Tom Pugh and Chris Roach
Police Reform is Needed in Kentucky and Across the United States
In a recent article on fivethirtyeight.com titled "Why It's So Rare For Police Officers To Face Legal Consequences" (https://fivethirtyeight.com/features/why-its-still-so-rare-for-police-officers-to-face-legal-consequences-for-misconduct/), journalists Amelia Thomson-DeVeaux, Nathaniel Rakich and Likhitha Butchireddygari did an excellent job in recognizing the problems faced by the victims of police misconduct. First, there is a veil of silence shared by both police departments and the officers that serve in them. Sometimes called the 'blue wall' or 'code of silence,' officers will refrain from disparaging other officers, even though there is obvious misconduct. Next, there is little chance of criminal charges for any police misconduct. This is due to several issues, including other police and sheriff's departments sharing the code, and the fact that prosecutors rarely want to be seen as the person who prosecutes the officers they deal with all the time. Even with special prosecutors, there is often a 'wink and a nudge' that grand jury proceedings will go smoothly and no indictment will be had. There is a saying that 'you can indict a ham sandwhich,' because probable cause is such a low standard, but police officers seem to get a pass. Plus, the public in general thinks that police officers 'can do no wrong' and thus could never commit a crime. Last, who serves as the witness against the police officer? The saying goes "dead men tell no lies" and the statistics prove that. According to the article:
"Updating this data is difficult and time-consuming, but Stinson was able to send us more recent data for prosecutions resulting from on-duty police shootings, since those are rarer and easier to track. That doesn’t include police killings that aren’t shootings, but Stinson told us that prosecutions for deaths like Floyd’s are especially rare. In fact, Stinson has found only 110 law enforcement officers nationwide1 have been charged with murder or manslaughter in an on-duty shooting — despite the fact that around around 1,000 people are fatally shot by police annually, according to a database maintained by The Washington Post. Furthermore, only 42 officers were convicted. Fifty were not and 18 cases are still pending. And as the table below shows, many of these convictions ended up being for a lesser offense — only five of these officers were convicted of murder (and did not have that conviction overturned)."
The George Floyd Protests center around a frequently litigated issue: whether or not an officer’s use of force was reasonable. George Floyd’s arrest had many other variables involved, including his race and the fact that the use of force resulted in George Floyd’s death, which arguably makes this deadly force. Based on the video evidence, the use of force was not reasonable, not only because it was deadly force, but it either a) likely violated the policies and procedures of the department and/or b) the policies and procedures of the police department were unconstitutional.
The biggest problem in all police excessive force cases is qualified immunity, a muddled legal doctrine that says that a police officer may be shielded from personal liability for discretionary actions performed in their official capacity if their actions violated clearly established constitutional rights. That doctrine may be re-evaluated by the Supreme Court this term. (See https://www.npr.org/2020/06/08/870165744/supreme-court-weighs-qualified-immunity-for-police-accused-of-misconduct). Clearly established is often the problem, since there must be a case that perviously held at the time of the violation that what the officer did was wrong. So someone has to have lost a case even though the violation was unconstitutional, so that officers are aware their actions are wrong. So somone gets screwed. As well, in excessive force cases, the other part is that "[A]n officer’s use of deadly force is reasonable if the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer." It's pretty much like early South Park episodes where Uncle Jimbo yells "it's coming right for us!" right before shooting a woodland animal, so he can circumvent the endangered species act. As long as the rabbit is a threat that is subjectively perceived, Uncle Jimbo can shoot the rabbit. What if an officer unlawfully enters your home? Are you allowed to use deadly force to protect yourself, or is the police officer justified in killing you, even though he is in your home, against the law, wielding a weapon? We are litigating that issue right now, and will let you know how it turns out.
The United States is a country that is hurting right now, and things may seem hopeless. But we must believe, and have hope, that a better future is available for everyone, regardless of race, national origin, political beliefs, cultural differences, sexual identity, or economic status. Pugh & Roach hopes and prays that we can emerge as a better nation. So, we are writing this blog in light of the current protests, to educate the public.