By Jack Ainslie
Last Friday night, Rayshard Brooks became the latest victim of the plague of police brutality in the United States.
He was shot by Officer Garrett Rolfe as he tried to escape police officers in Atlanta. Mr. Brooks held a taser at the time of his death – a non-lethal weapon. His back was turned and he was running away from officers. Even if his arrest was justified -something which is open to debate- there is no excuse for such an excessive use of force in a situation where there was no apparent threat to life. It has emerged that Rolfe kicked the dead body following the shooting, with his partner also standing on Brooks’ shoulders. Two minutes passed before medical help was requested.
Mr. Brooks’ death has been ruled as a homicide and Atlanta’s police chief has resigned. Rolfe has been fired and charged with Rayshard Brooks’ murder. Despite the tragedy, it does demonstrate that the current protests have made it less acceptable for these incidents to be buried in the depths of internal investigations by police forces. However, whether this will last after the cameras roll out of town remains to be seen.
Whilst we may have turned a debatable corner in regards to how killings of civilians are viewed, there is still a long way to go in how police are held accountable for their actions. Police killings of civilians are only the bloody tip of the iceberg, officers must be held to account for non-lethal excessive use of force and other unjust actions. In the US only one out of every twelve complaints about officer misconduct results in any sort of disciplinary action. Whilst it is obvious that some complaints will not require disciplinary action, the measly amount which are acted upon demonstrates the ineffectiveness of current systems. Both the police’s internal process and the wider criminal justice system are woefully inadequate in dealing with allegations of police violence.
There are around 1000 police shootings in the United States every year. However, between 2005 and April 2017, there were only 80 officers charged with either murder or manslaughter. Of course, in a country that has such a virulent gun culture as the United States, there will be shootings which are justified in order to protect life. But this paltry number -and the fact that only 35% of them are found guilty- indicates the lack of rigorous process involved in investigating incidents of police violence. The minuscule conviction rate of 35% stands in stark contrast to the overall US rate where 68% of those charged of all crimes are found guilty. Often, its the press attention for filmed incidents which pushes prosecutions, rather than them being a matter of course due to robust accountability procedures.
The law enforcement misconduct statute’s Section 242 defines when police officers can be charged with felonies. This forms part of the qualified immunity which protects public officials from prosecution except in cases where they breach clearly established constitutional rights. Section 242 states that officers must be shown to ‘wilfully subject’ an individual to a ‘deprivation of rights.’ This is exceptionally difficult to prove and also implies a degree of premeditation is required for charges to be brought. As officers will generally go into a situation with little knowledge of what will happen or who is involved, these standards heavily weight the system in favour of the authorities. Of course, officers must have a licence to use force, but what is acceptable needs to be dictated by a use of force policy that is consensually created by people from different communities, campaign groups and law enforcement. A clear policy allows for more effective accountability.
Secondly, the standards used to judge allegations of excess force are insufficient. On the US Department of Justice website, a previous case is used as a precedent for judging cases of alleged assault by officers. It reads that ‘the “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene.’ Once again, the system is biased against the accuser. Another officer at the scene (especially if he is a regular workmate of the accused) is unlikely to give an objective account. This case was from 1989, the fact it is still referenced on the DoJ website demonstrates how little reform has actually taken place. Surely all officers should be made to wear body cameras? A video is the ultimate bringer of clarity as it will contextualise the incident through revealing the events leading up to the use of force.
This reliance on other officers giving evidence about their colleagues is just one example of the incestuous relationship between the justice system and police forces. Local prosecutors are often reluctant to press charges against the police due to the close relationship they have with them. Whilst it is clearly vital for the police and prosecutors to work closely on other cases, it severely inhibits the ability of the latter to work in an objective manner. An officer who is criminally charged may be one who tends to be exceptionally cooperative with the prosecutors office and provides compelling evidence against defendants in other criminal trials.
Surprisingly (for non-Americans), the majority of prosecutors at the state and local level are elected. Thus, they harbour political interests. Very few attorneys want to be depicted as ‘anti-police’ and potentially lose backing from the powerful police unions. In addition to this, and as my earlier statistic proved, very few cases that are brought to court result in conviction. This helps to actively drive down the number of cases that are brought in front of a judge and jury in the first place. Evidence is often scarce in many cases that aren’t filmed. Prosecutors don’t want to take cases to court which they are unlikely to win, and be faced with juries who are typically on the side of the police.
The popular depiction of the police as protectors in a world of crime and chaos make it difficult to convince juries of their being criminals themselves. Many will believe that the officer made a simple error of judgement, rather than upend their vision of the accused as a warrior of justice and see him as a lawbreaker. This lack of success in conviction can put off even the most determined of prosecutors. Many of those who are acquitted will embarrassingly (for the attorney) end up back in the police force. It is obvious why even reform-minded prosecutors prefer to take a back seat, rather than have one officer who is acquitted become an ever-present symbol of what some will see as an unfair vendetta against the police, thus rubbishing the idea that reforms are needed in that area.
Therefore, investigations are best put in the hands of independent, federal prosecutors rather than shoved to the bottom of the local courthouse’s case pile. It is also imperative that the police’s internal procedures and oversight boards (which many forces don’t have) are able to refer cases to the justice system. At the moment, too many internal investigations end up with the case simply petering out before it ever reaches the criminal justice system.
Polling has shown that the current protests are persuading more and more Americans that the police system is both biased against African-Americans, and is in need of reform. This may encourage more cases to be brought against officers and persuade more juries that police officers are capable of committing crimes. However, without clear policies regulating the police and more independent methods of accountability introduced the same systemic failures will keep on preventing effective prosecution of officers. A lack of justice has already added to the grief of too many families. Reform is needed, and needed fast.