Police Shootings Back in the News

This is cross-posted from [email protected]:

Police shootings are back in the news. Michael Slager has pleaded guilty to federal charges involving the killing of Walter Scott. Federal officials have declined to bring charges against the officers involved in the shooting death of Alton Sterling. Meanwhile Texas officer Roy Oliver has been fired in the wake of the shooting death of 15 year old Jordan Edwards.

Each shooting incident has to be considered separately to take account of all the surrounding circumstances. There are a range of possibilities—from self-defense on the part of the officer, to tragic accident or mistake, to manslaughter or even first degree homicide. To ensure just outcomes, one of the most important things is to have independent, impartial investigations whenever there is a questionable shooting, especially where someone is killed or injured. Preferably, this will be done by a completely separate police department or the state attorneys general office, rather than the federal government. Another best practice for police shootings involves transparency. Police departments should identify the shooter and disclose his or her record, such as previous involvement in shootings or previous lawsuits alleging wrongdoing. Authorities should also make videos available. Mayor Rahm Emanuel tried to make the Lacquan McDonald case go away with a quiet legal settlement. It was only when a reporter went to court to seek the release of the video that the scandal was exposed and real movement for police reform could begin.

For related Cato work, go here, here, and here.

Police Shooting Case at Supreme Court

Today, the Supreme Court declined to review an appeal in the case of Salazar-Limon v. City of Houston  (scroll down). Of course, the Court declines most appeals and can only review a small fraction of the cases brought to it.  What is noteworthy about this case is the dissent filed by Justice Sotomayor.  She wanted to explain why the Court’s denial was a mistake.

The case involved a police shooting in Houston.  The man, Ricardo Salazar-Limon (SL), survived the shooting and later sued for excessive force.  Unfortunately, his lawsuit was thrown out before there was even a trial.  That was Sotomayor’s objection–the case was improperly decided by a judge before trial when a jury should have heard the controversy.  Salazar-Limon was shot by the police and now the government has tossed away his legal claim of excessive force.  By allowing the lower court ruling to stand uncorrected, the law is now tilting against the victims of police misconduct and puts dangerous power in the hands of police.

Here’s the background: SL was driving on a Houston freeway around midnight.  He had been drinking.  Officer Chris Thompson pulled him over, and asked for his license.  Thompson checked for warrants, but there were none.  SL was asked to exit his vehicle –probably for a sobriety test.  It seems that when Thompson moved to put handcuffs on SL, things escalated fast and their stories diverge.  SL says he started walking away, and that he was shot in the back just seconds after Thompson had called out to him to stop.  Thompson claims that SL responded to his order by turning around and making a motion toward his waistband as if he were about to draw a gun, so Thompson, who had already drawn his weapon, shot SL.   SL had no gun.

As noted, an excessive force claim was filed.  The police officer asked the district judge to resolve the case in his favor prior to trial, arguing that he was immune under the doctrine of qualified immunity.

When the facts are disputed, cases typically go to the jury.  When there is no real factual dispute, a judge might decide the case based on the law.  That’s what happened here, but it remains controversial.  Officer Thompson and the lower courts took the position that since SL did not deny reaching for his waistband, the court could decide the case without a jury.  In that situation, the courts said Thompson would have been justified in using deadly force–even if no gun is found later.  The perceived threat is sufficient.

Sotomayor said the courts were making an awful mistake.  SL’s legal claim did dispute the facts–that he did not turn to Officer Thompson till he was shot in the back.  SL is basically saying that he got shot for disobeying an order given just seconds earlier and that’s excessive force.

Sotomayor isn’t saying that Officers Thompson was wrong to shoot.  She is making a more modest argument.  The jury should have heard both sides and then decided the case after hearing all the evidence.  She believes the courts are deciding too many of these kinds of cases prematurely and that the victims of police misconduct are having their claims improperly rejected.  She’s right.  Alas, only Justice Ginsburg joined Sotomayor’s dissent.  Still, the dissent raised the profile of the problem and will help ignite a debate in this important corner of the law.

We should note that Sotomayor cites this article by Radley Balko that collects cases of persons shot by police where the justification was “reaching for the waistband” and it turned out there was no gun.  That is just too thin a basis for the use of deadly force on people.  To be clear, the officer could draw his weapon and he could take cover and issue more commands to a suspect to show his hands.  But opening fire without seeing a gun in such circumstances seems wrong.  At the least, the jury should have decided whether the shot was truly justified.

 

Worst of the Month — January

So for January we have selected the case of Philippe Holland, who was an innocent man shot by Philadelphia police.

According to news reports, here is what happened: Holland was a college student who worked part-time delivering take-out food.  Two  years ago, he was delivering a cheeseburger to a house when two officers in plain clothes responded to the area because of a report about gunshots.  Holland says he thought he was about to get robbed because the officers approached him without identifying themselves.  Frightened, Holland jumped in his car and tried to drive away quickly.  The police officers opened fire and Holland now has a permanent seizure disorder and has bullet fragments in his brain.

Last month, the city agreed to pay $4.4 million to settle a lawsuit brought by Holland, reportedly the largest settlement for a police shooting in the city’s history.

The officers involved in the shooting–Kevin Hanvey and Mitchell Farrell– claim that they feared for their lives and thus had to shoot.  They were not prosecuted.  Even after the passage of two years the department says their discipline is yet “to be determined.”  Hmm.