From Freddie Gray in Baltimore to Walter Scott in South Carolina to the more than 100 people tortured and framed over two decades in Chicago, the issue of police abuse has finally started to permeate the national discourse. But even as regular headlines reveal fresh abuses, many officers continue to take shelter behind the use-of-force framework for police interactions, suffering few or no negative consequences for excessive use of force.
There are roughly 18,000 law enforcement agencies in the United States. Most of them operate relatively autonomously, yet officers are shielded in the same way in most states and jurisdictions. Spurred by the growing national movement against police brutality,lawmakers and activists have started looking for solutions that would hold police officers more accountable for the use of force. On Friday, President Obama's new Attorney General Loretta Lynch announced that the Justice Department would investigate the Baltimore Police Department to determine whether there had been systemic civil rights violations by officers.
But given the sheer number of law enforcement agencies in the country, the DOJ doesn't have nearly enough resources to investigate all of them. Between close relationships with prosecutors, secretive police culture, and laws that protect officers from taking personal responsibility for their actions, the obstacles to police reform are stifling.
Prosecutors and the Police
Trusting police officers is effectively a professional requirement for most prosecutors, and that trust doesn't evaporate when an officer the prosecutor works with shoots a suspect. So it's not surprising that indictments for on-duty incidents are exceedingly rare without incontrovertible evidence that contradicts an officer's version of events.
In Los Angeles County, no officer has been prosecuted for an on-duty shooting since 2001. According to the Los Angeles Daily News, "In each of the 409 shootings since January 2010, prosecutors determined on-duty officers were justified in using deadly force." Taken together, that seems like a lot of shootings without a single unjustified incident. But prosecutors look at each case individually on its own merits, and more often than not, they believe the police officer.
Generally speaking, prosecutors are not incentivized to doubt every story of the cops they work with daily. In addition to working together on criminal cases, many state and local prosecutors are elected officials who rely on political support from police. And prosecutors often run on their conviction stats, further disincentivizing them from questioning the people who supply the cases that keep them in office.
As for the use of force, over the years the Supreme Court has essentially created achecklist of requirements for police violence to be justified. Unsurprisingly, police explanations in use-of-force incidents often sound remarkably similar to those requirements: The most common explanations will include "the officer feared for his life" and "the suspect reached for his waistband," as if for a weapon.
This doesn't mean all officers who say something like this are lying. Rather, officers know exactly how to frame their account of an incident in a way that will satisfy a prosecutor. And the current state of the law gives a large benefit of the doubt to police officers, giving prosecutors all the more reason to accept their version of events.
The Problem with Police Culture
In 2010, the Village Voice published an exposé of New York City police officers in Bedford-Stuyvesant's 81st Precinct. The report was based on many hours of secret tape recordings that revealed police practices that had been denied publicly, including manipulation of criminal charges to satisfy departmental statistical goals. Put simply, the precinct ran a coordinated effort to lie about crime stats.
The whistle-blower, Officer Adrian Schoolcraft, was dragged from his apartment by police supervisors and involuntarily committed to a mental health facility for six days—on those supervisors' claims of his mental instability. For his public service, Schoolcraft was harassed by fellow officers, run out of the department, and still awaits action on his lawsuit against the city and NYPD. The deputy chief who ran Schoolcraft's precinct and helped drag him from his home retired in 2014 with a $135,000 pension.
The retaliation is evidence of what is commonly known "Thin Blue Line" or "Blue Wall of Silence"—an internal cultural code that trumps constitutional policing with "how things are really done" in many police departments, enforcing trust and loyalty among officers over the individual rights of citizens. The penalty for breaching can be ostracism, harassment, or worse.
Sometimes, it's as simple as officers covering for one another. In the shooting death of Walter Scott in South Carolina, the initial police reports were missing critical information about what happened, suggesting that other officers may have been complicit in crafting a narrative that looked good for the officer now facing a murder charge. Same goes for the Tamir Rice shooting, in which initial reports don't match what the surveillance video showed. In other cases, the wall has been used to obscure a long-running pattern of torture more commonly seen under brutal dictatorships, or thesadistic retaliation for a punch that never happened.
Laws That Protect Cops
Last year, a months-long investigation by the Baltimore Sun exposed how much money the city was paying in police brutality settlements. The reporters had to dig through court records because police disciplinary records for Maryland law enforcement are kept secret by statute. Records secrecy is common among many states, but Maryland and a few other states go much further, giving police a full swath of procedural protections known as the Law Enforcement Officers' Bill of Rights (LEOBR).
As attorney Ken White explained at the Popehat blog, these codified protections give police more rights than citizens during criminal investigations. In Maryland, the LEOBR shrinks the statute of limitations to 90 days for a citizen to file an actionable complaint against a police officer on duty, grants the officer full access to the investigation against him, and strictly limits the time, place, and manner of interrogations of the officer. White also notes the notorious "cooling off" periods that an officer enjoys after a potentially criminal incident before investigators may question him. Depending on the state, those periods last anywhere from 48 hours to ten days.
Some states provide labor arbitrators to reinstate fired officers and award them back pay,even when they were dismissed for violent conduct. Such protections make it exceedingly expensive and difficult for cities and departments to purge violent officers from their ranks.
Is It Fixable?
The federal government exercises a limited role in overseeing police departments. In the wake of a scandal involving police corruption or violence in a major city, the DOJ's Civil Rights Division may launch investigations for "patterns and practices" that violate the civil rights of residents, as it has in Baltimore. But the decentralized nature of law enforcement in the US means that in most cases police reform will have to be implemented at the state and local level.
As Maryland lawmakers can attest, reform will not be easy. Nearly 20 law enforcement reform bills died in the legislature this year, though a dedicated working group promises to reintroduce many reforms—including repeal of Maryland LEOBR—in the next session.
On the plus side, the city of Baltimore established a searchable database of brutality lawsuits in response to the Sun investigation. In Missouri, the state legislature is considering modest reforms of the state's use-of-force law in the wake of the Michael Brown shooting.
In New York State, the Legal Aid Society has created a database of lawsuits and allegations against police officers that defense attorneys and litigators can use in future actions against officers who re-offend. And a sustained campaign by activists and protestors induced the City of Chicago to set up a $5.5 million reparations fund to over 100 victims of torture by the police department over a 20-year period.
Exposing the human toll of systemic abuse to the public puts pressure on politicians to act to curb it in the future. This pressure is driven home to those politicians by the steep financial liability to which abusive officers expose their governments. The challenge lies in getting access to such information, publishing it, and shaping the reform when it comes.