As we saw in the Jamar Clark case, federal civil rights prosecutions require a threshold of evidence that is nearly impossible to meet. Prosecutors must prove that officers acted “willfully” to deprive a citizen of their civil rights. Officers can only be held accountable for conscious, intentional bias; implicit bias — though proven to influence behavior and decision-making, especially in police encounters with black men — has no place. Is it time to change the federal standard?
The day after Philando Castile was shot by St. Anthony Police Officer Jeronimo Yanez, Gov. Mark Dayton stood on Summit Avenue announcing his support for an immediate federal investigation.
While calling for a federal investigation is an appropriate response to the gravity of the shooting, it is unlikely to provide a different outcome from prior investigations, such as that of Minneapolis police officers Mark Ringgenberg and Dustin Schwarze in the shooting death of Jamar Clark. On June 1 federal prosecutors announced that they found “insufficient evidence” to pursue a case against the officers, who fatally shot Clark in the face on Nov. 15, 2015.
U.S. Attorney Andy Luger declared that the evidence failed to meet the high threshold for federal civil rights cases, a threshold that judges and legal scholars acknowledge is one of the most difficult for prosecutors to prove: that officers acted “willfully” — that is, intentionally — to deprive a citizen of their civil rights. The standard of proof is indeed so high in cases of officer-involved shootings that since 1995 only 4 percent of federal civil rights complaints have been prosecuted, according to an investigation by the Pittsburgh Tribune-Review.
1945 Supreme Court ruling
The willfulness standard dates to a 1945 Supreme Court precedent, Screws v. Georgia. Claude Screws was the sheriff of Baker County, Georgia, when he beat to death an African-American man, Robert Hall, in Hall’s home. Hall was suspected of stealing a tire. Screws was convicted by a grand jury of violating Hall’s civil rights, a conviction that was overturned when the U.S. Supreme Court decided that it was uncertain whether Screws intended to violate Hall’s civil rights when he killed him.
A Georgia sheriff beats to death a black man suspected of petty theft; this is alarming, but unsurprising, for 1945. The question is, by relying on this precedent to determine civil rights violations today, are we serving up 1945-style justice in 2016?
In order to be convicted in a federal civil rights case, an officer must be shown to have acted upon conscious, intentional bias: prosecutors would have to cite racist remarks, for example, and directly connect them to the decision-making process. The Screws decision and its aftermath show that this was difficult to do even in 1945, when overt racism was more common. Since 1945, bigotry has declined, but systemic racism is alive and well.
How do we hold individual officers accountable for actions that reflect systemic bias?
We could call upon Congress to lower the willfulness standard, as Attorney General Eric Holder proposed in 2015. But the process would face steep opposition to federal intervention, says Chief Hennepin County Public Defender Mary Moriarty.
Change sought in ‘political will and priorities’
Civil rights advocates do not necessarily support this kind of change at the federal level. Craig Futterman of Chicago’s Civil Rights and Police Accountability Project argues instead that “there should be far more and vigorous prosecutions at both state and local level” and emphasizes that we already have the legal tools to enforce police accountability, but need a change in “political will and priorities.” Futterman hopes “these numbers may be changing because of activism and public attention.”
Teri Nelson of the Minneapolis ACLU claims Congress could find ways to “give the Act wider scope,” and a Hennepin County district judge consulted for this article said it would be possible to interpret the willfulness standard to include recklessness. Like Futterman, the judge framed the problem not as one of legal restriction, but a lack of political will.
News Day blogger Mary Turck prioritizes systemic change over individual prosecution: “The value of federal investigation is not that it may produce a federal civil rights prosecution, but rather that it may produce action to reform an entire police department.” In this judgment Turck aligns with legal scholar Rachel Harmon, who argues that the federal government is suited to facilitating and incentivizing reform, but doing so beyond the courts.
It is only since The 1994 Violent Crime Control Act that the federal government has had the authority to scrutinize local police departments engaged in systemic civil rights violations. This law that has been used to initiate DOJ investigations in Baltimore and Ferguson, and could be used in Minneapolis and St. Paul. Police departments found to exhibit a “pattern and practice” of excessive force and civil rights violations can be sued and compelled, under what’s known as a consent decree, to change those practices.
Calls for a special prosecutor
Amidst ongoing protests at the Governor’s Residence, Minneapolis NAACP President Nekima Levy-Pounds is calling upon the governor to appoint a special prosecutor in the case of Philando Castile, stating, “We have not held one single officer accountable for shooting an unarmed civilian in the state of Minnesota over the last decade or more. That is problematic.” A special prosecutor provides greater independence from the county attorney’s office, which works closely with the police department.
In order to increase systemic accountability, the federal investigation must include entire police departments: St. Anthony, St. Paul, and Minneapolis. Without a structure of accountability, even the officers involved in the most egregious cases face few consequences. Levy-Pounds criticizes Minnesota’s poor track record, stating, “We do not have a public corruption unit as similar to other jurisdictions around the country. … There is no independent body that ensures that justice was served and that the investigation was carried out in a fair and impartial manner.”
In cases of police shootings, charges could be brought against officers for negligent homicide, battery, or second degree murder. Minnesota Attorney General Lori Swanson could initiate civil action, and the state board of Peace Officer Standards and Training could enforce misconduct laws, including decertifying officers who have acted negligently or recklessly to endanger citizens.
Involving the state-level Bureau of Criminal Apprehension in the investigation of the Jamar Clark shooting was initially hailed as a step forward from the grand jury process for Hennepin County Attorney Mike Freeman. While the BCA investigation provided greater transparency than a grand jury, however, the outcome was familiar: no charge.
Local policies emphasized
Moriarty emphasizes that the most significant changes will come not from federal or state intervention, but through local policy: “Without specific department policies governing de-escalation, officers like Ringgenberg and Schwarze can’t be disciplined or fired. We need to have clearer policies governing how officers approach and engage with citizens.”
Minneapolis NAACP members Jason Sole and Rachel Wannarka have argued that in the Jamar Clark case officers in fact did violate existing MPD policies, and express the hope that the pending internal investigation will result in their termination. In addition to internal investigation, civilian oversight bodies such as the Minneapolis Office of Police Conduct Review and the Police Conduct Oversight Commission could play a role, but currently lack the authority or incentive to make substantive change. Of 962 complaints submitted to the OPCR since 2012, for example, only one officer [PDF] has been disciplined.
Moriarty is in agreement with Harmon that police departments and local governments could do more to protect civil rights by raising hiring standards, improving training, developing better policies, and supervising and disciplining officers more effectively. Futterman emphasizes breaking police departments’ notorious “code of silence” by increasing training on ethics and bias, implementing de-escalation policies, enforcing consequences for officers who violate policy, and protecting those who expose abuses of power. Along with Futterman, Moriarty stresses the power the public holds to create change: “I think many people don’t realize the incredible influence they have in holding police departments and public officials accountable. The public outcry we’ve seen in Minneapolis is changing the game.”
While there is little reason to believe that a federal investigation will result in a charge toward Officer Yanez, a wider investigation into police accountability in the Twin Cities is critical. As a greater segment of the population takes note of lawsuits filed in cases such as Clark, Castile and — as of last week — Paul O’Neal, we must understand the legal tools at our disposal, including their possibilities and limitations.
K.C. Harrison teaches courses on race and criminal justice at the University of Minnesota.
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The entire case for indictment of an officer comes down to the officer’s perception of the situation in the moments of the shooting. That is exactly why officers are not typically charged in the absence of a track record of overt racism, recklessness or gross disregard for rules and standards. Records of cameras and voice recorders can be analyzed at depth and replayed time after time and individual actions can be examined and criticized in detail. But in the end, those considered analysis are not informative of how the officer perceived the instant of the situation at the shooting.
So we have protests after immediately after the shooting and we’ll probably have even bigger protests after the almost inevitable decision to not charge the officer. And this will be used as prime evidence for the “racism” in the system. But the system is not and should not be constructed in a way that the vociferous demands of a group result in the indictment of a person. And it certainly should not move to the direction of “guilty, unless proven innocent”.
Policing is the point of contact between two sets of imperfect people. Yes–better training, better supervision, better policies and clear standards, and root out racism where it is found. But these situations will still come down to the lizard-brain reaction to the officer’s perception.
The author seeks pre-determined results
The author wants a different result, not a different process. She first characterizes involving the BCA in the Clark case as “hailed as…a step forward”, but then follows with her lament of the “familiar: no charge”. In other words, a different process is a success ONLY when it produces the result she wants.
In this, she is like a great many others who aren’t actually crying for a fair process, they are crying for a particular RESULT.
I have no doubt that in spite of any changes in process, the author and others of similar persuasion will decry THAT process except when it produces the result they desire.
Nailed it
This is the comment I wish I’d made
Headlines
It is my understanding that the authors of pieces do not write their headlines. In this case, I would point out the headline does not seem to relate to the piece. The author it seems to me, has given a quite cogent explanation of why a criminal prosecution in this case will not proceed, but that is not at all the same thing as saying the federal investigation has failed. What I gather from the piece is that the authorities did their job properly and successfully. They just didn’t reach a conclusion some had hoped for.
Concise and Clear
Thank You for your usual reduction. And, I completely agree with your headline observations. The “grabber” should relate to the conclusion, certainly, if not to the thesis paragraph.
I agree completely
Take note, MinnPost!
Fail?
The result of any investigation of the Castile shooting, under current law, is highly unlikely to result in the firing or indictment of officer Yanez, as you so clearly point out. That doesn’t mean that the investigation will fail in it’s mission to establish the conditions under which this tragic event occurred and to recommend changes that are required to reduce such incidents.
You’ve covered the issues here thoroughly and with great intelligence. It’s unfortunate that the headline feeds into the frustration and anger surrounding Castile’s death and the sense that there is no hope for change. Your concluding paragraphs are the gist of your commentary and where our attention should be directed. I’m glad to see that the University of Minnesota Law School has teachers of your caliber. Thank you for this.
Not affiliated with the law school
Harrison is not a lawyer and does not teach at the law school. She is a teaching specialist with a Ph.D. in English.
http://www.cehd.umn.edu/pstl/directory/harrison.asp
Law school? Her academic credentials are in English (BA, PhD),
…according to the U of MN web site:
http://www.cehd.umn.edu/pstl/directory/harrison.asp
From her listed experience, she offers herself as a presenter in matters involving diversity and multiculturalism.
Maybe the author wants to add something here to more fully flesh out her areas of expertise – I certainly don’t mean to short-change her here, but her academic credentials appear to be in English.
Another point: anyone can propose a piece to be published at MinnPost, and the fact that MinnPost publishes it shouldn’t be taken as an endorsement or validation of the views expressed. There are Community Voices columns published here which – over time – will convince you that no particular expertise is required !! I invite MinnPost’s dispute on these points !!
My error
I’m sorry for not reading more carefully her “credentials.” Don’t take it out on her.
Error
I think she should have been clear. Her writing implies that she knows something about the law. To anyone who actually went to law school, it’s clear that she does not.
Her teaching emphasis includes “story-telling”,
…according to her own words at the U of M site noted above. Excellent !! We all love a good story, and can enhance our own skill in story-telling.
However, per your comments, what we’re seeing here may be the intersection of story-telling and the law.
Facts are important
I wish people would acknowledge that the facts in the Clark and Castile cases are very different, and that those factual differences are important in determining whether charges are brought.
The police in the Clark case came into a situation where 1) Clark had allegedly physically abused a woman to the point where she needed medical attention, and 2) Clark allegedly interfered with the medical personnel trying to take her to the hospital. Clark’s DNA was not on the handcuffs, but it was on the officers gun.
Castile, on the other hand, was shot while seatbelted in his car at a traffic stop.
While there are witnesses who provided information in the Clark case that conflicted with the points above, those points are more than enough to get to reasonable doubt. Freeman didn’t cite only those points to be unfair – he did so because they show why the officers couldn’t be prosecuted.
As a lawyer, I get very frustrated by people like Jason Sole and Rachel Wannarka (who are cited in this article) who have a very poor understanding of the law and spread misinformation about how the law works. The link the author here cites to us nonsense.
This is a real problem, but it isn’t going to get fixed if people can’t be honest.
The result of any investigation of the Castile shooting, under current law, is highly unlikely to result in the firing or indictment of officer Yanez, as you so clearly point out.
that’s a completely different issue. The standard for suspending or firing a police officer is considerably different from that required to convict of a crime.
You are right, of course.
I should have said, “under current law ‘and policy.'” Harrison notes that, “without specific department policies governing de-escalation, officers like Ringgenberg and Schwarze can’t be disciplined or fired. We need to have clearer policies governing how officers approach and engage with citizens.”
She didn’t note any specific policy regarding de-escalation or implicit bias that might be used against officer Yanez in the Castile case, and the reporting so far has not uncovered a pattern of abuse. The standard that seems to protect officers in these cases is their feeling of being endangered. What I understand from her argument is that clearer policies are needed that can address the systemic racism and implicit bias that infect our justice system. To that I can only say, amen.
“Is it time to change the federal standard?”
“No”…the short answer. K.C. Harrison’s thesis question begs many questions; yet, it reduces the long-extended arguments to this seminal point. For me, the obvious sticking point is “explicit” vs. “implicit,” an extremely vital point of delineation, to be sure–and the basis for thoughtful discussion here by others.
Without fleshing out the particulars of Harrison’s thesis now, I cannot bypass her fundamental roadblock to reasoning: implicit racism. As an old white male of awareness, certainly of social history and community differentials, my sensibilities find affront in currently extreme notions of human relationships, particularly the hypothesis that white people are “implicitly” racist. That premise is far too dependent on non-scientific investigation to be taken into law…law that by its nature must rely on “explicit” evidence of wrongful acts.
Here’s a tiny nut among many bolts of my lineage: My genetic and national/cultural heritage takes me directly back to a 1600s Virginia Eastern Shore plantation, where my paternal progenitor arrived as bondsman, later becoming an independent small tobacco farmer (as did very many original settlers). Until just three years ago, I never knew that somewhere in the early 1800s, one Kentucky ancestor owned three black slaves–two field workers and one house helper–all freed via disposition of his last will and testament. That ancestry search also confirmed that “Burrell” has been a clearly important name all the way, coming directly into my immediate family branch AND also through at least one Kentucky black “Burrell Million” of the mid-1800s, who generated a family branch of his own that extends to today. That’s all I know about that so far. I naturally speculate as to why he was given this significant family name. Am I ashamed, as others might be? Absolutely not. I feel firmer in my non-racial cultural philosophy.
Am I implicitly “racist” because of this recent discovery? Given several small points, proponents of such nonsense (I do thoughtfully select this characterization) likely declare, “Yes!” Please know that I am “explicitly” not. Were I an “implicit racist” growing up here in the 1950s and ’60s, would not my sensibilities (or actions) have become “explicit”? Do others see why I tend to see this overall argument as one of “convolution” and not “convergence”? Are there many other white people with similar stories? Probably.
Harrison withdraws the body of her argument to “systemic accountability” regarding “systemic bias.” There the ground seems firmer, yet again, clearly seems laid over the muddy soil of “implicit bias.” Her thoughts are intellectually provoking and worthy of discussion. As for law, well, I’m comfortable in its foundations of “explicit” measurement. Seems we need to focus on the “explicit,” very much more and very much now.
Popularly Implicit: https://implicit.harvard.edu/implicit/education.html
Scientifically Implicit: https://www.math.ucdavis.edu/~kouba/CalcOneDIRECTORY/implicitdiffdirectory/ImplicitDiff.html
Racism
Personally, whether or not Officer Yanez has some obvious or non-obvious grudge against young, black men, he showed his inability to contain himself in a situation that should have, at worst, been a situation for caution, not panic. That, in my book, is a pretty good indicator that he’s not cut out to be a cop and should be fired.
That said, there are some pretty good clues that he had profiled Philando based on is race. His excuse for pulling him over in the first place was pretty thin. Seriously, a “wide nose?” That’s it? Days and miles from the crime that supposedly prompted Officer Yanez to pull him over, with no other link than a “wide nose?” Oh yeah, and a taillight. I had a headlight out the other day, and somehow, I managed not to get pulled over for having a small nose. White people with small noses probably committed some sort of crime sometime previous to my having driven with a headlight out within the general vicinity of my travels (I commute 20 miles each way–odds are good). Yet, no stop for me.
I’d like to see a similar discussion
of Minnesota’s homicide statutes and the manner they limit what can and cannot be prosecuted. It would help public understanding of the charging process, whether it be by a county attorney, a special prosecutor, or a grand jury.