Holding police officers liable

More than at any time in recent memory, national attention is directed at the problem of police abuse. This should be an impetus for reforms that increase the likelihood that police will be held accountable. Protests across the country continue in response to the failure of grand juries in Ferguson, Mo., and Staten Island, N.Y., to indict police officers who killed young African-American men.

The grand jury's choice to not indict police officer Darren Wilson for shooting and killing Michael Brown touched off riots in Ferguson and demonstrations in many major cities. The protests intensified after a Staten Island grand jury decided not to indict police officer Daniel Pantaleo for killing Eric Garner by a chokehold that was prohibited by police rules.

These instances fit a disturbing pattern of officers being exonerated, especially when the officers are white and the victims are young men of color. It is a pattern familiar to Southern California. The chokehold that killed Eric Garner brings to mind that until its use was banned by the Police Commission, at least 16 people in Los Angeles, almost all African-American men, were killed by the chokehold by LAPD officers. Even with a videotape of a savage bearing, a state court jury in 1992 acquitted the four officers who beat Rodney King and a subsequent federal court jury acquitted two.

Earlier this year, two Fullerton police officers were found not guilty of all charges in killing Kelly Thomas, a homeless man diagnosed with schizophrenia. Medical records show that bones in his face were broken and he choked on his own blood; the compression of his thorax by the police made it impossible for Thomas to breath and deprived his brain of oxygen.

Why the failure and what can be done about it? To begin with, there is the reluctance of prosecutors to aggressively prosecute police officers. The prosecutor in Ferguson did not seek an indictment from the grand jury, instead letting it hear the evidence and decide for itself whether to indict.

Prosecutors depend on police officers in their cases literally every day. Over a decade ago, I did a report on the Los Angeles Police Department in the wake of the Rampart scandal where officers planted evidence on innocent people and then lied in court to gain convictions. I learned of numerous instances where prosecutors did nothing even when they had every reason to know that the police officers were lying. It caused me to conclude there should be special prosecutors to handle cases of police misconduct rather than depend on prosecutors who rely on a close relationship with the police.

The standard for both criminal and civil liability asks whether from the perspective of the officer at the time the conduct was reasonable. There is an understandable desire of jurors to give officers the benefit of the doubt, especially when making split second decisions in what they perceive as life threatening circumstances. A problem arises, though, when the jury or grand jury hears from the officer, but not the victim. It is all too easy for the officer, in hindsight, to magnify the perceived threat to justify his or her actions. When the officer is white and the victim is a young man of color, the reality of unconscious racism also matters as events are interpreted.

A crucial part of the solution must be to require that all squad cars be equipped with cameras and all officers wear cameras to maximize the likelihood that events will be recorded. As the Rodney King trial demonstrated, a recording does not end the need for interpretation, but it can provide much needed evidence.

Also, decisions by the U.S. Supreme Court have made it very difficult for those injured by police misconduct to sue for money damages. This undermines police accountability and denies victims of needed compensation. The court has done this through rulings involving several different legal doctrines, including, most recently, in Plumhoff v. Rickard, 134 S.Ct. 2012 (2014), by ruling that even egregious police conduct was not "excessive force" in violation of the Constitution.

Police officers in West Memphis, Ark., pulled over a white Honda Accord because the car had only one operating headlight. Rather than comply with the officer's request to get out of the car, the driver made the unfortunate decision to speed away. The police chased the car for five minutes and both vehicles reached speeds of over 100 miles per hour. Eventually, officers fired 15 shots into the car, killing both the driver and the passenger.

The Supreme Court reversed the 6th U.S. Circuit Court of Appeals and ruled in favor of the police. Justice Samuel Alito said that the driver's conduct posed a "grave public safety risk" and that the police were justified in shooting at the car to stop it. The court said it "stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended."

This is deeply disturbing. The Supreme Court now has said that whenever a high speed chase could injure others - and that would seem true of a large percentage of high speed chases - the police can shoot at the vehicle and keep shooting until it stops, instead of, say, taking the license plate number and tracking the driver down later, or even shooting out the car's tires.

Also, the Supreme Court has held that local governments can be held liable only if it is proven that their own policies caused the excessive force or other constitutional violations by their officers. Board of County Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S. 397 (1997). This is a standard rarely met. In almost all other situations, employers are held liable if their employees inflict injuries in the scope of their jobs; the same should be true for cities and their police departments.

The Supreme Court has made it very difficult to successfully sue police officers even when there conduct is egregious. The court has held that law enforcement personnel have absolute immunity to civil suits for money damages for the testimony they give, even when it perjury and leads to the conviction of an innocent person. Briscoe v. LaHue, 460 U.S. 325 (1983); Rehberg v. Paulk, 132 S. Ct. 1497 (2012).

Even when officers can be civilly sued, the Supreme Court in recent years has greatly expanded the scope of qualified immunity to make recovery more difficult. The court has changed the test for qualified immunity so that now to hold a government official, including a police officer, liable the conduct must be unreasonable from the perspective of "every" reasonable officer and it must be a right that is established "beyond dispute." Ashcroft v. Al-Kidd, 131 S. Ct. 2074 (2011).

All of these doctrines that undermine police accountability could be changed by the Supreme Court or by Congress amending 42 U.S.C. Section 1983. Neither seems likely at the current time.

The choices of two grand juries, one in Ferguson and one in Staten Island, to not indict police officers who killed unarmed individuals must be seen in the context of a much larger problem with holding police accountable for the use of excessive and even deadly force. There are many causes for the systematic failure to do so, but there are reforms - in practice and in the law - that can make a real difference. Hopefully, the protests across the country will be the impetus for these long overdue changes in our criminal and civil justice systems.