Police reform Part 2: Why it is hard to charge and convict police officers of misconduct

Suppose there was a magic wand that suddenly enhanced officer training, ended militarization, reduced the scope of services the police could provide, and reduced support for tough on crime policies. Could we see an end to police brutality? We would probably see a decrease but only up to a point.

This is because even with more training, no military gear, or restricting the police to a fewer selection of services, there is still the matter of what happens when a police officer has behaved poorly. What kind of consequences do they face? Unfortunately, police officers usually face little to no legal consequences. Police officers are rarely fired, rarely charged with a crime, and rarely convicted of a crime. All other factors resolved, this would still present an incentive for excessive use of force.

Why it is hard to charge and convict a police officer of a crime

Generally, it is hard to charge the police because the law gives them immunity. But even when they are charged with a crime it is hard for the jury to convict them.

Minnesota law, for instance, does not make it hard to charge guilty officers but it is hard to prove their use of force was unreasonable.  This is usually because police are allowed to use “reasonable force”. According to the Minneapolis use of force Policy:

 And because reasonableness has no precise definition, proper application shall consider the following facts:

(1) The severity of the crime at issue,

(2)Whether the suspect poses an immediate threat to the safety of the officers or others, and;

(3) Whether he is actively resisting arrest or attempting to evade arrest by flight.

Furthermore:

The “reasonableness” of a particular use of force must be judged from the perspective of the reasonable officer on the scene, rather than with the 20/20 vision of hindsight.

The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation.

Due to all the above guidelines, police officers have more leeway to prove their use of force was reasonable even though it might look like it was not. Officers can argue they perceived a threat or were scared for their life, something which is very hard to objectively disprove.

Qualified Immunity

As part of the civil rights act of 1871 people could sue states, local governments, and officials including police officers. But in 1967 the Supreme court started making changes that introduced the idea of qualified immunity.

Basically, qualifies immunity is “the legal doctrine by which government officials are protected from personal liability owing to discretionary action unless clearly abrogating established federal law or constitutional rights”. This basically means a police officer cannot be sued unless they break a clearly established rule.

This often requires the accuser to show legal precedent of similar circumstances in order for qualified immunity to not apply to an officer. Even small differences whereby a police officer beat up a suspect with a baton and no precedent exist regarding the use of the baton, the police officer would not be charged.

Here is a good examples of how the technicalities matter;

Prince McCoy, a Texas inmate, learned about qualified immunity the hard way. A prison guard, frustrated by a different inmate in a different cell, shot McCoy in the face with pepper spray. McCoy sued, but the 5th U.S. Circuit Court of Appeals held that the guard was entitled to qualified immunity even though his assault violated the Constitution. Why? Because although the court had previously condemned punching and tasing defenseless inmates, it had not previously condemned jailers for using pepper spray on defenseless inmates locked in their cells.

In practice, this means that government officials have a free pass to violate your rights as long as they do so in a way that is even a little different from what has been done before. And as a result, courts in recent years have said that officers can steal cash, destroy homes and shoot children—all without any consequence at all.

In consequence

Civil rights plaintiffs are not able to get to a jury even when judges agree the conduct alleged, if proven, would be illegal if a court has not already found the challenged conduct to be illegal. This catch-22 prevents the law on excessive force from being developed and allows police misconduct to go on without the accountability that civil rights lawsuits are supposed to provide.

Here is alist down below of police officers who could not be charged due to qualified immunity. If these were any regular individuals this would not happen.

Officers who stole $225,000.

cop who shot a 10-year-old while trying to shoot a non-threatening family dog.

Prison officials who locked an inmate in a sewage-flooded cell for days.

SWAT team members who fired gas grenades into an innocent woman’s empty home.

Medical board officials who rifled through a doctor’s client files without a warrant.

County officials who held a 14-year-old in pretrial solitary confinement for over a month.

A cop who body-slammed a 5-foot-tall woman for walking away from him.

Police who picked up a mentally [infirm] man, drove him to the county line and dropped him off at dusk along the highway, where he was later struck and killed by a motorist.

So, if the police know they can get away with poor behavior what’s the incentive for them to stop? And what’s the incentive for citizens to try to bring them to justice if they know their actions will only be futile?