The black teenager had just reached into his waistband
for what the New York City police officer assumed was a gun. As the officer,
Richard Haste, later told a Bronx grand jury, he thought he was about to die.
In that instant, Officer Haste pictured Thanksgiving,
with everyone gathered around, except him. He imagined his girlfriend walking
their dog, without him, according to an account of the officer’s testimony
provided by his lawyer, Stuart London.
Officer Haste fired a single shot.
But there was no gun in the hand of the teenager,
Ramarley Graham, only a bag of marijuana, which Mr. Graham threw into a toilet
before that single shot killed him. Ultimately, the grand jury did not indict Officer
Haste in the 2012 death of the 18-year-old, illustrating the standard by which
police shootings are typically evaluated for criminal prosecution: What matters
is the perspective of the officer, with an officer’s sense of danger given
significant weight.
The longstanding official deference to the viewpoint
of police officers is enshrined in the laws of some states and Supreme Court
rulings. And the ambush attacks that left eight officers dead in Dallas and
Baton Rouge, La., this month left many in the country with a jarring sense of
the dangers of police work.
But that deference is being questioned in an era when
millions of people are viewing footage of police shootings and making their own
judgments. As more encounters are captured by surveillance systems, bystanders’ cellphones or officers’ body cameras, the public is scrutinizing, case by case, officers’ decisions
to use lethal force. The law’s posture toward the police is being measured
against human lives, with the names of the dead becoming watchwords in the
national debate over reforming the criminal justice system.
Some lawyers and
activists say the legal standards — on top of the
circumstances of individual police killings — have contributed to racial
tensions and the challenges confronting American policing.
“The legal standards we have do not hold police
sufficiently accountable for their conduct,” said Anthony L. Ricco, a New York
defense lawyer whose clients over the years have included both a police officer
accused of killing an unarmed black man as well as a man who murdered an
officer.
Of particular frustration for the movement, organized
under the banner Black Lives Matter, is that the legal standard focuses not on
the guilt or the innocence of the person who is shot but on whether an officer
would have perceived a threat in the encounter. And, some legal experts said,
there is the possibility that racial biases may account for why a particular
encounter felt dangerous. If officers tend to respond more aggressively toward
black suspects as opposed to white suspects in similar situations, Mr. Ricco
said, “we allow this mind-set to become the standard by which we judge these
cases.”
While there have been indictments in a few recent
high-profile killings by the police, like in Chicago and South Carolina, both
of those cases involved video recordings that contradicted officers’ accounts.
Many legal experts
doubt that criminal prosecutions are likely to deliver the
type of reform the Black Lives Matter movement has sought, both because of how
rarely the facts surmount the legal standard and because trials of individual
officers will not necessarily change departmental policies.
Yet in the past two years, starting with the death of
Michael Brown in Ferguson, Mo., and continuing through the death of Philando
Castile this month in Falcon Heights, Minn., the authorities — police chiefs,
mayors and prosecutors — have repeatedly urged local communities to put their
trust in investigations based on the legal standards that give considerable
deference to the officers. In a now-familiar refrain after a new video
recording of a police killing draws nationwide scrutiny, the authorities pledge an impartial and thorough criminal
investigation and beseech the public to be patient. Whatever the outcome, the
authorities’ main message is that the public should “respect” the process.
“That’s the routine over and over again,” said Arminta
Jeffryes, an activist who began protesting the police after a Staten Island
grand jury declined to indict the officer who placed Eric Garner in a fatal
chokehold in 2014.
In the absence of criminal prosecutions, the
frustration of many people is compounded by the sense that police departments
frequently avoid a public reckoning of what may have gone wrong and why.
In some jurisdictions,
including New York City, the details of internal police investigations into
shootings are kept secret.
While police departments sometimes bring disciplinary
proceedings against officers for excessive force, the process can be protracted
or opaque.
The case of Officer Haste, who shot Mr. Graham in
2012, is instructive. The officer was initially charged with manslaughter, but
a judge dismissed the indictment after concluding the grand jury had received
improper instructions that led the panel to give insufficient weight to how the
encounter appeared from Officer Haste’s perspective. A second grand jury
declined to indict Officer Haste.
This year, after a long review, the Justice Department
also declined to seek charges. But Officer Haste still faces departmental
charges in a disciplinary proceeding, which was delayed pending the criminal
investigations. When the disciplinary proceeding will happen is unclear.
In the meantime, the city
agreed to pay $3.9 million to Mr. Graham’s family.
While police disciplinary
cases can be drawn out over many years, some cities are taking the opposite
approach in lawsuits after high-profile killings. Municipalities are expediting
their resolution, settling them before depositions are taken or much evidence
is turned over. Sometimes cities even pay before a lawsuit is filed, as New
York did when it paid $5.9 million to Mr. Garner’s family. With claims being
settled so quickly, the circumstances of some deaths receive little public
accounting.
“The police officer usually escapes criminal
accountability, a lawsuit is settled providing some monetary compensation and
we move on,” said Representative Hakeem Jeffries, a Democrat who represents
parts of Brooklyn and Queens and is on a congressional task force on
police-community relations. “That’s not sufficient to break this vicious cycle that
the country is now in as it relates to the tensions between the police and
communities of color.”
The policing profession is
starting to debate whether departments should be more ready to acknowledge
mistakes made by officers, even in cases where the shootings may be found
legally justified. The bar for acceptable police work “can’t simply be whether
what he did is criminal or not,” said Chuck Wexler, the executive director of
the Police Executive Research Forum, a law enforcement policy group.
Mr. Wexler’s group, which
works with many police chiefs, recently urged departments to add use-of-force
restrictions that would go beyond the law’s requirements. Many agencies already
do so, with Mr. Wexler citing the New York Police Department’s rule against shooting
moving vehicles, from 1972, as an example.
But his call has provoked some negative reactions. The
Fraternal Order of Police and International Association of Chiefs of Police issued a statement, rejecting the proposal: “Reasonable use of force in
any given situation must be at the discretion of a fully sworn and trained
officer.”
The principle that force
should be evaluated from an officer’s perspective received the Supreme Court’s
endorsement in a 1989 decision holding that such encounters ought to be “judged from
the perspective of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight.” Since then, a series of subsequent Supreme Court rulings have expanded officers’legal protections.
Many officers say this is appropriate given the
realities of the job: They are issued guns and obligated to confront danger and
unlawful behavior. Forced to make split-second decisions during sometimes
chaotic encounters, the police deserve significant protections under the law,
especially when things do not go as planned, supporters of the legal standard
say.
“Being a police officer is a very dangerous job,” Mr.
London, Officer Haste’s lawyer, said, “and danger comes upon you instantaneously.”
Still, the legal standard, has been interpreted by one
federal appeals court even to permit the shooting of unarmed, innocent people
who are seeking to comply with the police. In that case, a man
was shot three times while reaching his back pocket, not for a gun, as an
officer feared, but to turn off his Walkman. In the years since that 1991
shooting, prosecutors have accepted that the legal standard not only
countenances mistakes, but also poor judgment by officers.
“Mistake, panic, misperception or even poor judgment
by a police officer does not provide a basis for prosecution,” the Justice
Department noted in its report explaining its decision not to seek charges
against the Ferguson officer who killed Mr. Brown in 2014.
And it could well shield the officers involved in the
two police shootings of black men currently troubling the nation, in Falcon
Heights and Baton Rouge. “Those would both be hard prosecutions to bring
because in both cases the victims were actually armed,” said Paul Butler, a
Georgetown law professor and former federal prosecutor. “The law gives a lot of
deference to police officers.”
State laws do vary. Minnesota, where the aftermath of
the shooting death of Mr. Castile was streamed live on Facebook, has one of the
most restrictive laws, permitting deadly force “only when necessary to protect the
peace officer or another from apparent death or great bodily harm.”
Other states, like
Ohio, have no specific
law, so prosecutors there, after 12-year-old Tamir Rice’s 2014 death, used the Supreme Court standard. New York law largely tracks that standard, citing the perspective
of a reasonable officer.
While the current legal standards for evaluating
police shootings are unlikely to change significantly, some civil rights
lawyers say there is some room for adjustments written into the law itself. If
police departments raise training standards and add restrictions to
use-of-force policies, the perspective of a so-called reasonable officer might
evolve as well, and so will the line between lawful and unlawful shootings.
“I think there is a setting of standards within the
profession, and that the courts eventually will catch on,” Vanita Gupta, who
runs the Civil Rights Division of the Justice Department, said in a report published by
the Police Executive Research Forum.
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