December 05, 2014

Grand juries won't indict killer cops

Here's what people are saying about the Eric Garner case: in which another grand jury failed to indict another white cop for killing another black man.

Maneater (@kim_tastiic)
"What does that say about black life when we get murdered on camera and still get no justice?" ‪#‎EricGarner‬

jelani cobb (@jelani9)
As a matter of record, is there anything — ANYTHING — that law enforcement can do to a black person that qualifies as a crime? ‪#‎EricGarner‬

Tim Wise (@timjacobwise)
There is no killing of a black man by police that white folks won't rationalize/seek to justify... Somebody show me ONE case where I'm wrong

Systemic bias against blacks

Why It’s Impossible to Indict a Cop

It’s not just Ferguson—here’s how the system protects police.

By Chase Madar
Chapter 563 of the Missouri Revised Statutes grants a lot of discretion to officers of the law to wield deadly force, to the horror of many observers swooping in to the Ferguson story. The statute authorizes deadly force “in effecting an arrest or in preventing an escape from custody” if the officer “reasonably believes” it is necessary in order to “effect the arrest and also reasonably believes that the person to be arrested has committed or attempted to commit a felony…or may otherwise endanger life or inflict serious physical injury unless arrested without delay.”

But this law is not an outlier, and is fully in sync with Supreme Court jurisprudence. The legal standard authorizing deadly force is something called “objective reasonableness.”

This standard originates in the 1985 case of Tennessee v. Garner, which appeared at first to tighten restrictions on the police use of deadly force. The case involved a Memphis cop, Elton Hymon, who shot dead one Edward Garner: 15 years old, black and unarmed. Garner had just burgled a house, grabbing a ring and ten bucks. The US Supreme Court ruled that a police officer, henceforth, could use deadly force only if he “has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” The ruling required that the use of force be “objectively reasonable.” How this reasonableness should be determined was established in a 1989 case, Graham v. Connor: severity of the crime, whether the suspect is resisting or trying to escape and above all, whether the suspect posed an immediate threat to the safety of officers or others. All this appeared to restrict police violence—even if, in the end, Officer Hymon was never criminally charged for fatally shooting Edward Garner.

“Objectively reasonable”—what could be wrong with that? But in actual courtroom practice, “objective reasonableness” has become nearly impossible to tell apart from the subjective snap judgments of panic-fueled police officers. American courts universally defer to the law enforcement officer’s own personal assessment of the threat at the time.

The Graham analysis essentially prohibits any second-guessing of the officer’s decision to use deadly force: no hindsight is permitted, and wide latitude is granted to the officer’s account of the situation, even if scientific evidence proves it to be mistaken. Such was the case of Berkeley, Missouri, police officers Robert Piekutowski and Keith Kierzkowski, who in 2000 fatally shot Earl Murray and Ronald Beasley out of fear that the victims’ car was rolling towards them. Forensic investigations established that the car had not in fact lurched towards the officers at the time of the shooting—but this was still not enough for the St. Louis County grand jury to indict the two cops of anything.
Why wasn't the cop who killed Eric Garner indicted?

By Amanda TaubWhy was there no indictment in the Eric Garner case? Two words: Police credibility. It's hard to avoid the conclusion that we have two different standards for guilt in the American criminal justice system: civilians get "beyond a reasonable doubt." Police get "beyond any possible doubt, no matter how implausible it may seem."

There is video of Garner's death. It shows NYPD officer Daniel Pantaleo wrapping his arm around Garner's neck, and then throwing his entire body weight against it until Garner fell to the ground, choking and gasping that he could not breathe. The NYPD placed an absolute ban on the use of chokeholds in 1993, on the grounds that the technique was too dangerous to use in any circumstance. A New York medical examiner ruled the death a homicide. But that wasn't enough for the grand jury, because Pantaleo told a different story.

Pantaleo spoke before the grand jury for nearly two hours—itself a privilege that most defendants are not afforded. According to the New York Times, Pantaleo testified that he didn’t use a chokehold, but a "wrestling move." Pantaleo also testified that he got off of Garner "as quick as he could." (The video shows him and other NYPD officers piled on top of Garner even after he had fallen to the ground. One officer knelt on Garner's head as he gasped for breath.)

But when faced with the question "who are you gonna believe—the cop, or your own eyes?" the grand jury decided that the answer was "the cop." To them, his testimony outweighed the videos, as well as the testimony of 22 civilian witnesses.

10 Ways the System Is Rigged to Protect Cops Who Kill

Obstacles to accountability exist at every stage of seeking justice.

By Steven Rosenfeld
Let’s walk though 10 ways the system is predisposed to let NYPD Officer Daniel Panteleo off the hook, just as Darren Wilson, the white Ferguson police officer who shot and killed another unarmed black man, Michael Brown, last week escaped charges by a local grand jury.

1. There is a double standard for charging citizens and police. Everybody knows that police are authorized to use force in ways civilians are not. But if a civilian shoots a person outside his car window—as was the case in Ferguson—you can bet that shooter would be arrested, charged and have to defend his actions in court, David Rudovsky, a civil rights attorney and author on police misconduct told But that is not the case when cops are the shooters, he said, because “police are investigating their own.”

2. This inherent conflict of interest is all over the Garner case. If you watch the July 20 video by Tiasha Allen posted on the New York Times website, you see Garner after he is placed on the sidewalk, face-down, hands tied behind his back. A dozen NYPD officers mill around and act as if nothing is unusual or wrong. Forget that this video shows a dying man’s final hour, and that the NYC medical examiner concluded the chokehold and leaving him on the sidewalk face-down killed him. Look at the cops: this team of officers would include many likely witnesses called before the Staten Island grand jury. “It’s often the police department that is charged with investigating a particular incident, deciding who’s telling the truth, who used force first, and so on and so forth,” Rudovsky said, explaining the first of many conflicts of interest.

3. Then comes the legal framework that protects cops. This is how the law is layered to protect rogue cops. It starts at the very top, as the Nation pointed out, because the standard in a 1985 U.S. Supreme Court ruling that tried to restrict when cops could use deadly force has been twisted by police to defend each other. The court held that deadly force can be used when a police officer “has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” In 1989, the Court tried to be more specific by saying there had to be an immediate threat to their safety or to others. “But in actual courtroom practice, ‘objective reasonableness’ [standard] has become nearly impossible to tell apart from the subjective snap judgments of panic-fueled police officers,” the Nation said, explaining the loophole. “American courts universally defer to the law enforcement officer’s own personal assessment of the threat at the time.”
Legal Experts Say Eric Garner Grand Jury Did Exactly What DA Wanted: Nothing

By Christopher RobbinsWhile most legal experts believed that the grand jury did not have enough evidence to prove a murder charge, the grand jury could have charged Pantaleo with manslaughter or criminally negligent homicide.

"In this case, you had videotape, and the videotape is pretty darn clear," Cohen says. "The video showed that the officer engaged in a long-prohibited conduct, a chokehold, and it doesn't seem to make any difference to the jury. And that's because the prosecutor decided that there should be no indictment for any criminal behavior."

Randolph McLaughlin, a law professor at Pace Law School and civil rights attorney, agreed.

"The grand jury is a tool of the prosecutor. At a minimum, it was negligent, it was reckless, it was some level of homicide. Surely they could have indicted this officer on any number of charges and let the public hear, let a trial happen, expose to the light of day what went on here. This man is a public servant, and he committed these acts as a public servant, wearing the uniform of a public servant, and he should be called to account for it."

In a statement, DA Donovan noted that he is barred from disclosing any details surrounding what took place during the grand jury proceeding, but that he petitioned for the information to be released on a court order.

Jeffrey Fagan, a law professor at Columbia who specializes in police accountability and criminal law, says he was "not surprised" by the grand jury's decision.

"It’s politically costly for Dan Donovan to indict a police officer on Staten Island. He can easily shift the political and legal burden to the Department of Justice to decide whether to pursue criminal charges. He’s washed his hands of it."
My tweets on the subject:

Proposed training for the NYPD: When a suspect says "I can't breathe," you stop choking him to death. ‪#‎EricGarner‬ ‪#‎HandsUpDontChoke‬

Coming soon: White cop shoots Obama, explains actions. "He looked so big! I thought he had a gun!" Grand jury declines to indict. #Ferguson

For more on Ferguson, see Police Prejudiced Against Blacks and Indians, Blacks Are America's "Others."

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