New York Times – by SHAILA DEWAN and TIMOTHY WILLIAMS
What was once a rarity has now become increasingly common: police officers facing criminal charges in the deaths of civilians. In Albuquerque, two officers will stand trial in the death of a homeless man. In Cincinnati, a campus police officer has been charged in the fatal shooting of a man during a traffic stop. In Chicago, where a video captured the death of Laquan McDonald at the hands of the police, an officer was charged with murder.
But even as high-profile police shootings have attracted more scrutiny over the past year, one thing remains clear: The law gives the police the benefit of the doubt.
That was the case on Monday, when a grand jury declined to indict two Cleveland police officers in the death of 12-year-old Tamir Rice.
The local prosecutor said the shooting of the boy as he played with a toy gun in a park was tragic but not criminal.
And even as the number of police officers facing charges has notably risen, driven by video evidence and a national debate over law enforcement tactics, convictions have proved as elusive as ever.
In November, a Pennsylvania jury acquitted Officer Lisa Mearkle, who shot an unarmed man in the back after he fled a traffic stop for an expired inspection sticker. In December, a jury deadlocked in the trial of the first of six Baltimore police officers charged in the death of Freddie Gray. The judge declared a mistrial.
Such legal realities leave a wide gap between an unnecessary police shooting and a criminal one, a gap that, barring a new Supreme Court ruling on police use of force, must be filled by better policies, training, accountability and supervision, experts say.
“These are important policy discussions that need to be addressed,” said Philip M. Stinson, a criminal justice professor at Bowling Green State University in Ohio and a former police officer. “We have a problem with police subculture. We have a problem with poor training, lack of training. Many police departments have cut in-service training because of budget cuts. Many departments used to send everybody every month, but now they don’t have the money to do that.”
Despite heavy sanctions, like millions paid out in settlements over police mistakes, police departments have resisted change, Mr. Stinson said. “But it’s gotten to the point now where people of all walks of life are paying attention. We’ve gotten to a tipping point.”
William Johnson, the executive director of the National Association of Police Organizations, had a broader view of how to bridge the gap.
“The anger on the part of protesters is misguided if it’s focused on the grand jury,” he said. “If they want change, what they need to look at is training, on the part of officers, but also training on the part of the community to understand how the criminal justice system does work. And also in, I don’t know how to put it, but common sense on the part of the public.”
He pointed out that Tamir Rice had a realistic-looking toy gun, and that in the shooting of Michael Brown in Ferguson, Mo., in 2014, forensic evidence supported the police officer’s account that Mr. Brown had gone for the officer’s gun during a scuffle. Later that year, a grand jury declined to indict that officer, Darren Wilson, and shortly afterward, Daniel Pantaleo, the officer whose chokehold caused the death of Eric Garner in Staten Island, also was not indicted by a grand jury.
This year, 18 police officers were charged in fatal on-duty shootings, compared with an average of fewer than five a year over the preceding decade, according to Mr. Stinson’s research. That does not include the six officers indicted in the nonshooting death of Mr. Gray. Of the 18, 11 of the cases involved some sort of video evidence, Mr. Stinson said, adding, “In some of these cases, I don’t think the officers would have been charged without it.”
The new zeal to indict officers is far from universal. In Florida, it has been more than two decades since an officer was indicted on a charge of using deadly force. In Houston, an investigation by The Houston Chronicle found that the last officer charged in a shooting was in 2004.
Even with indictments, juries will remain reluctant to convict police officers absent evidence of malice, said Eugene O’Donnell, a former officer and prosecutor who now teaches at the John Jay College of Criminal Justice in New York. “Tremendous incompetence, the worst kind of training, disregard for people is really not enough,” he said. “You’re going to have to go beyond that because the police are different.”
Some jurors in police cases have later made a distinction between determining whether the officer should have fired and deciding — as the law instructs — whether the officer could reasonably have feared bodily harm. In the case of Officer Mearkle in Pennsylvania, the victim lay on the ground as ordered, but did not keep his hands in full view, a video of the shooting shows.
But convictions or no, Professor O’Donnell said, the intense scrutiny brought on by a wave of activism after the shooting of Mr. Brown, followed by this year’s string of indictments, has caused “seismic changes” in policing.
“You can absolutely be sure there’s an impact on the everyday work the police do,” he said. “This is reminding the police that they should only be using deadly force as a last resort.”
“It’s an imperfect way to fix the system, the criminalization of people,” he added. “In a way, we’re doing bottom-up reform instead of top-down reform. We’re finding egregious endings and working from there instead of proactively saying the police system is part of the criminal justice system and consequently is broken. The political sector hopes that the conversation will end there, at the bottom or close to the bottom.”
Cleveland recently agreed to overhaul its police department after a Department of Justice investigation found a pattern and practice of excessive force. The department now places a first aid kit in every squad car and offers first aid training. Tamir lay unaided by the police for several minutes after he was shot.
But at a news conference Tuesday, Mayor Frank Jackson and Police Chief Calvin Williams spoke not of policy changes, but of a top-to-bottom review of the Rice shooting to determine whether and how much to discipline the two officers, the 911 operator and the dispatcher. The 911 caller who reported the gun said that it might be a toy and that the suspect was probably a child, but that information was not relayed to the officers.
“If the facts show that there was wrongdoing on the part of the officers, procedurally, policy-wise, we will take care of that,” Chief Williams said. “If those facts don’t bear that out, it will go that way.”
Mr. Jackson declined to comment on the grand jury’s decision, but said repeatedly that the public had lost confidence in the justice system.
“There is what they believe to be a lack of fairness, a lack of justice in the system and the way in which it prosecutes or reviews these kinds of cases,” he said. “And people are very upset about it. And I believe legitimately and rightly so.”