Mediaboss Marketing

A good sign that apolicy is indefensible is when its proponents cannot bring themselves to describe it accurately. Such is the case with the doctrine of qualified immunity, which is currently the subject of afurious disinformation campaign led by the lawenforcement lobby (see here, here). The most recent mouthpiece for this campaign was Tucker Carlson, who two nights ago mounted aspirited defense of an imaginary legal rule that he called qualified immunity, but which bears only the faintest resemblance to the actual doctrine. Reasons Billy Binion and IJs Patrick Jaicomo have already done agreat job explaining some of Carlsons biggest mistakes, but there is so much here that is either highly misleading or outright false that its worth unpacking in full. Strap in!

By way of background, the inciting incident for Carlsons segment on qualified immunity was the Reforming Qualified Immunity Act introduced by Senator Mike Braun (R-IN) earlier this week. As Idiscussed here, what this bill would effectively do is eliminate qualified immunity in its current form and replace it with limited safeharbor provisions. The main effect would be that people whose rights are violated would no longer need to find prior cases where someone elses rights were violated in the same way before being allowed to proceed with their claims. However, if defendants could show that either (1) their actions were specifically authorized by astate or federal law they reasonably believed to be constitutional, or (2) their actions were specifically authorized by judicial precedent that was applicable at the time, then they could avoid liability.

In other words, this bill doesnt go far as the AmashPressley Ending Qualified Immunity Act, which would eliminate the doctrine entirely. But it is still asignificant proposal that both meaningfully addresses and corrects the core absurdity of the current qualified immunity regime (the clearly established law standard), while preserving immunity in those relatively rarebut more sympatheticcases in which defendants are specifically acting in accordance with applicable statutes or judicial precedent. And, unlike the Justice in Policing Act, Senator Brauns bill would reform qualified immunity across the board for all government agents, not just members of law enforcement.

So, what did Tucker Carlson have to say about this bill?

Braun has introduced legislation in the Congress that will make it easier for leftwing groups to sue police officers.

I wont dwell on this point, because Carlson is clearly just being snarky here. But suffice to say, Brauns proposal is not specific to leftwing groups, and indeed, not specific to police at all. Rather, it just amends Section 1983,our primary federal civil rights statute, which permits all citizens to sue government agents who violate their rightsto clarify that defendants cannot escape liability, just because there is no prior case with similar facts.

Under current law, police officers in this country benefit from something thats called qualified immunity.

Again, qualified immunity is not limited to police officers. The defense can be raised by all state and local public officials who have civil rights claims brought against them, including corrections officers, public school officials, county clerks, and other municipal employees. Still, the reason qualified immunity is such ahot topic right now is because of its application to law enforcement, so Ill stop harping on this issue. Also, the suggestion that police officers actually benefit from qualified immunity is highly suspect, but well get to that later

Qualified immunity means that cops cant be personally sued when they accidentally violate peoples rights while conducting their duties. They can be sued personally when they do it intentionally, and they often are.

Here is where Carlson plunges headfirst into fantasy. This accidental/intentional distinction hes describing has no basis in qualified immunity case law. Indeed, under the clearly established law standard, adefendants state of mind has no bearing whatsoever on whether they are entitled to qualified immunitya defendant could be explicitly acting in bad faith, with the express intent to violate someones rights, and still receive immunity, so long as there was no prior case involving the precise sort of misconduct they committed.

The best illustration of this point is the Ninth Circuits recent decision in Jessop v. City of Fresno, where the court granted immunity to police officers alleged to have stolen over $225,000in cash and rare coins while executing asearch warrant. The court noted that while the theft [of] personal property by police officers sworn to uphold the law may be morally wrong, the officers could not be sued for the theft because the Ninth Circuit had never specifically decided whether the theft of property covered by the terms of asearch warrant, and seized pursuant to that warrant, violates the Fourth Amendment. In other words, it didnt matter that the officers were intending to break the law; not even the defendants here claimed that they accidentally stole from this suspect. All that mattered was that the court hadnt confronted this particular factual scenario before.

In other words, police officers are not above the law.

It is true that police officers are not literally immune from liability for their misconduct (unlike prosecutors, who actually do receive absolute immunity for violating peoples rights). But police officers are held to avastly lower standard of accountability than the citizens they police. For regular people, its awellknown legal maxim that ignorance of the law is no excuse. Even in cases with serious criminal penalties, courts routinely permit the prosecution and conviction of defendants who had no idea they were breaking the law. If anything, you would expect law enforcementpublic officials specifically charged with knowing and enforcing the lawto be held to ahigher standard of care than ordinary citizens. But in fact, theyre held to afar lower standard. Ignorance of the law is no excuseunless you wear abadge.

Cops who commit crimes can be punished . Cops who make lesser mistakes can be disciplined, suspended, or fired, and they often are. Thats the system that we have now. It works pretty well.

If this assertion doesnt cause you to burst out laughing, then you havent been paying attention to our criminal justice system for the last several decades. Suffice to say, no, our system is not working pretty well. It is extraordinarily difficult to convince prosecutors to bring charges against police officers, much less to obtain convictions (see here for alist of especially notable nonconvictions). And internal discipline measures are laughably feeble, due in large part to the power of police unions. The inadequacy of both criminal prosecution and internal discipline as meaningful accountability measures is exactly why we need arobust civil remedyand therefore exactly why qualified immunity is such aserious problem (weve argued this point in much more detail in our crossideological amicus briefs before the Supreme Court).

Civil immunity, by the way, has precisely nothing to do with anything that happened in the George Floyd case, just in case youre wondering. That cop is in jail.

Qualified immunity applies in civil law suits, not criminal prosecutions, so its true that qualified immunity will not limit the criminal prosecution of Derek Chauvin. But Carlson is wrong that the doctrine has nothing to do with anything that happened in the George Floyd case, for two reasons.

First, if George Floyds family does decide to bring acivil rights claim against Chauvin and the other officers on the scene, it is entirely possible that the officers would be able to invoke qualified immunity, depending on whether theres aprior case in the Eighth Circuit with similar facts (i.e., an officer kneeling on anonresisting suspects neck for along period of time while the suspect says he cant breathe). Even if Chauvin is convicted of murder, thats no guarantee that he wouldnt be entitled to immunity in acivil suit. Whether aprosecutor can prove the elements of murder beyond areasonable doubt is simply adifferent legal question than whether prior case law would make the violation of George Floyds rights clearly established, under modern qualified immunity doctrine.

Second, the senseless violence committed by Derek Chauvin and the stunning indifference of the other officers standing nearbyare the product of our culture of nearzero accountability for law enforcement. While that culture has many complex causes, one of the most significant is qualified immunity. Section 1983 was supposed to be the primary means of holding accountable government agents who violate our constitutional rights. Qualified immunity has severely undermined the deterrent effect of that statute, and thereby contributed to an environment where police simply do not expect to be held to account when they commit misconduct.

Qualified immunity has worked so well because police officers, maybe more than anyone else in society, must make difficult splitsecond decisions on the job, and alot. They do it constantly. Whether to arrest someone, whether to conduct asearch, whether to use force against asuspect. Sometimes, actions they sincerely and reasonably believe are legal are found later by courts to be unconstitutional.

Here, Carlson regurgitates what is probably the most commonly invoked defense of qualified immunity:that it is necessary to protect the discretion of police officers to make splitsecond decisions. And, no surprise, it is profoundly mistaken. This was the very first issue Iaddressed in my previous post on The Most Common Defenses of Qualified Immunity, and Why Theyre Wrong, but the short answer is that our substantive standards for determining what actions do and do not violate the Fourth Amendment already incorporate substantial deference to onthespot police decisionmaking. In other words, when police sincerely and reasonably make adecision about whether to arrest someone or use force, they almost certainly will not have broken the law in the first place. Qualified immunity is therefore unnecessary to protect this discretion, because the doctrine, by definition, only applies when adefendant has committed aconstitutional violation.

Moreover, as aI discussed above, qualified immunity has nothing to do with whether an officer sincerely and reasonably believed their actions to be lawful. It doesnt turn on their state of mind at all. All that matters is whether acourt determines that the facts of prior cases were sufficiently similar to hold that the law was clearly established.

The Reason article by Billy Binion aptly notes that Carlsons assertion here can only be explained by alack of familiarity with qualified immunity case law, and provides numerous examples of the sort of egregious injustices this doctrine regularly permits:

Take the cop who received qualified immunity after shooting a10yearold while in pursuit of asuspect that had no relationship to the child. The officer, sheriffs deputy Matthew Vickers, was aiming at the boys nonthreatening dog. There were also the cops who were granted qualified immunity after assaulting and arresting aman for standing outside of his own house. And the prison guards who locked anaked inmate in acell filled with raw sewage and massive amounts of human feces. And the cop who, without warning, shot a15yearold who was on his way to school. And the cops who received qualified immunity after siccing apolice dog on aperson whod surrendered. It doesnt take much thought to conclude that those courses of action were morally bankrupt.

Just so. Okay, back to Carlsons defense of whathecallsqualifiedimmunity:

Sometimes the very laws [police officers] enforce are struck down. Thats not their fault, obviously, but without qualified immunity, police could be sued for that personally.

Only atiny fraction of lawsuits against police involve claims that the laws theyre enforcing are themselves unconstitutional. But Carlson actually is correct that, without qualified immunity, police officers could be held liable for enforcing unconstitutional statutes. Indeed, that sort of application was probably the principal evil that Congress had in mind when it enacted Section 1983in 1871, as part of the Ku Klux Klan Act. Congress was well aware that southern states would continue passing laws infringing on the constitutional rights of recently freed slaves, and they wanted to deter state and local officials from carrying out such laws. Executive officersno less than legislators or judgeshave an independent obligation to enforce and respect constitutional limitations.

Still, one can understand the seeming unfairness in holding defendants personally liable when the only conduct alleged to be unlawful was executing astatute they reasonably believed to be valid. But,for that very reason, this is one of the two explicit safe harbors included in Brauns bill! His proposal specifically states that adefendant will not be liable under Section 1983 when the conduct alleged to be unlawful was specifically authorized or required by aFederal statute or regulation, or by astatute passed by the primary legislative body of the State in which the conduct was committed. In other words, Carlson is either entirely unaware of or willfully concealing the fact that Braun agrees with his own argument here, and has already incorporated it into his bill.

[Police officers] could be bankrupted, they could lose their homes. Thats unfair. It would also end law enforcement. No one would serve as apolice officer.

This is another issue Ialready addressed in my common defenses post, but Ill repeat the main points here. First, its crucial to understand that even today, police officers are nearly always indemnified for any settlements or judgments against them in civil rights claims. This means that their municipal employers, not the officers themselves, actually end up paying. Joanna Schwartz, aUCLA law professor and probably the foremost scholar of qualified immunity, demonstrated in a2014 article called Police Indemnification that, in her study period, governments paid approximately 99.98% of the dollars that plaintiffs recovered in lawsuits alleging civil rights violations by law enforcement. In other words, even when plaintiffs do overcome qualified immunity, the individual police officers rarely pay adime.

I have written elsewhere about how this practice of nearautomatic indemnification is itself problematic, because it fails to provide for individualized accountability for officers who violate peoples rights. Abetter practice, as my colleague Clark Neily has also discussed, would be to take some portion of the money that municipalities already spend on civil rights judgments, and instead put that toward an insurance allowance for individual officers. Nevertheless, as things currently stand, officers are almost never required to pay anything personally, and that wont change if we eliminate qualified immunity. The idea that police would be bankrupted or lose their homes is reckless fearmongering.

Also, with regard to the idea that eliminating qualified immunity would end law enforcement, Iwonder whether Carlson is aware that hes made atestable prediction? After all, as Idiscussed here, Colorado recently enacted acivil rights law that effectively removes the defense of qualified immunity for officers who violate peoples rights under the state constitution. Will this end law enforcement in Colorado? If Tucker Carlson or anyone who agrees with him would like to make abet on this question, Ill give generous odds.

And thats why the Supreme Court has upheld the principle of qualified immunity for decades now, often unanimously, both sides agreeing.

I will give Carlson thisheis absolutely right that the Supreme Court has shown remarkable tenacity in sticking to one of the most embarrassing, egregious mistakes in its history. Section 1983 clearly says that any state actor who violates someones constitutional rights shall be liable to the party injured, and the commonlaw history against which that statute was passed did not include any acrosstheboard defenses for all public officials. The Supreme Courts invention of qualified immunity was abrazen act of judicial policymaking that effectively rewrote this statute, and its shameful that the Justices have repeatedly declined the opportunity to correct this error.

What is surprising, however, is why Tucker Carlson approves of such blatant judicial activism in this case. After all, Carlson himself recently bemoaned how courts increasingly have come to see themselves not as interpreters of the law, their constitutional role, but as the countrys main policy makers. So, does he want the Supreme Court to faithfully interpret the text and history of Section 1983, or to continue imposing their own policy preferences?

But now, in order to placate the rioters, who he believes have more moral authority than the police, Senator Mike Braun of Indiana would like to gut qualified immunity, and make it easier for cops to be sued personally for mistakes.

I already discussed above how Senator Brauns bill does not wholly abolish qualified immunity, but rather replaces the clearly established law standard with two limited, principled safeharbors. Ialso discussed how Section 1983 doesnt make cops liable for mistakes,it makes them liable for constitutional violationsand the Fourth Amendment itself is already incredibly deferential to police decisionmaking. An officer hasnt violated the Fourth Amendment because they made the wrong call with regard to an arrest or use of force; they only violate the Fourth Amendment when they act objectively unreasonable, under the circumstances known to them at the time.

But Ido want to address this idea of moral authority. Setting aside the nonsense about placating rioters, how does it affect the moral authority of the law enforcement community when we hold police officers to alower standard of liability than any other profession? As Ive discussed previously, the proponents of qualified immunity are profoundly mistaken if they think the doctrine is doing the law enforcement community any favors. If you want to restore the moral authority of the police, you cant let police officers escape liability for egregious and immoral misconduct. If you want people to respect officers as professionals, then the law has to hold them to professional standards.

Qualified immunity, more than any other single rule or decision, has eroded the moral authority of the police, not protected it. And that is exactly why the more thoughtful members of law enforcementsuch as the Law Enforcement Action Partnership and the National Organization of Black Law Enforcement Executiveshave explicitly called for the elimination of qualified immunity. As Major Neill Franklin (Ret.) has explained: Accountability measures that show an agency is serious about respecting the rights of all of its residents help the police as much as they help the communities we serve. Theres no better way to restore community trust. And we cannot do our jobs without trust.

* * *

Carlson finishes his segment with arant about Charles Koch that would make Nancy MacLean blush, and then asks whether Senator Braun would be willing to defend the absolute immunity that members of Congress enjoy. This latter question is interestingenough on its own, but Carlson obviously just intends it as a gotcha, not as aserious point of discussion.

But the bottom line is that Tucker Carlson has done aprofound disservice to his viewers and to the country by further propagating blatant misunderstandings of what qualified immunity actually is. Its honestly hard to say whether Carlson himself has been duped, or whether he is willfully joining the disinformation campaign of the lawenforcement lobby. But either way, nobody should take what hes saying at face value. Iremain interestedto see whether any selfprofessed advocate of qualified immunity will defend the actual doctrine.

Go here to see the original:
Tucker Carlson's Fanciful Defense of What He Imagines Qualified Immunity To Be - Cato Institute

FT. WAYNE, Ind.Ft. Wayne and the Allen County Sheriffs Dept. are being sued by protesters and by the ACLU for the use of tear gas, rubber bullets and pepper spray during protests.

The ACLU calls them chemical weapons, and accuses the police of pulling protesters out of private businesses where they were seeking shelter from the gas, and of keeping people from leaving the Martin Luther King, Jr. Bridge, where they were protesting, before deploying tear gas.

The lawsuit is similar to the one filed against the City of Indianapolis last week, and other lawsuits around the country.

The statement from the ACLU talks about police actions against lawful protesters, but does not address measures taken against people who may have been rioting or damaging businesses.

But, Ken Falk, legal director for the ACLU of Indiana, said last week that he believes Fourth Amendment protections keep police from being able to use what he called unreasonable force against protesters and rioters alike.

According to the ACLU of Indiana complaint, on May 29, protesters marched to the nearby Martin Luther King Bridge where police blocked protesters from leaving the bridge in either direction, and then shot tear gas canisters at them. FWPD and members of the Sheriffs Department have used force to prevent peaceful protesters from gathering on the Courthouse Green and in other public places in Fort Wayne, read the news release.

The release mentions the Ft. Wayne Police Dept., but does not say the police department is a defendant.

Police must not respond to protesters speaking out against police brutality with yet more brutality. We will not let these violent attacks on our constitutional rights go unchecked, said Ken Falk, legal director at the ACLU of Indiana. Excessive use of force against protesters chills free speech, and widens the rift of distrust between communities and the police that are sworn to serve them.

See more here:
Fort Wayne, Allen County Sheriff's Department sued by ACLU for using tear gas on protesters - 953mnc.com

By Terrence Alladin

In the past weeks, probable cause has lost all meaning.

The Fourth Amendment of the Constitution states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

While the Constitution does protect against arbitrary arrest, it does not specifically define what is meant by probable cause.

That definition comes from the Supreme Court ruling Brinegar v. United Stateswhich states, Where the facts and circumstances within the officers knowledge, and which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed.

Further, Blacks Law Dictionary defines probable cause as as the facts and evidence that lead many to believe that the accused committed a crime. It only provides grounds to allege the commission of a crime and thus the accused can be arrested.

In sum, probable cause to make an arrest exists when an officer has knowledge of such facts as would lead a person to believe that a person has committed, is committing, or about to commit a crime. Any person, regardless of socio-economic status, profession, political affiliation, race, gender, religion or other characteristic, can be arrested when law enforcement has reason to believe the person was involved in the commission of a crime.

These are the hard lessons Ive had to teach my son about being Black in America | Opinion

The next question then is: What is a crime?

A crime is any act or omission that violates a public law and can result in punishment. Depending on the act or omission, a person can be committing a federal, state or local crime.

Nowhere in the Constitution or any other document laying out the proceedings for arrest in the event of probable cause does it specify that law enforcement officers themselves are exempt from these proceedings.

Law enforcement in some states are beginning to understand this reality and are acting upon it. The officers involved in the killing of George Floyd in Minneapolis in May were all finally arrested earlier this month. The officer who shot and killed Rayshard Brooks has beencharged with murder.

Officer Derek Chauvin had already restrained Floyd, and was therefore not acting within the constraints of the City of Minneapolis Police Department Manual section 5-311, which permits neck restraints only when the officer is trying to get control of an individual who is actively resisting or exhibiting active aggression towards the officer.

Senate panel unanimously passes ban on police chokeholds

As such, kneeling on the neck of a person who is already restrained, in excess of eight minutes, is without debate a crime. Moreover, it was not only an unlawful act, but it was a particularly brutal act that saw Floyd begging and pleading for assistance until his final breath.

Officer Garret Rolfe, who hassurrendered to face charges in Brooks death, appears to have violated Atlanta Police Department policy regarding the use of deadly force.

His actions also fail to comport with the Supreme Courts findings inTennessee v. Garneras to when an officer may appropriately use deadly force against a fleeing suspect.

A reasonable person reviewing these facts is left to believe that shooting a fleeing suspect in the back that presents no lethal threat to the officer or the public is not only an unreasonable use of force but, more importantly, a crime.

But it took days and weeks for charges to be brought and arrests to be made in the killings of both Floyd and Brooks. Police officers are treated differently by prosecutors as a result of their occupation.

Everyday citizens, on the other hand, are arrested and charged for crimes based on probable cause. Some of those arrested and charged are found innocent, charges are dropped and others are convicted. Some are killed before they can stand trial.

There should be no difference in the application of probable cause as a result of a persons socio-economic status, profession, political affiliation, race, gender, religion or other characteristic. Equality and fairness in the criminal justice system cannot be achieved if laws are not applied equally to those charged with enforcing them.

Terrence Alladin is an assistant professor of criminal justice at Lebanon Valley College in Annville, Pa.

Read the original here:
Equal protection under the law means treating bad cops like any other criminal | Opinion - Pennsylvania Capital-Star

Burke County Sheriff Alfonzo Williams explains his position in the Rayshard Brooks shooting.

It is not difficult to determine right and wrong. It is colorless. The law must in all cases remain constant to seek that which is right, just, fair and equitable.

Doing the right thing is not always easy.

When I was asked by the Augusta Chronicle whether the recent law enforcement shooting of Rayshard Brooks was justified, I undoubtedly said the actions of the Atlanta Police Department were supported by the facts, law, and proper procedures.

Period.

In any court of law, credentials are required prior to the introduction of expert opinion. My professional law enforcement opinion is supported by: (1) 30 years of law enforcement experience; (2) two masters degrees; (3) service as a district attorney investigator; (4) eight years as a violent crimes investigator; (5) serving as a chief of police for a municipal and a public school agency; (6) directorship of a police academy; (7) 15 years as a criminal justice adjunct instructor at a community college; and (8) serving as an elected county sheriff.

My determination that the Brooks shooting was justified is scientific, one based on expertise, provable law and extensive standardized practices.

Constitutionally, the lawful of use of use of force is grounded in the Fourth Amendment. Graham vs. Connor, 490 U.S. 386 (1989) established what is commonly referred to the "objective reasonable standard" by which all peace officers across the country are governed. If the officer did as any other would have done on the scene when making a split-second judgment under tense, uncertain and rapidly evolving circumstances, the force is reasonable.

This is an objective standard; 20/20 hindsight is not a factor.

Georgia statutory law, O.C.G.A. 17-4-20, tells us a peace officer may use deadly force to apprehend a suspected felon only when the officer reasonably believes the suspect: (1) possesses a deadly weapon; (2) poses an immediate threat of physical violence to the officer or others; or (3) has committed a crime involving the infliction or threatened infliction of serious physical harm.

This was the methodology I followed. Thoroughly sifting through the video footage in an agenda-free, scientific manner led to a clear conclusion the shooting was justified. There is simply no way to credibly support prosecution here.

The Rev. Dr. Martin Luther King Jr. said, "The ultimate measure of a man is not where he stands in moments of comfort and convenience, but where he stands at times of challenge and controversy."

To remain completely silent at a time such as this would fail Dr. King. It would place officers around this country in harms way while they protect innocent civilians.

Just imagine your unsuspecting wife, who had left home to go to the convenience store just across from the Wendys for a gallon of milk, is suddenly approached by a fleeing suspect in possession of an officers weapon, and he kidnaps her and demands she get him out of the area to avoid capture.

Or imagine getting a call at 2 a.m. to learn a loved one has been killed by a drunk driver later discovered to be Brooks.

Or a newlywed with child anxiously awaiting her husbands arrival at the end of his shift, met at the door by a somber-faced lieutenant and chaplain explaining her husband did not survive a deadly-force encounter.

To remain silent invites mayhem on the streets. In the Brooks case, silence sends a message it is permissible or perhaps even encouraged to drive drunk, disobey lawful commands, attack law enforcement, disarm uniformed police, flee after a felonious assault and turn back toward the officers firing a weapon, endangering countless others in a public location. Muteness suggests no one using force against an officer should expect to be met with a similar or higher level of force.

Public safety suffering in the name of convenient politics should be condemned and denounced.

Always.

This is not to say force is always called for, reasonable, or legal. The George Floyd case in Minnesota was appalling and quite despicable. And I have said so. When the Amaud Arbery shooting came to light, I expressed outrage over the homicide and appreciation toward the Georgia Bureau of Investigation for moving so quickly to arrest.

Improvements in policing are needed across the country; Georgia is no exception. To this point, on June 2 prior to the Brooks case I wrote Gov. Brian Kemp to detail needed reforms, including:

Requiring four-year degrees for every law enforcement officer.

Mandate every police agency follow proven certification standards in the same way that we do teachers, doctors, nurses and cosmetologists.

Call on state and federal lawmakers to create legislation with minimal standards for law enforcement agencies.

Create a federal retirement system for law enforcement officers in order to recruit, hire, retain and further train the most qualified candidates.

Require officers undergo an extensive background check similar to military top security clearances complete with psychological assessments.

Make law enforcement reform a priority, akin to the efforts devoted to international and domestic terrorism.

The letter stressed we should move swiftly to employ these principles, and that I would offer to be of service.

It is utterly shameful that some who are in positions to speak out about injustices remain silent. While many fellow law enforcement leaders across the country joined together to denounce the unjustified killings of Arbery and Floyd, few have done similarly with the justified use of force in the Brooks case. The same goes for the gunning down by police of a six-year-old autistic child in Louisiana, the 41 people shot and six murdered in a single day in Chicago, or the law enforcement officers killed and wounded in recent riots. Law enforcement voices should sound off against these injustices too.

Law enforcement and the public we serve would all be in a much better place if police officials put the truth above political convenience. Professionalizing ourselves should be constant priority, rather than waiting on yet another movement to dictate some calculated reaction!

There is nothing to be learned from the second kick of a mule.

We can all do better.

It begins and ends with the truth and willingness to speak it.

The writer is sheriff of Burke County, Ga. He recently won reelection with more than 80% of the popular vote.

Read the original:
Guest Column: Why the Rayshard Brooks shooting was justified - The Augusta Chronicle

Body cameras captured a Black Washington State University student facedown on the blacktop in February 2019. David Bingham called for a police officers help moments after hed been pepper-sprayed, shocked with a Taser and handcuffed.

Sometimes police only get seconds to think, Pullman Police Chief Gary Jenkins said.

In this case, two and half seconds passed between Officer Alex Gordon yelling Stop, police! and pepper spray being fired into Binghams eyes.

Gordon had arrived outside a Pullman bar to find the 21-year-old Bingham in a fistfight with another Black WSU student, George Harris. As Gordon approached, he said the fight appeared to be mutual, making it legal under state law, but in violation of city code.

Bingham punched Harris from on top. Gordon pepper-sprayed Binghams face, missing Harris. Harris punched Bingham as he stepped back, pepper-sprayed. Eyes squeezed shut, Bingham said, he slammed Harris to the ground and Gordon shot his Taser into Binghams side.

Harris, unharmed by police, walked away with a warning for violating the citys fighting code. Bingham was arrested for fourth-degree assault and obstructing law enforcement, both misdemeanor charges the prosecutor dropped days after the body cam footage was released, Bingham said.

If he got force used on him, he should probably be under arrest for something, Officer Wade Winegardner said in body cam footage, moments after placing a third Black WSU student in a chokehold.

That student, Damani Thomas, would be arrested for obstruction after filming police with his cellphone and refusing to back away.

The Fourth Amendment bans unreasonable seizures, which include police use of excessive force. The Supreme Court decision Graham v. Connor defines reasonable force with three criteria: severity of the crime, whether the suspect poses an immediate threat, and whether the suspect is resisting arrest.

In this case, Harris told police he wanted to see Bingham prosecuted. Gordon argued against arresting Harris. Officers at the scene argued, If were using force on people, then we need to do a criminal charge, as an out-of-view officer said in the video. Once they determined Harris had not been hit by the pepper spray, they agreed to let him go.

When we have to use force to protect people, even if people say everything is good and we let everybody walk away, someone later on talks to friends who are law students. They get advice from people saying, Hey, if officers used force on you, you need to file a complaint. If you didnt get arrested, they shouldnt have used force, Jenkins said. It makes it really complicated.

Since 2017, Pullman PD has paid more than $400,000 in settlements of excessive force lawsuits involving Gordon, including a suit over using a Taser and injuring Black WSU student Treshon Broughton, according to settlement records released by the police department.

Until Bingham watched the body cam footage, he didnt think his injuries influenced his charges. But from the start, he believed his race played a part in Gordons quick decision to use pepper spray and a Taser, and, in Binghams view, Harris was simply lucky to miss Gordons line of fire.

Pullman police arrest Black people and use force on Black suspects at four times the citys Black population rate, based on arrest data from the past five years and 2019 census estimates.

Gordon had one of the highest Black arrest rates in the department 17.8% of people he arrested were Black, about six times the Black population rate.

While Pullman police have only used Tasers on 12 people in the past five years, five of them were Black.

Jenkins said he was happy when WSU criminal justice researcher David Makin found no evidence that Pullman police were more likely to use force, or to use it faster, with minority suspects. Makins results, based on an analysis of body camera footage, have not yet been published.

Jenkins said Pullman PDs excessive force settlements are determined by the departments insurance providers, who take into account what they think a jury would find.

I dont think they did anything unlawful, Jenkins said, referring to the Broughton case. I dont think they used excessive force. I do think it looked horrible. It looks horrible to the public.

But he couldnt point fingers at Gordon or the other officers involved. Though the lawsuit alleged excessive force, false reports and malicious prosecution, the officers conduct was within policy and training, Jenkins said.

Nine months after the incident involving Bingham, Jenkins said the department underwent new training from a use-of-force expert because the chief wasnt happy with what hed been seeing.

Arrest rates of Black people remained at about 12% in 2019, consistent with previous years.

I cant blame the officer for any actions that might not look good, or someone else might think is excessive, if he was doing everything the way we trained him, Jenkins said.

Bingham said the impacts of police force go beyond what a jury might see through the lens of a body cam.

Removing the Taser barbs from his side cost Bingham $2,000 in hospital bills, which he said the department refused to pay for. Jenkins said if police injure an uninsured suspect, Pullman Regional Hospital will usually write off their medical expenses. Bingham said someone in the police department told him to file for a loan.

Bingham also photographed dozens of abrasions on his torso and wounds on his rib cage where the barbs had been lodged. But the marks arent what stuck with him.

It was really traumatizing. It did a lot to me mentally, Bingham said. Bruises and scars can be healed, but when you have people in power look at you like youre the problem and they dont even give you a chance, it makes you realize theres a lot of change that needs to happen with police.

Police who arrived later made a bad situation worse, Bingham said. Gordon was the only officer whod seen the fight, but a group of police who arrived after the action huddled up to decide Binghams fate.

As I was sitting there I could hear the officers, and they didnt even know the real name of the person I got in the altercation with, Bingham said. From then on, I just knew it wasnt going to be good for me.

The department keeps careful track of uses of force. Supervisors review every situation to check for patterns, Jenkins said.

The department uses a numeric system to flag police for review. Whenever an officer uses force, receives a complaint or causes a traffic collision, he or she will get a point. If an officer accumulates three points in a 12-month period, that leads to a review.

In the past 12 months, Gordon and Winegardner both have amassed eight points for uses of force.

In Binghams case, using a Taser made sense to Jenkins.

I think if youre the person thats being victimized at the time, you want the officer to use whatever is the most effective and expedient method to have that assault stopped, Jenkins said. If we were sued, I think our best witness would be Mr. Harris, who was at the wrong end of Mr. Binghams fist.

Harris declined to be interviewed for this story.

Bingham told Gordon at the scene that he was defending himself. He claimed Harris started the fight. When Gordon pepper-sprayed Bingham, Harris took the opportunity to get punches in, according to Binghams account.

Police interference in the fight left him blinded and vulnerable, and he felt sure that police would not protect him, Bingham said. Slamming Harris to the ground seemed to be his only option.

It was either protect myself or get hurt, Bingham said in the police car. I just didnt want to get hurt. So when you shot me, the only thing in my mind was, as soon as I go down hes gonna start stomping me out.

In that situation, Bingham told Gordon that police couldnt protect him.

Low trust of police officers results in more police uses of force, Jenkins said, and lack of trust is one of several factors that could lead to disproportionate arrest rates of Black men. He said Black suspects seem to resist arrest more often, and he can understand why.

Where that person comes from makes a big difference in how they interact with officers, Jenkins said. People from rural communities seem to have a better experience than those that come from an inner city. (People from cities) are expecting police not to have respect for them or to harass them.

In the case last February, Thomas, the Black student who recorded the struggle with police on his phone, begged Officer Winegardner not to shoot him as Winegardner tightened the handcuffs.

Please dont kill me. Please dont shoot me. Please, Ive had cops put a gun to my head, Thomas said.

The since-graduated criminal justice major and Vice President of WSUs Black Men Making a Difference (BMMAD) had been filming with his phone as Winegardner cuffed Bingham. Police told Thomas to back up. He didnt, and Winegardner put him in a chokehold before arresting him for obstruction.

I have a right to record, you have no right to (expletive) arrest me, Thomas said.

Dashcam video recorded Thomas explaining to a WSU police officer why he had his phone out.

You can tase them, you can beat them with your (expletive) batons, you can choke them out, you can stomp them, Thomas said to the WSU officer. I will make sure you do not shoot them, because that will end their lives.

Thomas said hed seen one of his friends shot by police.

In the past five years, Pullman police have not used a firearm, according to use-of-force records.

Of the 72 more extreme uses of police force in the past five years in Pullman including chokeholds, hits, kicks and knee kicks approximately one out of five came from Wine- gardner.

Individual officers arrest rates and number of uses of force will be related to the shifts they choose and areas they work in, Jenkins said, adding that Gordon and Winegardner choose graveyard shifts near WSUs campus, where police run into more criminal activity,

Despite working different beats, a handful of officers arrested people at rates close to the citys demographics. Overall, three out of four officers arrested Black people at double or more the Black population rate.

Another factor in disproportionate arrest rates could be callers. More than 60% of incidents Pullman PD respond to are non-officer-initiated, meaning police are responding to calls, Jenkins said.

Pullman police get refresher courses on cultural competency each year, Jenkins said, but the best way to avoid biased policing is hiring the right people.

When asked if hed hire someone whose actions led to a large settlement in an excessive force lawsuit, he said it would depend on the circumstances. The presence of a lawsuit without a verdict would not be enough on its own to disqualify a job candidate, he said.

I believe in other jobs, if you slip up more than once, youre out, Bingham said. (Gordon) is a police officer, and his only job is to protect and serve the community hes in. I dont know who he is as a person outside of his job, but were talking about lives. There are things after this. Whats that persons mental state supposed to be after youve done this to them? How are they supposed to go on with their life?

Bingham said he knew how to interact with police. His uncle is a police officer, and he knew to stay calm. But Black men have reason to be scared, he said.

In the police car, when Gordon asked if Bingham knew who had been recording the scene with his phone, Bingham started to cry.

Sir, to be honest, I have no idea what happened after you Tased me. I dont know who was trying to record, Bingham said through tears. Were in a time period where a lot of African American males are being shot unarmed, so I think he was just recording because he doesnt want that to happen.

Gordon told Bingham, in an exchange captured on dashcam footage, that he feels the situation too, and lives it every day.

The department implemented body cams in 2013, Jenkins said, before the Ferguson, Missouri, police shooting of an unarmed 18-year-old Black man in August 2014 that sparked a national movement.

We wanted to be transparent, we wanted to have that accountability, and we knew that the community would hold us accountable, Jenkins said. If the community has issues with how were doing things then we want to make adjustments.

Body cam footage did lead to Binghams charges being dropped, he said, but it hasnt led to accountability.

There just arent enough eyes on them, Bingham said. They can get away with anything.

Excerpt from:
Questions of bias raised by Pullman police arrest of Black man using pepper spray in February 2019 - The Spokesman-Review