Public Trials for Public Killings
At least two people a day are shot to death by police officers in the United States each and every day. As of Tuesday, the total for the year is 895, according to a website updated daily by The Washington Post — 66 folks have been killed in the past 30 days. Two of this year’s deaths were in Connecticut; both decedents were white males.
I did not call the persons shot “victims” for a reason. Police officers are trained to use deadly force, and they have the right to use it when faced with near and grave danger. Just how officers are trained to perceive risk and to defuse it is something about which the public hears little.
The families of those killed rarely want to hear about the justification for shooting a loved one to death. Families often want justice, or, at the very least, answers about why it was necessary to shoot to kill.
When police officers and police departments don’t give answers, families, and communities, grown distrustful, even angry. In Chicago, the streets are filled with angry people. They are right to be angry. Laquan McDonald was shot to death on the streets of the Windy City more than one year ago. It took a court order to force the city to release a video of the shooting. It appears as if there was no excuse for shooting Mr. McDonald to death. None.
But officers gave an excuse moments after the shooting. A police union official told the world the young man had lunged at officers with a knife. The officers had to shoot, they were trained to shoot, to prevent Mr. McDonald from harming them.
That’s not what I saw on the videotape.
I saw what was on the other side of a blue wall of silence and lies. What I heard were police officers making up a story about a dead man with the hope that no one would ever learn the truth. These sort of lies are far more common than most folks like to think.
Mayor Rahm Emanuel fired the Chicago police chief this week, reasoning that the public had lost confidence in the police force. New leadership is required to foster trust, the mayor said.
It will take more than a new police chief to restore trust. It will take a renewed commitment from the federal courts to permit public trials of cases alleging police misconduct.
Federal judges like to discuss such things as the “vanishing trial.” A whole generation of lawyers is maturing with little or no experience in a courtroom, on their feet in the presence of a jury, making a case on behalf of their client.
Why so few trials? On the criminal side, most defendants plead guilty to one crime or another. Some 97 percent of federal criminal cases end with a guilty plea; 95 percent of cases in the states end as a result of negotiated pleas.
On the civil side, judges like to blame the costs of trial. It is expensive to prepare for, and try to a verdict, a dispute. Parties can often come to terms in a less expensive, and less risky, setting.
But there is another reason trials are vanishing: the judiciary is killing them.
Anyone can file a lawsuit in the federal courts. It is actually a fairly simple thing to do. The rules require, in most cases, parties to file a complaint containing only a “short and plain” statement of their claim.
Then comes the endless dance of litigation in the form of motions to dismiss, discovery in the form of written questions and depositions, and then motions for summary judgment. Survive all that, and comparatively few cases do, and then there’s yet more paperwork to do, if you want to see a trial by jury.
The federal courts have become an obstacle course few can afford to navigate.
In civil cases involving police misconduct, defendants can ask the court to grant them qualified immunity from suit. This legal doctrine is found nowhere in the text of the constitution. It is a judicial conceit, a means of keeping cases from getting to a jury.
Legal immunities come in many forms. What all have in common is a judicial decision that, as a matter of law, a defendant need not go to trial to face his accuser. If life is akin to a board game, with the rule of law describing the moves the various pieces can make, an immunity is a simple declaration that some pieces are not in the game at all: they are taken off the board.
Qualified immunity gives the benefit of the doubt to police officers in close cases. The doctrine is inspired by the belief that public servants best serve when permitted to do their job. None but the plainly incompetent should face trial.
It’s a noble conceit, but it comes at a cost.
Public officials are public servants. Police officers are trained to use force, even deadly force. They do so in the name of the people they serve. When officers use force, they ought to be held accountable in a public forum. The public, and not a lifetime appointee in a black robe, should decide what is, and what is not, reasonable.
Consider the case of Tamir Rice, the child shot dead in Cleveland, Ohio. Officers responded to a call about a person with a gun. A cop responded, saw the boy, saw a gun, and then shot and killed the 12-year-old.
The officer’s department contends he behaved reasonably given what he was told and what he observed. But lawyers for the child’s family this week released reports from experts of their own, experts who said the officer’s conduct was unreasonable. Perhaps the officer created the very danger requiring the use of force.
Cases about deadly force done in the public name require public trials.
I’ve learned a healthy respect for police officers cross-examining them in open court. I’m less inclined to scream “murder” every time a police officer shoots to kill. There are times when cops, like everyone else, err. But it happens less than the rhetoric on the streets suggests.
Permitting cases of police violence to go to trial will educate the public about police procedure, and deter police officers from engaging in misconduct.
Hiding these cases from the public, as is now so often the case in the federal courts, is bad for everyone.