state or federal records laws, agreements with police unions or department policies. In another 65 fatal shootings, the departments did not respond to multiple requests for information.

Former Philadelphia Police Chief Charles Ramsey is interviewed and he notes that a double standard is often employed.  When the shooting death is deemed heroic, the officer is identified.  When the shooting is questionable, the officer is not identified.  Read the whole thing.

For additional background on transparency and policing, go here.