1. Special, Independent Prosecutors.
It is a national scandal how rarely American police officers are charged, indicted, and prosecuted for fatally shooting, or otherwise killing, suspects or persons in their custody. The scale of police homicide has not been well documented in the U.S., but two major newspapers in 2015 tracked the number of deaths at the hands of police nationwide. The Washington Post determined that 984 people were shot to death by police; one out of four victims (24.6%) was mentally ill. (See http://www.washingtonpost.com/graphics/national/police-shootings/.) The Guardian documented 1136 deaths, including fatal shootings, beatings, and other deaths in custody. Of this total, one out of five victims (19.6%) was unarmed. (See http://www.theguardian.com/us-news/ng-interactive/2015/jun/01/the-counted-police-killings-us-database.)
Most deaths at the hands of police, including the deaths of unarmed and mentally ill persons, are never punished in any way. An average of 5 officers per year have been indicted nationally on felony charges over the past decade, according to The Washington Post; and only 11 officers were convicted in literally thousands of fatal shootings by police. In Dallas, Texas, there have been no charges, indictments, or trials of Dallas officers involved in fatal shootings since 1973, despite hundreds of official homicides over the past 40-plus years. (For national figures, see http://www.washingtonpost.com/sf/investigative/2015/04/11/thousands-dead-few-prosecuted/ and http://www.washingtonpost.com/sf/investigative/2015/12/26/a-year-of-reckoning-police-fatally-shoot-nearly-1000/.)
It is a very uncommon district attorney or grand jury that will bring charges against a police officer in fatal officer involved shootings (OIS) or other fatal encounters. The indictments against Baltimore officers in the death of Freddie Gray represent an exception to the usually cozy relationship between district attorneys, grand juries, and local police departments. In fact, in every other type of criminal case, these entities work hand-in-glove to obtain guilty pleas or convictions for those charged with a crime. In order to successfully try a case, district attorneys need the cooperation of local officers, need them to be credible witnesses, need them to apprehend suspects, develop evidence, etc. But when the officer who is usually the DA’s partner is himself involved in a homicide, the system cannot and does not function properly, i.e., it produces no trial in a serious case where the facts are disputed by a victim’s family, or where a videotape or eyewitnesses are in conflict with the officer’s version of events. Moreover, local police unions, associations, and fraternal orders often make campaign contributions to the DA’s election campaign, which undermines public trust in the impartiality of the system. Local grand juries, which formally produce indictments or not, generally operate in secrecy, further undermining public confidence in the process.
For these reasons, and given the documented historical lack of prosecutions in police homicide cases, MAPB believes that the best way to investigate and prosecute OIS cases is through special independent prosecutors appointed through the U.S. Attorney’s office in a particular region. In the same way that the federal government acted to remedy local voting and civil rights violations in the 1960s, a federal response is required today to address the major civil and human rights violations represented by fatal police shootings. In the same way that embezzlement of public funds by an elected official is different than stealing from a private business, a police homicide is unlike any other murder: the officer is acting in the name of the public. When a fatal OIS occurs, the officer may have acted in accordance with the public trust and authority he has been granted – or the officer may have broken the public’s trust, abused his authority, and in fact committed murder. The typical police internal affairs investigation, district attorney review, and grand jury deliberations are not adequate to determine guilt or innocence in this atypical context at the very heart of the criminal justice system. In California, the prosecution of officers in OIS cases was recently removed from grand juries altogether.
Police association campaign contributions and campaign volunteers: The atmosphere surrounding political contributions since the Citizen United decision is one of very ineffective limits and reporting requirements. But the campaign contributions of police associations, unions, and fraternal orders cry out for special attention. Employees of the FBI are prohibited from partisan political activity, as are many other classes of federal employees, under the Hatch Act. MAPB believes that local law enforcement personnel should be restricted in the same way that FBI employees are restricted from partisan political activity.
2. Timely Drug Testing of Police Officers.
Random, periodic testing: All police personnel, from the file clerk to the uniformed officer to the undercover officer to the chief, should be periodically tested for illegal drug use, with random testing of all personnel at least annually.
Testing of officers in OIS cases: Officers who discharge their weapon, or use significant non-deadly force (e.g., Taser, club), against a suspect or person in custody should be drug tested within one hour of the incident. The results of this test will address the key issue of an officer’s state of mind upon the use of excessive or deadly force against a member of the public Such tests are routinely done on the person shot or otherwise injured by an officer, and the results are quickly released and publicized in the negative portrayal (i.e., if the test is positive) of the victim in the media. An officer’s drug use is no less relevant for understanding what actually happened in an OIS, and should be released forthwith.
Reporting of prescription drug use: Police officers taking psychiatric drugs should be required to provide a list of their current medications to the department’s personnel office. Prescription drug abuse is a growing nationwide problem, and there is no reason to believe that officers are different from the general public in their potential for misuse of prescription drugs.
There have been numerous reports in recent years of police officers using anabolic steroids and other performance enhancing drugs. (See http://abcnews.go.com/US/story?id=3745740&page=1 and http://www.dallasnews.com/news/crime/headlines/20130612-arlington-officer-accused-of-buying-steroids-and-helping-supplier-spot-police-surveillance.ece.)
3. Psychological Evaluation and Cultural Competence of Officers.
All new hires should be subject to a complete psychological evaluation, which includes an officer’s attitudes and emotions concerning people of different cultural, linguistic, national, religious, and ethnic backgrounds, and people of different gender and sexual orientations. All officers should receive periodic “cultural competence” training, at least one session/course before assuming regular duty and at least once a year thereafter as part of their continuing education.
4. Evaluation and Status of Officers in OIS Cases:
Psychological evaluation: In the aftermath of an OIS, each officer discharging a weapon or witnessing a weapon discharge should undergo a complete psychological evaluation within 30 days of the incident and before returning to duty.
Officers suspended after shootings: Officers connected to an OIS should be taken off patrol duty, or reassigned, and required to turn in their weapons until the conclusion of all investigations into the incident. In recent cases of fatal shootings in Dallas, officers were returned to armed patrol before the autopsy was even released (killings of Jason Harrison in June 2014 and Andrew Gaynier in August 2014; both victims were shot multiple times and in the back by Dallas police officers. See http://crimeblog.dallasnews.com/2014/10/autopsy-unarmed-man-fatally-shot-by-dallas-police-had-meth-heroin-thc-in-system.html/ and http://crimeblog.dallasnews.com/2014/07/activist-group-calls-for-dallas-police-to-release-video-showing-mentally-ill-man-getting-shot.html/.)
Officer statements to investigators after shootings: Officers connected to an OIS should be treated as any suspect or witness in the aftermath of a homicide or attempted homicide. There should be no special consideration of officers in this aspect of the investigation.
In Dallas, for example, officers are by policy granted 72 hours before making a statement, in which time they are allowed to view any videotape of the incident and statements of other witnesses. This policy, adopted in November 2013 is the direct result of a Dallas officer’s statement in the non-fatal shooting of a mentally ill man, Bobby Bennett, in October 2013 – a statement that was proven false by a witness’s phone video of the incident. (See http://www.dallasnews.com/news/metro/20131127-chief-david-brown-quietly-changes-a-police-shooting-investigations-policy.ece.)
5. Compensation of Victims.
Most citizens are surprised to learn that generally no help is provided to the victims of police brutality or their families in the event of a fatal police shooting. Families are typically left on their own to cope with funeral expenses, recovery of victim’s personal property and clothing, damage to their residences, official attacks on their loved one’s reputation – all in addition to coping with their grief and loss. They may not be eligible for victim compensation funds available to others damaged by crime. For example, in Texas, police officers are eligible for compensation from the crime victims program, but benefits can be denied “if the behavior of the victim contributed to the crime” – which, given the usual police version of events, is likely to be the official determination. (See https://www.texasattorneygeneral.gov/cvs/crime-victims-compensation-who-is-eligible.) Victims of crimes committed by police officers should be eligible for compensation just as other victims of crime are. A victim or surviving family may, of course, pursue damages in court against officers for wrongful death or injury.
6. Body Cameras for All Police Officers.
Every police department in the United States should be required by federal law to provide body cameras for all officers and other personnel that encounter the public. Officers should by law be prohibited from disabling their cameras during any encounter with the public, including routine traffic or pedestrian stops; and there should be serious penalties, including termination, for disabling a body camera while on duty. Body cameras may not prevent misuse of deadly force, but they certainly are a significant tool in the investigation of deadly force incidents.
7. Deadly Force Training Approved by U.S. Justice Department.
In order to protect the safety and lives of both the public and police officers, all police deadly force training should be approved and authorized by the U.S. Dept. of Justice. Commercial “training” vendors may emphasize “shoot first” and other tactics that reinforce the militarization of police work and downplay other approaches, such as de-escalation, which can enhance community policing and minimize shooting incidents. Local police departments should be able to engage training only from vendors approved by the Justice Dept.
8. Evaluating Federal Civil Rights Violations by Police Officers.
The FBI reports that in 2012, 42 percent of the FBI’s total civil rights caseload involved “color of law” issues, i.e., misconduct by police of the authority granted to them as public officials. Cases included excessive and deadly force, sexual assaults, false arrest and fabrication of evidence, deprivation of property, and failure to keep from harm. (See https://www.fbi.gov/about-us/investigate/civilrights/color_of_law.)
But winning a civil rights conviction against police officers is extremely difficult. In an infamous Dallas case, the Justice Department declined to bring violation of civil rights charges against the Dallas officer that in 1973 fatally shot an unarmed 12-year-old boy, Santo Rodriguez, who was in handcuffs and seated in a police car. More recently, Justice Dept. officials did not bring civil rights charges against the officer who killed Michael Brown in 2014.
MAPB urges the Attorney General to order a comprehensive review of all cases of fatal police shootings of unarmed victims over the past decade in order to evaluate the criteria used in the decision to bring charges or not. For future cases, MAPB urges the AG to establish a special unit to investigate complaints against police officers in deadly shooting cases and in cases of alleged use of excessive, but non-fatal, force.
9. Federal Database of Problem Officers.
Police officers with multiple citizen complaints and with a history of using excessive force should be tracked by a national database in the Justice Dept. Such a database will protect potential employers of these officers, who may move to another department when their troubles mount in a particular jurisdiction. This database should also include officers on the so-called “Brady Lists” whose credibility is so doubtful that local prosecutors will not use them in court. In April 2015, the Austin American Statesman published the Brady list for Dallas County, a list of 192 officers who had a record of making false statements, authorizing an illegal search warrant, drug abuse, and assault, or else had a pending indictment of their own. Involvement or testimony in court of officers on the list is considered exculpatory information and must be disclosed to defense attorneys. (See http://investigations.blog.statesman.com/2015/04/16/dallas-county-wont-release-bad-cop-list-so-we-will/.)
For information, please contact:
Mothers Against Police Brutality